For the 3rd time in so many months, the Court of Appeal has dismissed a Plaintiff’s appeal in relation to a medical negligence claim.  This time in the matter of Le Brun v Joseph + Or [2010]. WASCA 52, delivered on 24 March 2010.

This decision follows on the heels of the Court of Appeal’s decision in McLennan v McCallum [2010] WASCA 45, in which I acted for the Appellant on Appeal [but not at it’s initial trial]. 

In Le Brun, Mr Le Brun, by his mother (because of his disability, he could not bring the claim in his own right), appealed against the decision of District Court Judge McCann, who at the case’s initial trial had found negligence on the part of GP Dr Joseph and Kalgoorlie Hospital, but was not satisfied that such negligence had caused any loss and consequently dismissed the claim.

The case arose from alleged failure on the part of the Defendants, who were a hospital and general practitioners, to further investigate headaches experienced and reported by Mr Le Brun. 

Mr Le Brun’s case was if further investigations had occurred (either CT or consultant specialist review) his undiagnosed brain abnormality, an Arteriovenous Malformation [AVM] would have been identified prior to its rupture, and treatment therefore would/may have avoided the catastrophic disability he suffered following such AVM’s rupture. 

Interestingly, the trial judge (and on appeal this was supported) found that it was likely there was not actually any connection between the AVM and Mr Le Brun’s headaches.  This raised an interesting legal issue which was not decided on the appeal (McLure P averted to it, but confirmed it did not need to be decided). As indicated below, it was accepted that if a CT scan had been performed to investigate Mr Le Brun’s headaches, this would, regardless of whether they were connected or not, have probably lead to identification of the AVM.

As stated above, Judge McCann was with Mr Le Brun in finding that both the hospital and Dr Joseph ought to have arranged a CT scan and so were negligent in not doing so.

The "problem" with Mr Le Brun’s case was that Judge McCann was not satisfied that Mr Le Brun, had he undergone such investigation and therefore probably had his AVM diagnosed, would have undergone any treatment prior to such AVM’s rupture, which would have avoided such rupture and its catastrophic consequences.  In other words, Judge McCann was satisfied there had been a lack of care, but not that this had made any difference to the outcome.

Judge McCann found, based on the (it seems to me compelling) evidence of Dr McAuliffe and others, that had Mr Le Brun undergone a CT scan and his AVM been diagnosed, he would have been recommended to undergo radiosurgery of the same.  It was common ground that if this recommendation had been followed, it would not, by the time of the rupture, have taken place and so the rupture would not have been avoided.  

In order for there to have been any likelihood of treatment altering Mr Le Brun’s outcome, he had to, for some reason have elected to undergo urgent microsurgery, rather than radiotherapy [confirmed on appeal – see paragraph 138].  The evidentiary problem was that Mr Le Brun could put forward no convincing expert evidence to counter Dr McAuliffe and others evidence that this would not have been at all likely to have been the path recommended. Dr McAuliffe and the other witnesses relied upon by the defendants were particularly compelling, because they were likely to have been the very specialists who would have been involved in Mr Le Brun’s care and the providers of advice to him as to his options etc, had his AVM been diagnosed prior to rupture.

The Court of Appeal lead by Newnes JA concluded that McCann J’s analysis and findings referred to above were correct. On my reading of the decision, no point of significant principle was relied upon in this respect.  The appeal court’s decision involves a careful examination of the evidence and explanation of their reasons for agreement with the trial judge.  The only intriguing comment is at paragraph 183 raising the question of whether the High Court’s decision in Imbree, should now alter the trial judge’s finding that a lower standard of care should be expected of a junior doctor, than had she been more experienced.


This remains a decision which logically I am uneasy about.

The health professionals were negligent and because of this, the AVM was not diagnosed before it’s rupture.

Although compelling as to what was the most likely path, had such diagnosis occurred, the evidence of Dr McAuliffe et al could not exclude the possibility (not probability) that the CT scan may have shown something that would have lead to advice to undergo microsurgery, rather than radiosurgery and so avoided the outcome.  

One expert witness confirmed that he felt there may be signs on the post-rupture imaging that may have suggested narrowing that may, if present pre-rupture have lead to different recommendations being made.   Therefore, although it was most likely that no evidence of the impending rupture would have shown up on CT/MRI etc, there was still a chance something may have been evident.  After all, we do know that within a month of when this CT should have been performed, in July 1999, it did rupture.

It does seem to me harsh that in such a catastrophic outcome, the negligent parties can ‘exploit’ or at least benefit from the unknown (which results from their lack of investigation) and ‘avoid’ liability through an exercise in probabilities, because the certain answer that better care would have given, is lost.  Should the culpability of the defendants not in some way feed into resolution of questions of this nature, when their breach causes the uncertainty in the first place?