Mansfield v Heather

MEAGHER JA: This is an appeal from her Honour Judge Murrell DCJ against an order permitting the plaintiff in an action, Mrs Heather, to join the appellant, Dr Mansfield, as a second defendant in an action she had bought against her general practitioner, Dr Hari Misra, the second respondent.

In July 1984 Mrs Heather noticed a small growth on her right shoulder and saw Dr Misra about it. He excised the growth and forwarded it to the Mansfield Pathology for examination. Dr Matthews, an employee of the appellant, conducted an examination and prepared a report, which relevantly said: “The lesion is a benign junctional naevus. Excision is complete.” This report was shown to Mrs Heather.

In March 1994 she developed a malignant growth at the same location. She was referred to a Dr Davis who made a further excision for the purpose of obtaining a biopsy. It disclosed a malignant melanoma.

Mrs Heather sued Dr Misra in negligence. She then sought to join Dr Mansfield as a second defendant, as Dr Matthews’s employer.

There was considerable evidence before her Honour as to the 1984 examination. The appellant’s specialist was Professor McCarthy, Mrs Heather’s was Professor Milton. Before examining what they said, it must be recorded that, as both parties agreed, the science of pathology changed very considerably between 1984 and1994, permitting practitioners in that field to make much more scientifically accurate analyses now than used to be the case.

One of the claims made by Mrs Heather was that Dr Matthews should have detected the possibility of a malignancy. I do not see how that could possibly be so. In 1994, Professor McCarthy, re-examining the 1984 slide, said : “There is no ulceration, epidermal invasion, dermal mitoses or other evidence of malignancy.”

Likewise, Professor Milton, the specialist engaged to report for Mrs Heather, said; “ It is very difficult to assess whether any pathologist in 1984 would have given a definitive diagnosis of the lesion.”

This claim of Mrs Heather must, therefore, fail entirely.

An alternative claim of negligence against Dr Matthews (and vicariously against the appellant, Dr Mansfield) was that he did not report that the excision was (or might be) incomplete, and thereby (presumably) giving Mrs Heather the opportunity of having a further excision. There are a variety of answers to this claim: one is that the expert, Professor Milton, said: “The most that anyone might have suggested would be for a patient to ‘keep an eye on it’.” There is also an absence of evidence from Mrs Heather as to what she would have done if she had received such a report, and no evidence what Dr Misra would have done if he received such a report from Dr Matthews.

On what basis, then, did her Honour permit the joinder of Dr Mansfield? The whole of her reasoning is contained in the following passage: “It is in my view that the reports of Professor Milton certainly fall short of establishing a prima facie case that something ought to have happened in 1984, in terms of a significantly different treatment or a wider excision occurring at that time. However, the reports do suggest that a somewhat different approach should have been taken in the 1984 report, and it seems to me that a different approach in the 1984 report may well have resulted in the first defendant conducting himself differently in March 1994.”

But, as the above quotations from the medical reports show, there is nothing in any of the reports which suggest that any “different approach” would have been taken by anybody.

On the sort of application her Honour was considering there is no need for the plaintiff to establish a case , even a prima facie case. However, a plaintiff must prove significant facts to demonstrate that he has a “real case to advance”. This Mrs Heather did not do.

The following orders should be made: 1. That the appeal be allowed. 2 That the notice of motion be dismissed. 3. That the first respondent pay the appellant’s costs of the proceedings before Her Honour District Court Judge Murrell. 4. That the first respondent pay the appellant’s costs of this appeal, but have an order made under the Suitors’ Fund Act.

HANDLEY JA: I agree.

STEIN JA: I agree with Meagher JA.