New South Wales Court of Appeal CITATION : Mansfield v Heather [2000] NSWCA 36 FILE NUMBER(S) : CA 40033/99 HEARING DATE(S) : 22 February 2000 JUDGMENT DATE : 17 March 2000 Appellant: Dr Colin Mansfield PARTIES : Respondent: Marilyn Anne Heather 2nd Respondent: Dr Hari Misra JUDGMENT OF : Meagher JA at 1; Handley JA at 14; Stein JA at 15 LOWER COURT JURISDICTION : District Court LOWER COURT DC 9167/97 FILE NUMBER(S) : LOWER COURT Murrell DCJ JUDICIAL OFFICER : COUNSEL : Appellant: JA Woods Respondent: JS Drummond Appellant: Blake Dawson Waldron SOLICITORS : Respondent: Bateman Battersby 2nd Respondent: Louise Margaret Mallon CATCHWORDS : Medical Negligence - Failure to detect malignant melanoma - Joinder - Vicarious liability - Where original test result did not indicate malignancy DECISION : 1. Appeal allowed.; 2. That the notice of motion be dismissed.; 3. That the first respondent pay the appellant's costs of the proceedings before Her Honour District Court Judge Murrell.; That the first respondent pay the appellant's costs of this appeal, but have an order made under the Suitors' Fund Act. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40033/98 MEAGHER JA HANDLEY JA STEIN JA 17 MARCH 2000 Dr COLIN MANSFIELD v MARILYN HEATHER & ANOR MEDICAL NEGLIGENCE-FAILURE TO DETECT MALIGNANT MELANOMA-JOINDER-VICARIOUS LIABILITY-WHERE ORIGINAL TEST RESULT DID NOT INDICATE MALIGNANCY Facts: In 1984 Mrs Heather attended her local General Practitioner, Dr Misra to have a small growth on her shoulder removed. The lesion was found to be benign by a pathologist, Dr Matthews. In 1994 Mrs Heather developed another growth on the same shoulder. A biopsy revealed this growth to be malignant. Mrs Heather sued Dr Misra in negligence. She then sought to have Dr Mansfield joined as second defendant, as Dr Matthew's employer. The issue on appeal was whether the trial judge erred in allowing the joinder of Dr Mansfield. An alternative claim was that Dr Matthews was negligent in failing to report the possibility of the lesion not being entirely removed. Held: Expert evidence presented by both parties revealed that there had been significant developments in the field of pathology between 1984 and 1994. Re-examination of the original slide by expert pathologists revealed no indication of the lesion's potential malignancy. On the alternative claim, there was no evidence available from Mrs Heather or Dr Misra as to what they would have done had a report that the lesion was not entirely removed been received. There was nothing in the 1984 report which indicated that a different approach should have been taken from that which was taken. ORDERS 1. Appeal allowed. 2. Notice of Motion dismissed. 3. First respondent pay appellant's costs in the court below. 4. First respondent pay appellant's costs of appeal, but have an order under the Suitors' Fund Act.- 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40033/99 MEAGHER JA HANDLEY JA STEIN JA 17 MARCH 2000 DR COLIN MANSFIELD v MARILYN HEATHER JUDGMENT 1 MEAGHER JA: This is an appeal from her Honour Judge Murrell DCJ against an order permitting the plaintiff in an action, Mrs Heather, to join the appellant, Dr Mansfield, as a second defendant in an action she had bought against her general practitioner, Dr Hari Misra, the second respondent. 2 In July 1984 Mrs Heather noticed a small growth on her right shoulder and saw Dr Misra about it. He excised the growth and forwarded it to the Mansfield Pathology for examination. Dr Matthews, an employee of the appellant, conducted an examination and prepared a report, which relevantly said: "The lesion is a benign junctional naevus. Excision is complete." This report was shown to Mrs Heather. 3 In March 1994 she developed a malignant growth at the same location. She was referred to a Dr Davis who made a further excision for the purpose of obtaining a biopsy. It disclosed a malignant melanoma. 4 Mrs Heather sued Dr Misra in negligence. She then sought to join Dr Mansfield as a second defendant, as Dr Matthews's employer. 5 There was considerable evidence before her Honour as to the 1984 examination. The appellant's specialist was Professor McCarthy, Mrs Heather's was Professor Milton. Before examining what they said, it must be recorded that, as both parties agreed, the science of pathology changed very considerably between 1984 and1994, permitting practitioners in that field to make much more scientifically accurate analyses now than used to be the case. 6 One of the claims made by Mrs Heather was that Dr Matthews should have detected the possibility of a malignancy. I do not see how that could possibly be so. In 1994, Professor McCarthy, re-examining the 1984 slide, said : "There is no ulceration, epidermal invasion, dermal mitoses or other evidence of malignancy." 7 Likewise, Professor Milton, the specialist engaged to report for Mrs Heather, said; "It is very difficult to assess whether any pathologist in 1984 would have given a definitive diagnosis of the lesion." 8 This claim of Mrs Heather must, therefore, fail entirely. 9 An alternative claim of negligence against Dr Matthews (and vicariously against the appellant, Dr Mansfield) was that he did not report that the excision was (or might be) incomplete, and thereby (presumably) giving Mrs Heather the opportunity of having a further excision. There are a variety of answers to this claim: one is that the expert, Professor Milton, said: "The most that anyone might have suggested would be for a patient to 'keep an eye on it'." There is also an absence of evidence from Mrs Heather as to what she would have done if she had received such a report, and no evidence what Dr Misra would have done if he received such a report from Dr Matthews. 10 On what basis, then, did her Honour permit the joinder of Dr Mansfield? The whole of her reasoning is contained in the following passage: "It is in my view that the reports of Professor Milton certainly fall short of establishing a prima facie case that something ought to have happened in 1984, in terms of a significantly different treatment or a wider excision occurring at that time. However, the reports do suggest that a somewhat different approach should have been taken in the 1984 report, and it seems to me that a different approach in the 1984 report may well have resulted in the first defendant conducting himself differently in March 1994." 11 But, as the above quotations from the medical reports show, there is nothing in any of the reports which suggest that any "different approach" would have been taken by anybody. 12 On the sort of application her Honour was considering there is no need for the plaintiff to establish a case , even a prima facie case. However, a plaintiff must prove significant facts to demonstrate that he has a "real case to advance". This Mrs Heather did not do. 13 The following orders should be made: 1. That the appeal be allowed. 2 That the notice of motion be dismissed. 3. That the first respondent pay the appellant's costs of the proceedings before Her Honour District Court Judge Murrell. 4. That the first respondent pay the appellant's costs of this appeal, but have an order made under the Suitors' Fund Act. 14 HANDLEY JA: I agree. 15 STEIN JA: I agree with Meagher JA. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.