Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Varipatis v Almario [2013] NSWCA 76 Hearing dates: 11 and 12 March 2013 Decision date: 18 April 2013 Before: Basten JA at [1]; Meagher JA at [95]; Ward JA at [118] Decision: (1) Allow the appeal and set aside the judgment and orders made by the trial judge on 21 December 2012. (2) Order that the respondent pay the costs of the appellant of the appeal and of the trial below. (3) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROFESSIONS AND TRADES - medical practitioner - scope of duty - morbidly obese patient with elevated liver function test - critical period 1998-2001 TORTS - negligence - breach - whether doctor breached duty of care by failing to re-refer morbidly obese patient to obesity clinic - where patient ignored prior referral - whether duty required exercise in futility TORTS - negligence - breach - whether doctor breached duty of care by failing to refer morbidly obese patient to bariatric surgeon - practice of general practitioners at the relevant time TORTS - negligence - causation - whether doctor's failure to advise patient of true cause of his health problems caused their further deterioration - where doctor supported patient's erroneous belief that health problems partly due to chemical exposure - where patient told that weight loss was needed to save his health TORTS - negligence - causation - whether doctor's failure to refer morbidly obese patient to obesity clinic causative of patient's liver cancer - where patient unwilling to use available services to lose weight TORTS - negligence - where duty involves two alternate courses of action - proper approach to causation Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Cases Cited: Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 Category: Principal judgment Parties: Emmanuel Varipatis (Appellant) Luis Almario (Respondent) Representation: Counsel: Mr D Higgs SC/Ms E Peden (Appellant) Mr D E Graham SC/Mr N J Broadbent (Respondent) Solicitors: Tresscox Lawyers (Appellant) Turner Freeman (Respondent) File Number(s): CA 2013/15638 Decision under appeal Jurisdiction: 9111 Citation: Almario v Varipatis (No 2) [2012] NSWSC 1578 Date of Decision: 2012-12-21 00:00:00 Before: Campbell J File Number(s): SC 2012/100166 HEADNOTE [This headnote is not part of the judgment] Dr Varipatis ("the appellant") appealed from a judgment finding that he was negligent in his treatment of Mr Almario ("the plaintiff"), who had been his patient between August 1997 and February 2011. The plaintiff had worked at the former Union Carbide site, and initially sought treatment from the appellant because the latter had a special interest in disease arising from toxic exposure. The plaintiff was morbidly obese at all relevant times. He had numerous health problems, including elevated liver function test results, and needed to reduce his weight before cirrhosis set in. As a result of failing to lose weight he developed cirrhosis in June 2001 and subsequently liver cancer, which is expected to be fatal. The plaintiff argued that the appellant failed to take the steps that, at the time, a reasonable general practitioner would have taken to treat his morbid obesity, and thus prevent his liver cancer. The trial judge found that the appellant breached his duty of care to the plaintiff in the following three respects: 1. failing to refer the plaintiff to a bariatric surgeon by 30 July 1998; 2. alternately, failing to refer the plaintiff to an obesity clinic or endocrinologist; and 3. failing to refer the plaintiff to a hepatologist by the end of September 2000. However, the trial judge found that only the first breach identified was causally effective. The appellant challenged the findings as to breach of duty and causation. The plaintiff challenged the failure of the trial judge to uphold his claim on additional grounds. The issues for determination on appeal were: (i) whether the appellant breached his duty to the plaintiff by failing to refer him to an obesity clinic or endocrinologist; (ii) whether referral to a bariatric surgeon was necessary in the exercise of a general practitioner's duty of care in 1997-1998; (iii) whether the plaintiff would have lost the necessary weight had the appellant properly advised him about the cause of his liver disease and other health problems; and (iv) whether the plaintiff would have lost sufficient weight had he been referred to an obesity clinic or hepatologist. The Court held, upholding the appeal: In relation to (i) 1. A general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) appropriate referrals. The expert evidence of the general practitioners did not demonstrate any obligation, or even power, to do more than that: [38] (Basten JA, Ward JA agreeing). 2. The plaintiff's conduct did not reveal a willingness to use available services to lose weight. The appellant had referred the plaintiff to Dr Yates, who had in turn referred him to an obesity clinic. The plaintiff did not act on Dr Yates' referral, despite the appellant counselling him to do so. Accordingly, there was no ground to conclude that had the appellant referred the plaintiff to an obesity clinic the plaintiff would have acted on the referral or lost weight. Therefore, this finding of negligence was not causative of the harm suffered: [25], [27], [33] and [34] (Basten JA, Ward JA agreeing). 3. Moreover, if the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, the appellant did not breach any duty in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility. Accordingly, the finding that the appellant breached a duty to "re-refer" the plaintiff to an obesity clinic cannot stand: [38] and [39] (Basten JA, Ward JA agreeing); [114] (Meagher JA). In relation to (ii) 4. The evidence of the expert general practitioners did not support the conclusion that a reasonable practitioner would have referred a patient in the circumstances of the plaintiff to a bariatric surgeon in 1998. The finding also obtained no support from the evidence of the expert endocrinologists. Based on that evidence, it would have been reasonable for an endocrinologist in 1998 not to refer a morbidly obese person to a bariatric surgeon. There is no basis to impose a greater duty on a general practitioner. Absent such a duty, the conclusion of the trial judge in this respect cannot stand: [54], [55], [59] and [63] (Basten JA, Ward JA agreeing); [110] (Meagher JA). In relation to (iii) 5. Accepting that the plaintiff believed that his ill health was at least partly due to exposure to toxic chemicals, and accepting that the appellant should have disabused him of this notion, there was nevertheless no causal link between the plaintiff's belief and his failure to lose weight. To the contrary, the evidence was overwhelming that he had been given advice, not merely by the appellant but by numerous doctors, that he needed to lose weight to save his health: [70] and [72] (Basten JA, Meagher and Ward JJA agreeing). In relation to (iv) 6. The plaintiff did not establish that he would have accepted a referral to an obesity clinic, or obtained the resulting benefits, having failed to act on a previous referral. Nor did the plaintiff establish that weight loss would have followed from a timely referral to a hepatologist. The link between obesity and liver disease not being well understood until 2002, the hepatologists did not suggest that they would themselves take particular steps to deal with weight loss. Therefore, it was not likely that in 1997-2001, a hepatologist would have emphasised the importance of weight loss to avoid a fatal liver condition: ([74], [75], [77] and [88] (Basten JA, Meagher and Ward JJA agreeing). 7. The primary judge erred in the way he formulated and answered the question of factual causation. The finding was that the appellant was negligent in failing to either refer the plaintiff to a bariatric surgeon or re-refer him to an obesity clinic. He upheld causation only in respect of the former. Because the duty could have been satisfied by the latter step, the first omission was not a necessary condition of the occurrence of the plaintiff's injuries: [98], [106] (Meagher JA, Ward JA agreeing). Judgment 1BASTEN JA: Dr Varipatis ("the appellant") appealed from a judgment against him awarding damages in favour of Mr Almario ("the plaintiff"), who had been his patient between August 1997 and February 2011. The trial judge (Stephen Campbell J) found the appellant liable in negligence and gave judgment in an amount of $364,372. 2At all relevant times, the plaintiff was morbidly obese, as a result of which he suffered a range of health problems. His most serious medical condition, which is expected to prove fatal, commenced as liver disease, progressed to cirrhosis and finally to cancer of the liver. The trial judge upheld three particulars of negligence, one only of which was held to have materially contributed to his present state of ill-health. 3The appellant challenged the findings of breach of duty of care and the finding of causation. In addition to resisting the appeal, the plaintiff identified four further findings not made by the trial judge upon which he sought to rely to uphold the judgment in his favour. 4Because of the patient's poor prognosis, the trial was expedited and heard over 8 days in December 2012. Seven days later the trial judge delivered a comprehensive judgment addressing the voluminous evidence and the numerous issues raised. Nevertheless, for reasons set out below the appellant is entitled to have the judgment set aside. Background 5The plaintiff is an Australian citizen, who arrived in this country from Columbia in October 1984, when he was 40 years of age. Although he had been a journalist in Columbia, between 1984 and 1992 he was employed as a cleaner by a series of construction firms. From 1988 to 1992, he worked on the former Union Carbide site at Rhodes. He complained of various illnesses, commencing in April 1991, including backache, headaches, tiredness and pains in his chest. In October 1992, after moving a large piece of furniture, the chest pains caused him to see a doctor, after which he collapsed on the way home and was admitted to Royal Prince Alfred Hospital. He has not worked since that occasion. 6Although he was then living at Whalan in the western suburbs of Sydney, on 13 August 1997 he consulted the appellant, who carried on a general practice in Manly. As explained by the trial judge, "Mr Almario sought Dr Varipatis out because he'd read about him in the newspaper as being a general practitioner who had a particular interest in, amongst other things, environmental medicine extending to disease arising from toxic exposures": at [45]. The trial judge further stated, at [29]: "There can be no doubt that quite independently of any advice from Dr Varipatis, Mr Almario developed the belief that many, if not all of his problems were related to a past history of industrial exposure to toxins including asbestos." 7Asbestos was excluded as a possible cause of his lung condition at an early stage and at least by June 1997: at [30]. Between 1992 and late 1993 the plaintiff saw Dr Paul Torzillo, a thoracic physician at Royal Prince Alfred Hospital, on a number of occasions. He was frequently advised to reduce his weight. When seen by the appellant he gave a medical history which included, in addition to his respiratory complaints, cholelithiasis (a condition of the gallbladder or bile ducts), fatty liver degeneration, sleep apnoea, obesity, diabetes melitus, thoracic and lumbar spondylosis, hypertension, dermatitis and a possible gastric condition, helicobacter pylori. 8The appellant referred him to Dr Ian Gardiner, a consultant chest physician (February 1998) and to another respiratory physician, Dr Deborah Yates (June 1998), who in turn gave him a referral to Professor Ian Caterson's obesity clinic at Royal Prince Alfred Hospital. He was also seen on a number of occasions by Professor Thomas Borody in relation to gastro-oesophageal reflux and helicobacter pylori. The appellant referred him to Dr Teo for neuro-psychometric testing and to Professor Judith Ford in Adelaide, for chromosome testing. In 1999 the appellant arranged for the plaintiff to have an orchidectomy for removal of a testicular mass and in early 2000 an operation on his gallbladder. Throughout the period from approximately 1992 until June 2001 he had elevated liver function tests, the cause of which was not identified, although records from Royal Prince Alfred Hospital in January 1989 indicated that he was, at that stage, drinking heavily. However, he stated that by 1997 he had stopped drinking; he then suffered from either NAFLD (non-alcoholic fatty liver disease) or NASH (non-alcoholic steato-hepatitis). 9Both at trial and on appeal, the longstanding and serious medical conditions suffered by the plaintiff provided a context for the principal complaint, which was that the appellant had failed to take necessary steps to treat the plaintiff's morbid obesity. Thus, the plaintiff accepted that it was his morbid obesity which led to his inflamed liver and hence to cirrhosis and later liver cancer. 10The plaintiff commenced proceedings for damages in the Common Law Division in March 2012. The trial proceeded on the basis of a "further amended statement of claim" which contained the following particulars of negligence: "(f) Failing to order liver function tests on 13 August 1997; (g) Between 1997 and 2003, wrongly considering the plaintiff's symptoms and signs were due to exposure to toxic chemicals in the workplace without first excluding other causes for his condition, including his liver condition; (h) Prior to 30 March 2000, failing to refer the plaintiff to a gastroenterologist or hepatologist for advice and treatment in relation to his persistently elevated liver function tests; (i) Failing to act on the advice of the emergency department at RPA on 28 May 1999 by monitoring the plaintiff's liver function tests and/or referring him to a gastroenterologist or hepatologist; (j) Between 1997 and 2003, wrongly treating the plaintiff for presumed toxic liver disease when there was no proper basis for the diagnosis or treatment; (k) Between May 1999 and June 2003, wrongly considering the plaintiff's persistently elevated liver function tests were caused by cholelithiasis or [ choledocholithiasis]; (l) Following the laparoscopic cholecystectomy of 25 August 2000, failing to refer the plaintiff to a gastroenterologist or hepatologist for advice and treatment in relation to his persistently elevated liver function tests; (m) Between 1997 and 2003, failing to refer the plaintiff to a bariatric surgeon for advice about bariatric surgery; (n) Between 1997 and 2003, failing to refer the plaintiff to an endocrinologist for management of his diabetes; (o) Between 1997 and 2003, representing to the plaintiff that his liver problems were due to exposure to toxic chemicals in the workplace." 11The trial judge found the appellant to be negligent in the following respects, at [113]: "a Failing to refer Mr Almario to a bariatric surgeon for consideration of his suitability for surgery of that type by 30 July, 1998; b In the alternative to (a), failing to take the appropriate steps I have described to re-refer Mr Almario to an obesity clinic; c Failing to refer Mr Almario to a hepatologist, or similarly qualified physician, by the end of September 2000 for the specific investigation and treatment of his liver condition." 12The appellant challenged findings (a) and (b): he did not challenge finding (c), but that was not necessary because the trial judge further held that the only causally effective breach was (a). 13The findings appear to encompass particulars (l), (m) and (n). No reliance was placed in the course of the appeal on (f), nor on (k). Each of particulars (g), (j) and (o) concerned the possible contribution to the plaintiff's liver condition of exposure to toxic chemicals. The plaintiff maintained that, despite the fact that he had sought assistance from the appellant to support civil proceedings against his former employer based on such a claim, the claim was without merit and the failure of the appellant to advise him of that fact constituted a head of negligence which undermined advice that his poor health was due to his morbid obesity. The trial judge did not uphold that complaint, but it was reagitated by way of contention in this Court. Paragraphs (h) and (i) are variations on the grounds upheld, with temporal differences. 14Before considering the basis on which the findings were made, it is necessary to refer to the significance of the dates. With respect to 30 July 1998, the reasoning appears to have been that the appellant was faced with a patient with multiple medical problems, whom he first saw on 13 August 1997 and then on 12 further occasions prior to 30 July 1998. Numerous tests and investigations were undertaken, but by the end of a year, it was unreasonable not to have taken further steps to obtain specialist help for the plaintiff's morbid obesity, particularly having regard to his elevated liver function test results. 15The significance of the second date, being the end of September 2000, was twofold. First, there was reason to suspect that a blockage of the common bile duct might be the cause of the plaintiff's abdominal pains and his acutely rising liver enzymes: statement of appellant at par 128. However, once the gallbladder operation had been undertaken on 25 August 2000 and the liver function tests continued to rise, further steps were required. Secondly, this date was significant because the medical evidence indicated that a significant weight reduction was necessary before cirrhosis occurred and the trial judge held that cirrhosis probably occurred around June 2001. He stated at [135]: "The surgeons were in agreement that had Mr Almario successfully undergone bariatric surgery before he had cirrhosis it was more likely than not he would have avoided progression to cirrhosis, liver failure and liver cancer ...." 16Although there was some evidence suggesting that cirrhosis had set in as early as 1992 - noted at [140] - the trial judge accepted that the plaintiff's liver did not look cirrhotic in 2000, at which time the cholangiogram was normal. Further support for the 2001 date was found in evidence of a 10 year interval from the development of cirrhosis to the development of liver cancer, the latter having occurred in 2011: at [141]. Accordingly, if bariatric surgery was the solution to the morbid obesity, it was necessary, in order to establish causation on the balance of probabilities, for it to be undertaken before June 2001. 17Whether there was a need for bariatric surgery and whether it was the function of a general practitioner to determine such a need were central issues in dispute. At least by the time of the appeal, the plaintiff's primary position was that surgery was a step to be taken only after medical methods for reducing obesity had failed. The trial judge accepted, without contest on appeal, that weight loss was a required treatment for the range of conditions suffered by the plaintiff (referred to as "co-morbidities") and that surgery was only to be considered once conservative medical measures had proved ineffective: at [73], [93]. The term "bariatric surgery" covers a variety of procedures intended to manage obesity, but the particular procedure proposed by the experts with respect to the plaintiff's condition was "laparoscopic adjustable gastric banding": at [125]. 18The plaintiff accepted, at least in this Court, that the preferred course for the treatment of obesity was a medical multi-disciplinary approach. The weight of the evidence given by the endocrinologists and hepatologists (discussed below) was that referral to a surgeon by them would have been possible but unlikely. In practice a referral to a surgeon would seem to have been most likely to come from the obesity clinic. 19In these circumstances, it is significant that the plaintiff did not seek to call any evidence as to the likely course which would have been taken if the plaintiff had been referred to the RPAH obesity clinic, but had been unsuccessful in reducing his weight sufficiently. Although bariatric surgery was undoubtedly available in the years 1997 to 2001 in Sydney, it was not necessarily successful or the benefits long-lasting, nor was it without complications. Duty to refer for surgery (a) the findings 20Against the background set out above, the trial held that "the available modalities of treating morbid obesity (and its co-morbidities) consisted of either a referral to a multi-disciplinary clinic like the RPA Obesity Centre, or bariatric surgery": at [84]. The trial judge also accepted that it was "incumbent upon a medical practitioner to do more than merely point out the risks and counsel weight loss": at [85]. He accepted the appellant's evidence that on 16 October 1997 he had an "in depth discussion [with the plaintiff] ... about morbid obesity, his diabetes, and the need to lose weight": statement of appellant, par 52. The appellant said that he explained that "chemical exposures at the Union Carbide site had probably contributed to his problems but that all three issues, his diabetes, his obesity, and his chemical injuries were all best addressed through weight loss": paragraph 53. The evidence, set out by the trial judge at [73], was accepted at [79]. In this context, the question was whether referral to a bariatric surgeon was necessary in the exercise of a general practitioner's duty of care in 1997-1998. The trial judge stated at [86]: "Dr Varipatis and the four general practitioners who gave evidence concurrently before me were aware of bariatric surgery being performed in the period 1997 to 2003. Mr Almario concedes that there is no evidence from which I could infer that a reasonable general practitioner in the position of the defendant knew that a patient with fatty liver disease should be referred to a bariatric surgeon for treatment of that condition as a discreet entity. In any event this is not the question given the prospective nature of the inquiry. What is clear is that bariatric surgery was available for patients like Mr Almario with significant co-morbidities." 21It was undoubtedly correct to say that the question of breach must be dealt with by a prospective inquiry, although the 'unavailable inference' was not irrelevant to that issue. The distinction between a patient with liver disease and one with significant co-morbidities reflected the appellant's own evidence that he "did not regard bariatric surgery as a treatment specifically for liver disease", but agreed that it was available for patients "who are morbidly obese and who had significant co-morbidities with their obesity": at [90]. 22Based on the evidence of the general practitioners, the trial judge made two findings, namely: "91 From this body of evidence, I am satisfied on the balance of probabilities, that a reasonable general practitioner in the position of Dr Varipatis would refer a patient like Mr Almario with his co-morbidities, and his history of failed attempts to lose weight permanently by conservative means, directly to a bariatric surgeon for consideration for surgery. ... 98 Alternatively to my finding at [91], therefore, in my judgment, on the basis of Dr Jeong's evidence, a reasonable general practitioner in the position of Dr Varipatis should have taken active steps to have referred Mr Almario to a specialist in obesity management by 30th July 1998 to investigate all of the options of Mr Almario successfully treating his disease of morbid obesity. I find Dr Varipatis was negligent in this omission." 23It was clear from the evidence, and from the findings made by the trial judge, that referral to an obesity clinic (such as that at RPAH) should precede a referral to a surgeon. Accordingly, in a temporal sense, the conduct identified in finding (b) should have preceded that in (a). Thus it is convenient to deal first with the failure to refer to an obesity clinic. (b) referral for medical treatment 24When the plaintiff first consulted the appellant his treating general practitioner was Dr Assem. Dr Assem had referred him to a radiologist in relation to symptoms of pulmonary venous congestion and a nodular lesion in his lung. Respiratory problems were then, and continued to be, a significant issue for the plaintiff. On 2 February 1998 the appellant referred the plaintiff to a respiratory physician, Dr Ian Gardiner. Dr Gardiner's report of 20 February 1998 noted that the plaintiff was "grossly obese at 134kg" and concluded that he needed a "massive weight reduction". 25On 27 April 1998 the appellant referred the plaintiff to Dr Deborah Yates for assessment of his pulmonary symptoms. In a report dated 3 June 1998 Dr Yates noted the plaintiff's admission to RPAH in 1991 and that he still had "significant pain in his chest, which is one of his major problems". She continued: "He has been booked in for a sleep study at Concord Hospital recently and this is due for 30 June 1998. His present complaints are of dyspnoea on minor exertion, chest pain and fatigue on walking. He also notices that he stops breathing at night and presumably this is why he is booked for the sleep study. He suffers from diabetes but denies any other past medical history. ... On examination he was very overweight. His weight was greater than my scales! He is only 1.54 meters tall. ... His BMI was 47 to my reckoning. ... He brought with him voluminous copies of notes and his previous x-rays and I will need to sit down and go through these carefully as I am sure this will be useful. His most current chest x-ray taken in February 1998 shows a solitary right upper lobe granuloma and some increased opacification of the lower lumbar fields compatible with his obesity. Today I counselled him about his obesity and I think this is really his primary problem. His BMI is in the range of the morbidly obese and it may well be worth referring him to Ian Caterson at Royal Prince Alfred Hospital who has a special interest in this area and may be able to help him." 26Dr Yates saw the plaintiff again on 23 July 1998. She said that she had explained to him the essential findings which she had discussed with the appellant previously. Her report to the appellant stated: "As you know, I feel that we cannot contribute very much to his symptoms other than by helping him lose weight and accordingly I have referred him back to Royal Prince Alfred Hospital. Ian Caterson has a special interest in obesity and he will also need to be followed up by Col Sullivan in the sleep unit." 27The appellant saw the plaintiff again on 30 July 1998. In his statement in relation to this consultation the appellant said: "110 I told the Plaintiff that the essence of Dr Yates' report was that his lungs would be fine if it were not for his weight and that this was yet another reason why weight loss was imperative for him and the easiest way that he could improve his health. We discussed Dr Yates' recommendation and referral to Dr Caterson at the obesity unit at RPA which might be able to help him. 111 The plaintiff then informed me that he had previously been referred to the same obesity unit at Royal Prince Alfred Hospital 5 years ago. To the best of my recollection, he said words to the effect that although he had lost 30 kilograms at the time, that the weight loss did not make him feel any better with his breathing problems or at all and so he was declining that treatment, and was not going to attempt weight loss." 28The consultation of 30 July 1998 was critical to the reasoning of the trial judge because it was identified as the time by which the appellant should either have referred him to an obesity clinic or to a bariatric surgeon. 29The trial judge dealt with the notes of that consultation in two passages in his reasons. First, he set out the summary of Dr Yates' report: at [40]. He continued: "Dr Varipatis then ruled off on that entry ... and by way of annotation, I infer, commented so [patient] declining this regime. I will return to this, but having regard to Dr Varipatis' evidence I infer that the comment was not a contemporaneous record of something Mr Almario had said." 30In a second passage (at [80]) his Honour again referred to the factual summary and continued: "Dr Varipatis underlined, or I infer ruled off on, this entry. Below the line is what I have referred to already as an annotation. I am unsure when the annotation was made, but the comment so patient declining this regime, in my judgment is not a record of something Mr Almario said. Rather, it is an interpretation made by Dr Varipatis either then or subsequently and in my view is a reconstruction of no evidential value in the case." 31This finding was challenged: to the extent the trial judge held that the appellant's conclusion was a later reconstruction the challenge should be upheld. The Court was informed that the original note in the appellant's handwriting was produced to the Court but not tendered. Nor was the appellant cross-examined as to accuracy of his statement, as set out at [27] above. Accordingly, there was no basis for inferring that the note was other than a contemporaneous record of the appellant's understanding of the plaintiff's position. 32Finding (b) involved failure to refer the plaintiff to an obesity clinic. When he turned to the causation issue in respect of that finding, the trial judge treated it as a failure to refer the plaintiff "to an obesity clinic or endocrinologist": at [152]. Each side obtained evidence from an expert endocrinologist. The appellant's witness, Professor John Carter, stated that he himself did not "start referring people on for bariatric surgery until at least 2005 or 2006", which was after the publication by the NH&MRC on 18 September 2003 of a document entitled "Clinical Practice Guidelines for the Management of Overweight and Obesity in Adults": at [152] and Tcpt, 07/12/12, p 298(30). The plaintiff's expert, Professor Hooper, stated that he had referred patients for obesity surgery in 1976 to 1984, whilst practising in Adelaide. His practice changed when he returned to Sydney because of a change in his sub-speciality, but he stated that patients "like Mr Almario with type 2 diabetes and obesity ... were best managed in a multi-disciplinary obesity clinic so that would be the sort of referral that I would endeavour to do for those particular patients who might need a more specialised approach such as exercise physiologists, meal replacement programs or some other thing that was particularly specialised and particularly if I felt at that time as opposed to my earlier practice they may benefit from bariatric surgery": Tcpt, p 298(10-15). 33Apart from the consultation with the appellant on 30 July 1998, the plaintiff's conduct, including his failure to act on Dr Yates' referral, did not reveal a willingness to use available services to lose weight. There was then no plausible ground for concluding that, had the appellant sought to refer the plaintiff to an obesity clinic at or before 30 July 1998 the plaintiff would have acted on the referral or, if he did, would have lost weight. The trial judge held at [154]: "In view of Mr Almario's history of inability to maintain weight loss in the past, I think it unlikely that a further reference to an endocrinologist or even a specialised obesity clinic would have produced a long-term favourable result. As Mr Higgs pointed out in argument, even when Mr Almario experienced liver failure in 2003, despite initially impressive success at losing weight, he was unable to achieve the target required of him by Dr Wettstein. Accordingly, in my view, unless an obesity specialist referred him for assessment by a bariatric surgeon, medical treatment of his obesity was likely to be unsuccessful and he would not have avoided developing cirrhosis and the complications which have since befallen him." 34That led to the conclusion that the alternative finding of negligence in 1998, namely (b), was not causative of the harm suffered. When combined with acceptance of the appellant's evidence that he (the appellant) had formed a similar view in July 1998 on the basis of his discussion with the plaintiff, the correct conclusion was that there was no breach of duty as identified in finding (b). 35One further matter needs to be noted in this context. It was suggested, though not by the plaintiff, that he had rejected the referral by Dr Yates because, from his earlier experience, he had found that weight loss did not assist with his respiratory problems. However, Dr Yates, the appellant and other medical advisors had identified his morbid obesity as "his primary problem", to use the words of Dr Yates in her report of 3 June 1998. The appellant had advised the plaintiff on 16 October 1997 he had "a lot of medical problems that would significantly affect his health and life expectancy with increased risks of the liver problems, diabetes, and obesity leading to cardiovascular problems such as heart attacks and strokes, and that his problems from chemical toxins would just make all of these issues much worse": Statement, paragraph 53. The appellant explained to the plaintiff that these issues "were all best addressed through weight loss". The plaintiff's evidence, as noted by the trial judge was that "no one advised me about losing weight" and "no one mentioned that the problem of overweight has to do with my condition": at [37]. The trial judge rejected that aspect of the plaintiff's evidence at [44]. The plaintiff also gave evidence that the appellant had told him (Tcpt, 11/10/2012. p 67(10)-(18): "A. My problem wasn't only because of the being overweight, but because of I was suffering of a kidney failure. I had a liver problem, diabetes, and a high blood pressure, among other conditions, but the losing weight wouldn't solve the problem. Q. That's what you believe - that losing weight wouldn't solve the problem? A. Dr Varipatis told me that." 36Later the plaintiff was asked (p 68(5)-(13)): "Q. So you don't necessarily follow advice that's given by doctors; is that the position? A. No one advised me about losing weight. Q. All right, but before you saw Dr Varipatis, is your position that if you had been told to lose weight, you would have - that's by the doctors - you would have? A. I never knew that my problem with the liver was because of being overweight." 37It is apparent that the trial judge rejected all of this evidence. Accordingly, there was no contradiction of the evidence given by the appellant as to his advice to the plaintiff. It is clear, at least on the probabilities, that the plaintiff was told on a number of occasions that significant weight loss was necessary to address all his major health concerns, including risks which did not eventuate, namely cardiovascular risks, which the trial judge accepted were significant: at [83] and [88]. 38As noted above, this evidence not only demonstrated that the plaintiff could not succeed on causation, but was inconsistent with breach of duty. A general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise in unequivocal terms that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) referrals to appropriate specialists or clinics. It will be necessary to refer more specifically to the expert evidence provided by general practitioners, but it suffices to note at this stage that their evidence did not demonstrate any obligation, or indeed power, on the part of a medical practitioner, to do more than that. If the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, there was no breach of duty on the part of a general practitioner in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility. 39Accordingly, the finding that at July 1998 the appellant was in breach of a duty "to re-refer" the plaintiff to an obesity clinic cannot stand. 40This conclusion may appear to support the alternative finding that there was a breach of duty in failing to refer the plaintiff to a bariatric surgeon. It is in this context that it is necessary to consider the expert evidence of the general practitioners. (c) expert evidence - general practitioners 41The trial judge heard evidence from four general practitioners, Dr James Jeong and Dr Bernard Kelly (who provided reports for the plaintiff) and Dr Mark Donohoe and Professor Robert Allen (who provided reports for the appellant). Because the hearing was expedited, there was no time to prepare a joint report before oral evidence was given at trial. The critical question was what a general practitioner in the circumstances of the appellant would have done in July 1998. The trial judge presented the circumstances by providing a synopsis of the appellant's notes of his consultation of 30 July 1998. He stated in part (Tcpt, 10/12/12, p 387(25)): "Now, as you'll know from his notes, he spoke to Mr Almario of Dr Yates' recommendation that the obesity unit at the Royal Prince Alfred Hospital would be an appropriate multidisciplinary referral for Mr Almario. However, Mr Almario, I assume this to be correct, told the doctor that he had gone to that clinic five years ago, he did achieve a weight reduction from 140 to 110 kilograms but he didn't feel any better in relation to his respiratory symptoms, and I interpolate a possible view is he didn't feel any better in relation to other things which were ailing him and just assume[d] he refused to go again. Now, my question is was a general practitioner in the position of Dr Varipatis, as it were, stymied at that stage by what I'll call the patient's recalcitrance or did the doctor have other options available to him to address that issue and if so, what were they?" 42Dr Kelly said in effect that if the GP had communicated all of the things that could be done and if the patient still refused to take the advice, "what the practitioner must do is document ... what advice he has given and what reply the patient has given to him": p 387(45). Having done that, "he could go no further": p 388(5). 43Dr Jeong gave the following response (in part) (Tcpt, p 388(35)-(45)): "An important thing that you said was he actually lost weight from 140 to 110 kilograms. Now, I wasn't aware of this part until just now, and that he felt that he didn't feel any better and that's one of the reasons why he didn't want to go back. There's many reasons why he does not feel better because he has got so many other comorbidities which don't immediately respond to loss of 140 to 110 and possibly at 110 he has not achieved significant weight loss to get the benefits flowing on to his other comorbidities, so I think that needed to be explained as well and I think certainly, I must admit I don't know what the indications for further treatment for obesity were back in 1997, 1998, what it was but I know currently that for a diabetic, a BMI of 35 would be considered a candidate for further interventional management, meaning bariatric surgery." [Emphasis added.] 44Professor Allen, in the course of a discursive answer, stated at p 390(20): "I think at that stage bariatric surgery wasn't really there as a treatment. It might have been on the far horizon but it really wasn't there, so I doubt if that happened." 45Dr Donohoe stated (p 390(40)-(45)): "If we are asking what could Dr Varipatis have otherwise offered, then I do know a little about bariatric surgery and the type of bariatric surgery at that time had far higher risks associated with malabsorption than the current state of the art of bariatric surgery. ... Bariatric surgery was looked at for the evidence in 2010 and found that there was no evidence to support its use in non-alcoholic steatic hepatitis." 46The trial judge then asked Dr Donohoe about the state of knowledge in 1997 to which the witness responded (p 391(3)-(9)): "There was less evidence then. This was a summary of all of the items. So it was that report which said that the dangers of bariatric surgery may have reduced over that decade. Its use went up dramatically. The dangers may have reduced from the more dangerous procedures used early on in bariatric surgery, but that a complete review of the scientific evidence could not support its use in non-alcoholic steatic hepatitis in 2010." 47Dr Jeong was asked by the trial judge "from the standpoint of the GP in the period 1997 to the year 2003, what factors might be relevant to the GP thinking that bariatric surgery ought to be considered?": Tcpt, p 410(25))-(30). Dr Jeong responded: "As with anything in medicine, anything that is invasive would be left as a last resort for patients who did not achieve what we were aiming to achieve with noninvasive treatment. So having exhausted the fact, the areas that are previously discussed in trying to help somebody lose weight, had they failed to do so and the risk factors for him to develop other illnesses arising from morbid obesity still exists, then you would refer the patient for an opinion to see whether this patient as a whole would benefit from invasive procedure or interventional procedure." 48Dr Kelly noted that there were a "number of risk factors ... in this patient because of his obesity", referring to the cardiovascular, the respiratory system, the liver function test and the diabetes, "all of which would have been improved if a bariatric surgeon considered that that was an approach that he would be prepared to take". He agreed that as a general practitioner he was aware in 1997 that bariatric surgery was available. 49Dr Donohoe responded by giving some figures. "Bariatric surgery was available. It was applicable to approximately 4 percent of the Australian population with a BMI over 40. It was carried out on 2,000 people. So if we consider should bariatric surgery have been used by a [GP], two out of every thousand eligible people actually received bariatric surgery. It was a very uncommon procedure in the time period we are talking about. HIS HONOUR: Is that statistically relevant though, or significant? WITNESS DONOHOE: It is, because the population looked at was those with a BMI over 40. The available population was just under 780,000 Australians who on indication, if we thought that the indication was reasonable, would have received it. 2,000 people did receive it. I'm saying it was an uncommon procedure for people in the situation of the same degree of obesity as Mr Almario's." 50Professor Allen agreed with Dr Donohoe that very few people were getting bariatric surgery. He continued (Tcpt, p 412(10)): "It was something that was new, it wasn't common and I have had a number of patients who were grossly obese who had type 2 diabetes with metabolic syndrome, as this gentleman had, who had bariatric surgery of the type being done at the time and who wound up in all sorts of strife with regards to their diabetes. Because it, it meant that they were unable to eat anything at all solid. They were only able to have liquids and most of the liquids they were able to have were high GI or in fact contained sugar which messed with their diabetes." 51The weight of this evidence is not consistent with the proposition that a general practitioner in 1998 had a duty to refer a morbidly obese person to a bariatric surgeon for assessment as to the appropriateness of surgery. The evidence which was most supportive of this conclusion was Dr Jeong's evidence that after non-invasive treatment had failed, "you would refer the patient for an opinion to see whether this patient as a whole would benefit from invasive procedure". However, this evidence had three limitations. First, it did not say expressly to whom the patient should be referred, although it might perhaps be inferred that the assessment was to be made by a surgeon. Secondly, it did not state that in the case of the plaintiff, failure to refer contravened then current standards of practice. Thirdly, Dr Jeong had expressly qualified his initial opening statement by admitting that he did not know "what the indications for further treatment for obesity were back in 1997, 1998". 52The trial judge placed weight on Dr Jeong's evidence. His findings were stated in the following passages: "91 From this body of evidence, I am satisfied on the balance of probabilities, that a reasonable general practitioner in the position of Dr Varipatis would refer a patient like Mr Almario with his co-morbidities, and his history of failed attempts to lose weight permanently by conservative means, directly to a bariatric surgeon for consideration for surgery. 92 The evidence of Dr Jeong impressed me. While initially he said [he] was unsure of the position in 1997 I consider his evidence was clarified by [Counsel for the plaintiff]." 53The judge then discussed the evidence supporting a "multi-disciplinary approach", noting Dr Donohoe's comments that patients "are ultimately entitled to make their own decisions about treatment": at [96]. The trial judge continued: "96 ... However, it was not sufficient simply to make the option known to Mr Almario, for what [it is] worth, and then leave him to take it or leave it, which I find Dr Varipatis did. More pro-active involvement was required. 97 Following Dr Jeong's suggested prescription, in my judgment Dr Varipatis as at that time ought to have referred Mr Almario to a specialist in obesity management and even assisted in making the appointment for him to attend." 54This reasoning was not proffered in support of the first finding of the need to refer to a bariatric surgeon, but rather the alternative finding. However, a fair analysis of the evidence of the expert general practitioners did not support the conclusion that a reasonable practitioner would have referred a patient in the circumstances of the plaintiff to a bariatric surgeon for consideration for surgery in 1998. Even Dr Jeong's evidence did not go so far. It did not provide a basis for the finding of negligence in (a). 55The finding also obtained no support from the evidence of the expert endocrinologists, Professors John Carter and Michael Hooper: see at [32] above. Both had experience dealing with patients in similar circumstances to those of the plaintiff, although Dr Hooper had a speciality practice which limited his relevant experience in 1998 in Sydney (he having formerly practiced in Adelaide). However, he said that he did treat patients with a profile like that of the plaintiff and "would refer those patients on if I felt that they needed a multi-disciplinary approach, which mostly I did, to a specialised obesity clinic": Tcpt, 07/12/12, p 297(15). 56Professor Carter said that he saw "huge numbers of people like him, too many": p 298(22). In his view bariatric surgery was "rarely offered" in the period 1997 to 2003. He himself did not "start referring people on for bariatric surgery until at least 2005 or 2006": p 298(30). He explained: "Bariatric surgery is not an operation just like saying take two Panadol every six hours. You have to think about the long term potential side effects, and I wasn't happy that there were enough data available for me to confidently recommend bariatric surgery between 1997 and 2003 ...." 57Counsel for the appellant (Mr Higgs) then asked him (p 299(13)): "In relation to the period from 1997 to June 2003 were you aware of the availability of bariatric surgery to patients such as Mr Almario or the possible availability? WITNESS CARTER: I'd heard about it being used when I attended meetings. If I did know anybody in Sydney who'd had bariatric surgery I think I could count them on the fingers of one hand. I'm not sure that I even needed one finger for that, but see one of the references I quoted in my report by Dr Dixon was published in 2003 and it referred to 50 patients down in Melbourne. This was as far as I know the only centre in Melbourne that was doing it at the time." 58Counsel then obtained the following responses from each witness: "HIGGS: I take it from the evidence that you've given that the view that you took in terms of not offering bariatric surgery to patients of that type was because as you've been over you thought the technique in Australia was too young, the risks were too great and the complications were not sufficiently fleshed out to be able to recommend it with any degree of certain[ty]. Is that a fair summary? WITNESS CARTER: Yes. HIGGS: Professor Hooper, given the approach that you've heard from Professor Carter in relation to patients such as Mr Almario over this period, do you say that that approach by him with respect to those patients was unreasonable? WITNESS HOOPER: I think that a reasonable approach in that setting is to have a patient with morbid obesity treated in a multi disciplinary clinic where in carefully selected patients bariatric surgery might be offered." 59Although the endocrinologists were not general practitioners, they were experienced in dealing with people with obesity, as one of the causes of type 2 diabetes, and were aware of the consequences for co-morbidities including fatty liver disease. If, as should be inferred from the evidence set out above, it would have been reasonable for an endocrinologist in 1998 not to refer a person with morbid obesity to a bariatric surgeon, it is difficult to identify any basis for concluding that non-referral by a general practitioner would have been unreasonable. No basis was articulated for imposing a greater duty on a general practitioner. 60The trial judge reached a similar conclusion in respect of hepatologists. The treatment of the liver disease required treatment of the obesity. As the trial judge held at [155]: "It is unlikely that a hepatologist would have undertaken much by way of treatment himself or herself; rather the patient would have been referred on for treatment of his obesity. ... [A]s at the year 2000 it would have been necessary for a hepatologist to be satisfied of a repeated failure to lose significant weight by conservative means before bariatric surgery would have been considered ...." 61The trial judge further held at [157]: "Once again, I am of the view that conservative treatment, referred to as medical treatment by the hepatologists, would have failed. And unless Mr Almario was referred to a bariatric surgeon he would not have avoided the progress of his condition to cirrhosis and its complications because he would have been unable to lose sufficient weight by conservative means." 62The trial judge did not go on to consider whether, had there been a referral to a hepatologist in September 2000, he or she would have referred the plaintiff to the obesity clinic and whether they would then have taken steps to refer to a surgeon. Rather, he simply concluded that the failure to refer to a hepatologist was not shown to have contributed in the relevant sense to the injury suffered by the plaintiff. 63Given the evidence outlined above, the evidential basis for finding (a) was absent. The conclusion of the trial judge in this respect cannot be accepted. 64Finding (a) being the only basis upon which the trial judge upheld liability, if that is rejected, the judgment must be set aside unless there is some alternative basis, of the kind identified in the amended notice of contention, for supporting the judgment on other grounds. Contention: advice as to toxicity 65The primary contention of the plaintiff was that, properly advised as to the cause of his liver disease and other problems, he would, on the probabilities, have lost the necessary weight and kept it off: respondent's submissions, par 75. 66The submissions commenced with the proposition that "when he saw the appellant in 1997, [the plaintiff] first became aware that he was suffering a severe environmental toxin-induced illness": par 60. That proposition was not accurately stated. In his affidavit of 17 August 2012, par 26, the plaintiff stated: "In August 1997, I first attended Omni Care Centre and saw Doctor Emanuel Varipatis. I remember reading in the newspaper that he was a specialist in toxic chemicals and that he was the only one of his kind in Sydney. As I was not feeling very well, I thought to make an appointment to see him. I believed that all my problems were related to my work at the Union Carbide work site. I believed I had been poisoned by chemicals as a result of working there." 67The plaintiff commenced proceedings in the District Court seeking damages for the harm suffered from exposure to toxins in the course of his employment. The appellant was the primary medical witness providing support for that claim, although his opinions were based on a number of tests which confirmed mildly elevated levels of toxins in his blood and urine. Both the test results and the opinions were rejected by a number of reputable experts and no attempt was made in these proceedings to support them as scientifically sound. The question for present purposes, however, was not the reasonableness of the opinions provided by the appellant to the plaintiff and his solicitors for the purposes of litigation, but the advice he gave the appellant with respect to treatment of his conditions. Critically, the question was whether any advice he gave as to the likely cause of his conditions materially contributed to the failure of the plaintiff to deal with the immediate cause of his continuing ill-health, namely his morbid obesity. 68The trial judge held at [79]: "Mr Almario's morbid obesity and related conditions must have been obvious to any medical practitioner examining him. Most of those from who[m] I have received reports seemed to have raised the question of his obesity with him. And I accept that Dr Varipatis would likewise have done so." 69The trial judge accepted, as disclosed in the contemporaneous notes made by the appellant and in his statement, that the appellant discussed with the plaintiff his obesity and the need for him to lose weight, specifically in his consultation on 30 July 1998. The plaintiff gave evidence that no doctor had advised him that his liver problems were related to his obesity or that, if he did not lose weight, he could die from liver disease: Affidavit, 17 August 2012, paragraph 36. However, the evidence was replete with references to medical advice that he needed to lose weight to address his health generally. His Honour concluded from contemporary records and objectively established facts, together with the apparent logic of events, that "the account given by Mr Almario of his past medical history, the advice given about losing weight and his mixed success in that regard should be rejected": at [44]. Quite apart from the inadmissibility of evidence from him as to what he might have done had the appellant given him proper advice about the cause of his liver condition (Civil Liability Act 2002 (NSW), s 5D(3)) the factual circumstances accepted by the trial judge effectively precluded any finding on the balance of probabilities that such advice would have led him to take a different course in respect of weight loss. 70The evidence was overwhelming that he had been given advice, not merely by the appellant but by numerous doctors, that he needed to reduce his weight to save his health, if not his life. He did not say he had ignored or rejected that advice because he believed the cause of his obesity was toxicity; rather, he claimed that he had "always followed the advice of doctors": Affidavit, par 36. He did not say that he believed toxicity caused his obesity: rather, he stated that he began "to put on weight" on arrival in Australia in 1984 because he found "the rich food in Australia to be a real novelty and loved eating it": at paragraph 34. The "logic of events", to which the trial judge referred, meant that the question of obesity was treated by medical practitioners as relevant to most aspects of his ill-health, and not merely his liver disease. Although it is his liver which has failed him, in the period 1997-2001 his obesity raised serious risks, for example, of cardiovascular disease, which could themselves be life-threatening. In short, the plaintiff failed to establish on the probabilities that his belief as to his exposure to toxic chemicals materially contributed to his failure to lose weight. 71The trial judge made no finding of such a causal connection. In discussing the contributory negligence of the plaintiff, the trial judge stated at [166]: "There is no evidence that anyone gave him any specific advice about the relationship between his obesity and the risk of progressive liver disease having the dire consequences he has now suffered. It seems improbable that any such advice was given to him, given that the interrelationship of obesity, diabetes and liver disease was not clearly understood until 2002. On the other hand, one must infer that as every doctor told him to get thin, some explanation must have been given of some of the specific health risks to which his obesity subjected him." 72Accepting that the plaintiff believed that at least part of his ill health was due to toxic chemicals, and further accepting that the appellant should reasonably have advised him that there was no medically acceptable evidence to support that conclusion, there is nevertheless no causal link established between his belief and his failure to lose weight. The failure to disabuse him of that belief has not been shown to be causally linked to his failure to lose weight. Accordingly, the first two grounds in the plaintiff's notice of contention must be rejected. Contention: consequence of referral to an obesity clinic or hepatologist 73The plaintiff challenged the failure of the trial judge to find that, had he been referred to an obesity clinic or a hepatologist, either in 1998 or in September 2000, he would have lost sufficient weight by June 2001 to avoid the onset of cirrhosis and consequent liver cancer, without the need for referral for surgery. 74This contention must be viewed in two parts. The first limb depended on referral to an obesity clinic. The contention assumed that had such a referral been provided, the plaintiff would have attended the obesity clinic with positive consequences. As already discussed, Dr Yates made such a referral and the plaintiff did not attend. Further, when that matter was discussed at the consultation on 30 July 1998, the plaintiff again articulated to the appellant his intention not to accept that course. It follows that the plaintiff did not establish that he would have accepted such a referral, nor that he would have obtained the benefits which might have followed from taking that step. 75The second limb of the contention invites the conclusion that weight loss would have followed from a timely referral to a hepatologist. However, that in turn involved two assumptions. The first was that the hepatologist would identify obesity as the cause of liver disease, which the trial judge considered unlikely before 2002. The second was that the hepatologist would take some step with respect to treatment of obesity other than advising the patient to lose weight, to diet and exercise and possibly referral to an obesity clinic. The evidence of the expert hepatologists, Associate Professor Martin Weltman, Associate Professor Simone Strasser and Dr Christopher Vickers, was that such advice would have been given. Apart from discussing the possibility of referral to a bariatric surgeon, the hepatologists did not suggest that they themselves would take particular steps to deal with weight loss. Accordingly, relevantly for this contention, the possibility of referral to a hepatologist, to achieve non-surgical weight loss, carried the matter no further. Nor was it likely that, in 1997-2001, a hepatologist would have emphasised the importance of weight loss in order to avoid a fatal liver condition. 76The fourth contention relied upon by the plaintiff sought a finding that as a result of referral to a hepatologist, the plaintiff would have been referred to a bariatric surgeon and would, as a result, have lost sufficient weight by June 2001 to avoid his injuries. 77There are a number of difficulties with this contention. First, it seems to assume that the hepatologists would have been particularly concerned about the plaintiff's obesity. However, that was not indicated on the evidence. Rather, as noted above, the trial judge was satisfied that the link between obesity and liver disease was not well understood until 2002. It is also inconsistent with the approach of the expert hepatologists to the need for weight loss, which was to give emphasise the class of co-morbidities, rather than focus on the fatty liver disease. 78Secondly, it is by no means clear that the hepatologists would have referred to a bariatric surgeon in 1997-2000. In the course of their oral testimony, the trial judge asked the following question at Tcpt, 10/12/12, p 457(10): "In your view was there any time after October 1997 when some medical intervention could have been carried out that would have been effective to avoid liver failure in 2003?" 79Professor Weltman responded: "My personal view is that that would be highly unlikely, and we have to go back to the context of what we knew in 1997, and in 1997 we knew obesity wasn't a good thing for people with fatty liver disease, we knew type 2 diabetes perhaps wasn't a good thing, and that certainly hadn't been fully clarified and accepted by 1997. ... [T]he state of advice at that time, and still the current advice, for example, by the National Institute of Health on this condition is that you would advise your patient to lose weight, to diet and exercise. We can't always predict that that has a beneficial impact on these people, but it's the best advice of the time." 80Professor Strasser agreed with Professor Weltman (p 458(20)). Dr Vickers noted that there were "only three options", namely doing nothing, providing medical treatment or undertaking surgery. He continued: "The medical treatments he would have had would have been seeing a dietitian, counselling, graduated exercise and perhaps whatever weight loss tablet was around at the time or going on to a certain type of diet that we call Modifast or Optifast, which is a meal replacement diet with liquids, and over a period of time with that sort of programme he may lose weight. Now, if he cannot do that or he doesn't lose weight then if you've done nothing and you've failed medical treatment then it's up to the doctor to consider what else you can do, and the only other thing you can do is consider a surgical option. Then you have to think to yourself what sort of surgical options are there available in 1997 for this patient who was suffering from multisystem disease of sleep apnoea, hypertension, diabetes and NASH as a component. What else could a surgeon do, or a physician do who would refer to a surgeon, and the only thing that could have been done is to discuss with him the role of bariatric surgery." 81Professor Strasser thought that bariatric surgery "was not routine practice at that point for patients with known liver complications" and she "certainly never referred anybody in that circumstance for bariatric surgery". "From a hepatologist's point of view, ... these people are usually under the care of other physicians, particularly the endocrinologist managing diabetes, and I note in this gentleman that diabetes was a big problem and it was poorly controlled. Then apart from me saying the treatment of the liver disease is the same as the treatment for your diabetes, and I would leave those discussions and those management plans usually back with endocrinologist or the obesity service that the patient was attending if they are attending one, rather than me specifically making recommendations about how to manage the weight loss programme. So as a liver specialist I would say this liver disease is due to obesity, your risks are related to cardiovascular risk and the complications of your diabetes, probably more so than the liver disease, and therefore the management should be as according to your endocrinologist and obesity specialist, if there is one, with regards to how that should be managed. As a hepatologist I wouldn't make recommendations at that time, nor would I now." [Tcpt p461(25)-(40)] 82There was then a debate between Professor Strasser and Professor Weltman on the one hand and Dr Vickers on the other as to the state of knowledge of the connection between obesity and liver disease. Dr Weltman noted at p 464(36): "Dr Vickers refers to the august body of the National Institute of Health in the USA. If you look at their website, even as of today they do not recommend bariatric surgery as a treatment. You can go and look at the website right now; weight loss and exercise is all that's mentioned as part of their treatment, even currently today. ... So I didn't refer anyone between that period, 1997 and 2002, with my special interest in this condition and I followed a huge group of patients as part of my doctoral thesis. We didn't refer a single person for bariatric surgery during that period." 83Professor Weltman also agreed in substance that with a person with co-morbidities, there would be cross-consulting with colleagues, including endocrinologists: at pp 465-466. 84Dr Vickers took a different approach, primarily on the basis that bariatric surgery should be considered as one option in circumstances where the consequence of not relieving obesity was transplantation, which is a "much more serious and potentially hazardous operation": p 466(15). 85The trial judge dealt with the evidence of the hepatologists at [127]-[130] and at [155]-[157]. He concluded at [156]: "But I think I can infer from this evidence that surgery was an option that would have been considered for a patient with Mr Almario's history, but not by a hepatologist himself or herself as at September 2000. Someone else would consider the option after the patient had been referred on by the hepatologist." 86That view was consistent with the views of Professors Strasser and Weltman and also with the evidence of Professor Borody, a gastroenterologist, upon whom the trial judge also relied. Dr Vickers' explanation that bariatric surgery would be preferable to a liver transplant assumed that the latter would necessarily (or predictably) follow from the failure to undertake the former. There were of course other risks which might have justified similar reasoning, but which were not specific to the practice of hepatology. 87Furthermore, although it is true that the plaintiff underwent other surgery as recommended, it might be inferred that a person who was unwilling to attend the obesity clinic to achieve weight loss might have been unlikely to consent to surgery for a similar purpose. 88The trial judge expressly declined to make the finding now sought: at [155] and [157], see [62] above. There is no reason to depart from the finding of the trial judge in this respect. Accordingly, the fourth contention should be dismissed. Conclusion 89The plaintiff sought out the appellant in the hope of obtaining medical support for his belief that his ill health was due to workplace exposure to toxins. He obtained that support, which proved to be scientifically ill-founded. He then complained that the appellant failed to treat his conditions, and in particular to that which is likely to prove fatal, namely the liver disease, by the exercise of reasonable care as a general practitioner. 90The treatment which he required was either medical or surgical assistance to reduce obesity. He himself had refused medical treatment (by way of referral to an obesity clinic) thus rejecting advice not only from the appellant, but from Dr Yates. 91To complain that his own refusal to accept such a referral demonstrated a lack of reasonable care on the part of the appellant was not, in broad terms, an attractive proposition. It invited the conclusion that the law required a medical practitioner to take a step which was, on the probabilities, futile. For reasons explained above, that claim failed both to establish a breach of duty and causation. 92The finding of negligence by the trial judge was based on the proposition that the appellant should have referred the plaintiff to a bariatric surgeon by 30 July 1998. That finding cannot stand. It is not necessary in the circumstances to consider other bases upon which the appellant challenged the findings of the trial judge, including the finding that the plaintiff's liver was not cirrhotic until about June 2001. It is also unnecessary to consider whether surgery would have been offered to a patient who had declined available medical treatment. 93The plaintiff sought to maintain the judgment on the basis of four contentions which had not been accepted by the trial judge. Each of those has been rejected. 94It follows that the judgment and orders of the trial judge must be set aside. The plaintiff (the respondent in this Court) must pay the appellant's costs of the appeal and of the trial below. He is entitled to a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. 95MEAGHER JA: In a judgment delivered in proceedings which involved a number of complex factual and legal issues and which had to be dealt with expeditiously in view of Mr Almario's severe medical condition and poor prognosis, the primary judge summarised his findings as to the appellant's negligence as follows: "[113] I find Dr Varipatis negligent in the following respects: (a) Failing to refer Mr Almario to a bariatric surgeon for consideration of his suitability for surgery of that type by 30 July, 1998; (b) In the alternative to (a), failing to take the appropriate steps I have described to re-refer Mr Almario to an obesity clinic; (c) failing to refer Mr Almario to a hepatologist, or similarly qualified physician, by the end of September 2000 for the specific investigation and treatment of his liver condition." 96I agree with Basten JA that the appeal from the primary judge's decision based on those findings should be allowed. My reasons for doing so include that even if one accepts the primary judge's negligence findings (a) and (b), his Honour erred in concluding, based on other findings that he made, that Mr Almario had established factual causation. 97I will address this matter first. I will then address the other issues which arise in the appeal. The appellant challenges the primary judge's negligence findings (a) and (b). He does not challenge finding (c). By his amended notice of contention, Mr Almario advances four reasons as to why the judgment should be upheld. The first two challenge the primary judge's failure to find that the appellant was negligent in advising Mr Almario that his liver problems and other symptoms were due to his exposure to toxic chemicals when working at the Union Carbide site at Homebush Bay. The remaining two contentions challenge the primary judge's holdings that factual causation was not established in relation to negligence findings (b) and (c). If the contention in relation to negligence finding (b) is upheld, it would provide an answer to the first matter to which I have referred. If the contention that factual causation should have been found in relation to negligence finding (c) is upheld, the judgment also would be upheld because the appellant has not challenged that negligence finding. Negligence findings (a) and (b) and factual causation 98As expressed in [113], the primary judge's finding as to negligence was that Dr Varipatis was negligent in failing, by 30 July 1998, to do either of referring Mr Almario to a bariatric surgeon for consideration of his suitability for such surgery or taking appropriate steps to re-refer him to an obesity clinic. That way of understanding the primary judge's finding reflects the reasoning which precedes it. 99The primary judge first identified the "available modalities of treating morbid obesity" as "either referral to a multi-disciplinary clinic like the RPA Obesity Centre, or bariatric surgery" ([84]). The question which his Honour then addressed was whether a reasonable doctor in the appellant's position would have taken either of those precautions: [85]. At [91] he found that "a reasonable general practitioner in the position of Dr. Varipatis would refer a patient like Mr. Almario ... directly to a bariatric surgeon for consideration for surgery". At [98], after having referred to evidence of Dr Jeong, he continued: "[98] Alternatively to my finding at [91], therefore, in my judgment, on the basis of Dr. Jeong's evidence, a reasonable general practitioner in the position of Dr. Varipatis should have taken active steps to have referred Mr. Almario to a specialist in obesity management by 30th July 1998 to investigate all of the options of Mr. Almario successfully treating his disease of morbid obesity. I find Dr Varipatis was negligent in this omission." 100There was some discussion in argument before this Court as to whether these findings were true alternatives. For example, it was suggested that if there was still utility in referring Mr Almario to an obesity clinic for a further assessment and possible treatment by a range of specialists, it would have been premature to refer him directly to a bariatric surgeon. This discussion ultimately focused on the appellant's challenges to the underlying findings of negligence and in particular finding (a). 101On my reading of his reasons, the primary judge has, rightly or wrongly, found that the appellant's duty up to 30 July 1998 to exercise reasonable care could and should have been discharged in one or other of the two ways identified. In his written submissions to this Court, Mr Almario proceeded on the same basis. Those submissions noted (at paras 13 and 14) that the primary judge had found that the reasonable response of a general practitioner to Mr Almario's long-term morbid obesity and life-threatening co-morbidities, in circumstances where he had failed to lose weight in the past using conservative measures, required that he be referred "directly to a multi-disciplinary obesity clinic or to a bariatric surgeon". 102Thus, the finding concerning the appellant's negligence as at 30 July 1998 was not that he should have taken each of the courses of action which are the subject of findings (a) and (b). This distinction has significance for the question of factual causation. 103As the primary judge observed, a finding of negligence constituted by an omission to act or advise requires consideration of the probable course of events had, in this case, the appellant not been negligent in the respects found: Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 at [18]. This made it necessary to consider what was likely to have happened if the appellant by 30 July 1998, either had referred Mr Almario to a bariatric surgeon or taken active steps to refer him to an obesity clinic. 104The primary judge addressed each part of that question separately. In relation to the first part, he concluded that had Mr Almario been referred to a bariatric surgeon in July 1998, surgery would have been undertaken and been successful and, more likely than not, Mr Almario's NASH (non-alcoholic steato-hepatitis) would not have progressed to cirrhosis of the liver or led to liver failure and liver cancer: [150]. In relation to the second part, he found it unlikely that reference to a specialist obesity clinic would have resulted in Mr Almario achieving sufficient weight loss to avoid his developing cirrhosis and the separate complications of that disease, liver failure and liver cancer: [154]. 105On the basis of the first of these findings, the primary judge concluded that Mr Almario had established that the appellant's negligence was a necessary condition of his developing cirrhosis and its complications: esp [151], [158], [188], [189]. There was no issue as to the scope of the appellant's liability for that harm, if factual causation was established. 106In my view, having regard to the finding of negligence made, the primary judge erred in the way he formulated and answered the relevant question of factual causation. That question was not whether the omission to take one or other of the alternative precautions, which it was found the appellant should have pursued, was a necessary condition of the occurrence of Mr Almario's injuries. It was whether the fact that the appellant took neither of those precautions was a necessary condition of the occurrence of the relevant harm. That question should have been addressed and answered in the negative. On the primary judge's findings, the appellant could have discharged his duty of care by referring Mr Almario to an obesity clinic. Had he done so, the outcome for Mr Almario was not likely to have been different. The respondent's case was not that a medical practitioner faced with those alternative methods of treatment would have preferred referral to a bariatric surgeon. Nor was it that if the appellant had properly addressed those alternative treatments he would have opted for direct referral to a surgeon rather than to an obesity clinic. 107This analysis leads to the result that the appeal should be allowed unless the primary judge's holding (at [154]), that factual causation was not established in relation to negligence finding (b), is reversed on appeal. That argument is made by ground 3 of the amended notice of contention. The challenges to negligence findings (a) and (b) 108The appellant's challenge to negligence finding (a) was based principally upon the absence of evidence from general practitioners which supported the conclusion that in July 1998 a "reasonable general practitioner" in the position of the appellant would have referred a patient like Mr Almario directly to a bariatric surgeon. The appellant also points out that, as the primary judge found, it was unlikely that Mr Almario would have been referred to a bariatric surgeon if he had first been referred to an obesity clinic: esp [130], [152], [153], [156]. In such a clinic he would probably have been treated by a hepatologist or endocrinologist and it was not the standard practice of such specialists at that time to refer patients for bariatric surgery because the benefits and complications of bariatric surgery were controversial and not scientifically proven or well understood. 109The expert evidence of the four general practitioners is referred to by Basten JA (at [41]-[50]). I agree for the reasons his Honour gives that this evidence did not support the conclusion of the primary judge. Dr Kelly was aware at that time that bariatric surgery was available but did not identify it as one of the options or treatments which he would then have raised with a patient (Black 2/494-495). Dr Donohoe also agreed that bariatric surgery was available. However, it was a very uncommon procedure and the type of surgery then practised was attended by far higher risks than is now the case (Black 2/497-498; 518). Professor Allen said that at the time bariatric surgery "wasn't really there as a treatment" and that very few people were getting it (Black 2/497, 519). None of this evidence justified negligence finding (a). 110The remaining general practitioner evidence was that of Dr Jeong, who commenced practice in 1996 (Black 2/489). In response to a question concerning the treatment of morbid obesity, he conceded that he did not "know what the indicators for further treatment for obesity were back in 1997, 1998" (Black 2/495). He gave no evidence as to any relevant standards of practice in 1997 or 1998. He gave further evidence as to what might have happened in 1998, which is described by the primary judge as having "clarified" his evidence in which the earlier concession was made. That further evidence is extracted by Basten JA (at [47]). It was given in response to a question from the primary judge that partly assumed a matter in issue. That was whether a general practitioner in 1998, acting in accordance with good practice, would have addressed the possibility of bariatric surgery. In terms his answer did not describe considerations which would have been present to the mind of a practitioner in 1997 or 1998, as distinct from at the time his evidence was given. Nor did Dr Jeong make clear in that answer that any referral would have been to a bariatric surgeon rather than to a multi-disciplinary clinic for an opinion as to whether the patient "as a whole would benefit from invasive ... or interventional procedure" (Black 2/517). The interpretation of this evidence as being that any referral would have been to such a clinic rather than to a surgeon is more consistent with Dr Jeong's later evidence that a multi-disciplinary approach to weight loss was the "best we have" (Black 2/520). The primary judge relied upon that later evidence as supporting negligence finding (b). Understood in this way, Dr Jeong's evidence does not support the position that in 1998 a patient with the history of Mr Almario would or should have been referred directly to a bariatric surgeon. Furthermore, even if it was understood as involving some support for that proposition, it was not sufficient in the face of the other expert evidence to establish that a reasonable general practitioner would have taken that course at that time, particularly when the alternative of referring to a clinic remained available. 111The appellant challenges negligence finding (b) on the basis that the evidence did not support the finding made by the primary judge (at [98]) that as at 30 July 1998 he had not taken active steps to refer Mr Almario to a specialist in obesity management, and therefore should have done so. 112The events prior to February 1998, which are relevant to this question, are the subject of findings by the primary judge (at [73], [79], [85]). The subsequent events leading up to and including 30 July 1998 are referred to in some detail by Basten JA (at [24]-[31]). I agree for the reasons that his Honour gives that the challenge to the primary judge's finding (at [80]), concerning the appellant's consultation with Mr Almario on 30 July 1998, should be upheld. The appellant's clinical note of 30 July 1998 recorded: "So pt. declining this regime" (Blue 12/6109). The appellant's evidence was that his usual practice in respect of notes of consultations was to write them at the time of each consultation (Blue 12/5892) and that on that day Mr Almario told him that he was declining treatment at Dr Caterson's clinic at Royal Prince Alfred Hospital (RPA) and "was not going to attempt weight loss" (Blue 12/5908). None of that evidence was challenged by cross-examination and there was no basis put forward for rejecting the evidence of a witness who the primary judge described (at [79]) as "an honest witness doing his best after a long period of time to give an accurate account". 113The evidence was that on 23 July 1998 Dr Yates had recommended to Mr Almario that he see Dr Caterson at RPA so as to help him "lose weight" and that Dr Yates had provided him with a referral to do so. The appellant's evidence was that he had a discussion with Mr Almario on 30 July 1998 about that recommendation and referral in which Mr Almario said that he was going to decline that treatment and was not going to attempt any weight loss. In that discussion, the appellant explained to Mr Almario why "weight loss was imperative for him and the easiest way that he could improve his health" (Blue 12/5907). 114This evidence indicates that, as at 30 July 1998, active steps had been taken to refer Mr Almario to a specialist in obesity management. Those steps had been taken by Dr Yates, who had spoken to Mr Almario on two occasions in June and July 1998 about seeing Dr Caterson and provided him with a referral to enable him to do so. The appellant was aware of this history, having received copies of Dr Yates' reports. His evidence was that he discussed those reports with Mr Almario. In the circumstances, he did more than simply "make the option [of such treatment] known to Mr Almario" (cf [96]). There was no point in the appellant providing him with a further referral to Dr Caterson in circumstances where Mr Almario had such a referral and had indicated that he did not propose to act on it. A reasonable practitioner would have been justified in concluding that the patient had been given advice that he should see a specialist in obesity management and been provided with a referral so that he could do so. Having regard to the patient's statement that he did not propose to see Dr Caterson, or attempt weight loss, there was no point in providing him with a further referral. The amended notice of contention 115I agree for the reasons given by Basten JA that Mr Almario's four contentions should be rejected. Conclusion 116In the absence of any basis for supporting the judgment on grounds other than those relied upon by the primary judge, the judgment and orders must be set aside. That follows from the first matter which I have addressed above. It also follows because the challenge to negligence finding (a) should be upheld. 117I agree with the remaining orders proposed by Basten JA. 118WARD JA: I agree that the appeal should be allowed for the reasons set out in Basten JA's judgment and I agree with the orders proposed by his Honour. If the findings of negligence in [113(a) and (b)] are read as a composite finding, or the introductory words to (b) have that effect, then I agree that the conclusion of Meagher JA on that aspect of the appeal would follow. As it is, given that the same result follows it is not necessary to determine how the alternative findings operate in this case. ********** 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. Decision last updated: 18 April 2013