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Assessment of damages – Cancer cases


Kite v Malycha 10/6/98 [1998] SASC 6702 Perry J [(1998) 71 SASR 321]  P(f) business partner victim in 1994 when 32 (35 at trial) of medical negligence in that doctor took a needle biopsy of a lump in her breast, but failed to take appropriate steps in response to report showing high suspicion of carcinoma. If cancer had been diagnosed in Dec 94 appropriate treatment could have cured it or at least greatly extended the life expectancy she now has. In Sept 95 P had breast surgery, but by this time she was suffering a ductile carcinoma which was metastatic. Damages assessed on basis of a likelihood of successful treatment as opposed to a mere chance. 41 years reduction of life expectancy. Hair loss due to chemotherapy, “pain and discomfort associated with progressive reduction in her physical movements and capabilities and an increasing dependence upon others” @ 339. Would have probably experienced some of this if diagnosis had been made earlier in any event. Business activities severely curtailed and loss of ability to perform domestic chores and care for the family (see ‘Home maker’ commentary)

PNEL $40,000; FNEL $5,000; Loss of life expectation $5,000; PEL $43,000; FEL $363,000; Vol Assist $25,000 (Past), $5,000 (future); specials $23,000; Int on past loss $8,600 Total $517,600


See ACT case of Brown v Willington 24/10/01 [2001] ACTSC 100 Crispin J where late diagnosis of breast cancer which was probably already incurable. Lumps not detected until 7 months after initial consultation. Even if cancer had been detected then treatment may only have had a limited effect – chance life may have been extended though. “This was an action for damages for negligence in the provision of medical diagnostic services as a consequence of which lobular carcinoma in the [P’s] left breast remained undetected. … [Due to delayed treatment] the [P] had lost a 40 to 50 per cent chance for living for a period of ten years, at least a 20 per cent chance of living for twenty years and what was described as a ‘real’, though otherwise unquantified, chance of living for as long as fifty years [99]. … [P] had endured more than six years during which her body had been ravaged by an aggressive, invasive cancer. She had had to endure pain, discomfort and indignity. Her enjoyment of the normal amenities of life had been severely disrupted. She had been unable to care for her children as she would have wanted, to maintain a normal sexual relationship with her husband and to return to her career as she had planned. She had had to confront the inevitability of her own death and to contend with fear, grief, sadness and no doubt a maelstrom of other negative emotions. She had had to witness the anguish of her husband and children, to wonder how her death would affect them and to know that she was unable to do anything to effectively assuage their pain. This had proved so distressing for her that on at least one occasion she had told her husband to leave and find someone else so that neither he nor her sons would have to endure ‘more heartache’. She had had to accept the fact that she would not see her sons grow up or be present to care for them and guide them during their development. … [S]he had been acutely aware of her plight and had suffered greatly. …[M]uch of this suffering was unavoidable. Even if the cancer had been diagnosed in August 1995, a more timely surgical intervention and other treatment may have extended her life span only marginally. However … there would have been real chances of her having survived for substantial periods of time. She was entitled to be compensated for the loss of those chances and for the fact that she had had to face death in the knowledge that her life might have been saved.  … It appeared likely that the plaintiff would not live for more than a few days and this amount included no allowance for the future [121-123]. $120,000 awarded for general damages and $14,700 interest on this.


In O’Gorman v Sydney South West Area Health Service 29/10/08 [2008] NSWSC 1127 the D failed to act appropriately on a suspicious breast screen and P lost the chance of early intervention which may have saved her life. “[T]he delay in diagnosis increased the risk of metastasisation by 10%. This was not a case where metastasisation was likely in any event and the plaintiff had merely lost the chance of a better outcome. The events which occurred, i.e. the development of tumours in the plaintiff’s lungs and brain, occurred within the very area of risk which had been increased by the delay in diagnosis”@150. P would have had to endure many of the treatments she did whether D was negligent or not. Hoeben J had “regard to the series of emotional shocks and psychological set backs which the [P] commenced to suffer from 13 May 2008 when she first learned that she had multiple tumours in her lungs … [and] to the sadness and loss … the [P] … [experienced] … [and] the increasing disability … as a result of the progression of the disease, and the drastic treatments … in order to control it. … [He also had] regard to the frustration … the [P] feels because of her dependence on others and her complete inability to do things now which used to be well within her capacity … [and] the strains which her illness has placed on her relationship with her partner … [P] is afraid of what is to come. The effects of her condition will gradually increase and she will need to be given large doses of painkillers with an ever-increasing reduction in her quality of life. The [P] realises and is trying to come to terms with the fact that there is no hope of a cure and that she must live her life as best as she can between now and the end of December when medical opinion assesses that she will die. …  As the disease follows its inevitable course, the [P’s] level of pain will increase despite the benefit of painkillers. Her final weeks will involve considerable pain and suffering. … Despite these considerations … I place the [P] in a different category to those persons who suffer recalcitrant pain and suffering over many years, such as paraplegics, quadriplegics, burn victims and those others, who are correctly classified as being very serious cases. The [P] does not satisfy the requirement of a most extreme case. Her suffering though intense will mercifully be of comparatively short duration. “@157-161. P assessed at 55% of a most extreme case and therefore allowed $247,500 for NEL.



See NSW case of Sullivan v Micallef 16/8/94 [1994] Aust Torts Rep 61,787 (NSW COA by majority) where P’s cancer should have been detected and removed in Oct/Nov 1988 apart from medical negligence. An operation at this time probably would have removed the cancer. P operated on in March 1989, but cancer not removed. P died June 1994. P’s suffering was extreme for 6 years. General damages of $185,000 including past component of $120,000 awarded.



See O’Reilly v Western Sussex NHS Trust (No.6) 19/12/14 [2014] NSWSC 1824 where Garling J, in a UK Fatal Accidents Act claim, determined the deceased died two years earlier than he otherwise would have from colorectal cancer due to medical negligence. UK law applied. Widow’s (P) nervous shock claim based on witnessing husband’s declining health (including his collapsing at home) statute barred due to time limitations. Discussion of nervous shock claims by secondary victims. Claim would have failed even if brought in time. P would have been awarded general damages of $143,750 for PTSD and major depression, among other heads, if she had succeeded.


Myeloma, Multiple (Plasmacytoma)

In Karam v Palmone Shoes Pty Ltd 18/1/10 [2010] VSC 3 P was exposed at work to benzene on a time weighted average in the amount of 0.4 part per million. Forrest J found “on the evidence that it is at least highly possible, if not probable, that occupational exposure to benzene in significant levels increases the risk of a person developing multiple myeloma and by extension, plasmacytoma”@111.  However, the P’s exposure to benzene in his breathing space was not sufficient for causation to be established.



See Connolly v Burton 18/12/07 [2007] NSWSC 1484 where McClellan CJ made an assessment in relation to a stunt performer suffering severe injuries to his neck and left side, psychological issues and pain. The stunt performer was on his way to a successful career as a stunt man, but lost his prospects of such a career. Supervening pancreatic cancer, however severely limited his life expectancy.



See Finch v Rogers NSW S/C decision of Kirby J 13/2/04 [2004] NSWSC 39 where 29 y.o. awarded $269,150 for NEL.