Australia: Personal Injury Law: In failing to make a timely diagnosis, does a General Practitioner breach their duty to their patient?

This article considers the Queensland Court of Appeal decision of Mules v Ferguson [2015] QCA 5


Ms Nancy Leanne Mules ("the Appellant") consulted her General Practitioner Dr Kaylene Joy Ferguson ("the Respondent"), on four separate occasions in September 2008, on the 12th, 18th, 19th and 25th ("the consultations"). On her last visit to the Respondent, the Appellant was referred to Hospital and was admitted that day. The following day, the Appellant was diagnosed with cryptococcal meningitis, from which she sustained devastating personal injuries including the loss of her sight and hearing ("the injuries"). Between the first and the last examination, the Appellant had a CT performed evidencing cervical spondylosis, attended physiotherapy and chiropractic sessions and was taken to hospital by an ambulance and discharged.

The Appellant brought a claim in negligence against the Respondent, claiming that the Respondent:

  • did not undertake a proper examination; or
  • make proper enquiries as to the appellant's reported symptoms so as to exclude cryptococcal meningitis.

The Appellant contended that had the Respondent acted competently, she would have referred the Appellant for further tests and treatment. Had this referral been made, the Appellant contended that a diagnosis would have been made and that her condition would have been treated before the injuries could have occurred.

At Trial

The Trial Judge held that the Respondent breached her duty to the Appellant by failing to act with reasonable care and skill in not examining the Appellant's neck and making further enquiries as to her symptoms.

However, the trial judge found that based on the evidence provided by two experts, that the defence found in section 22 of the Civil Liability Act 2003 (Qld) ("s 22 Defence") applied in the circumstances. This provision provides a defence to a medical practitioners' breach of duty if it can be established that the practitioner acted in a way widely accepted by peer professional opinion and by a significant number of professionals in that field.

Despite finding that the s 22 Defence did apply in the circumstances, the Trial Judge considered the issue of causation before concluding that the Appellant failed on this point. His Honour reasoned that even if the relevant physical examination had been performed and further enquiries made, the Respondent would not have treated the Appellant any differently.

As the trial judge was required to do, damages were assessed at over $6.7 million.

On Appeal

The matter came before McMurdo P and Applegarth and Boddice JJ in the Queensland Court of Appeal. The Appeal was allowed at 2:1 and judgment was entered for the Appellant for the amount of damages assessed at Trial.

Issues on Appeal:

  • the trial judge's findings in relation to the Appellant's symptoms at the time of the consultations;
  • whether the outcome in respect of the Plaintiff's injuries would have been different had the Respondent undertaken the appropriate examinations in the consultations;
  • whether the Respondent's breach caused the Plaintiff's injuries; and
  • the s 22 Defence.

Judgement of McMurdo P

McMurdo P agreed with Boddice J as to His Honour's reasons allowing the appeal. Her Honour added the following.


Her Honour held that while most of the symptoms the Appellant reported to the Respondent on the first three occasions were consistent with a diagnosis of cervical spondylosis, the symptom of facial flushing was not consistent with that diagnosis. Symptoms of headache, facial flushing and neck stiffness are symptoms suggestive of cryptococcal meningitis.

Her Honour held that the Trial Judge's observation that there was no evidence of the Appellant holding her neck stiffly or without movement at the consultation on the 18th was not supported by evidence. Her Honour held that the Trial Judge had erred in concluding that had the Respondent physically examined the Appellant's neck, including the performance of 'the chin on chest test' on either the 18th or the 19th, she would not have detected neck stiffness suggestive of meningeal irritation. Her Honour found that such an examination would have likely revealed inability on the Appellant's part to place her chin on her chest. Combined with the history of headaches, facial flushing, prolonged distressed and a general deterioration in condition, this would have prompted the Respondent (had she acted reasonably) to refer the Appellant to a specialist, in order to exclude cryptococcal meningitis.

Considering that the Appellant was eager to alleviate her prolonged distress and had been attending various medical and health practitioners since 5 September, McMurdo P held that had the Appellant been referred to a specialist by the 22nd, she would likely have been diagnosed and treated by 23rd. This would have likely prevented the injuries. Consequently, a causal link was found between the Respondent's breach and the Appellant's injuries.

Section 22 Defence

The issue of the Section 22 Defence was not considered by McMurdo P.

Judgment of Boddice J


His Honour found that the Trial Judge's decision was largely based on what symptoms were reported by Appellant to the Respondent in the consultations, and the symptoms the Respondent should have detected between the 12th and the 19th. Whether or not the Respondent exercised reasonable care came down to whether or not she knew or should have known about the symptoms suggestive of cryptococcal meningitis at the time of the aforementioned consultations.

His Honour considered the evidence before him and held that the Trial Judge was incorrect in concluding that no evidence had been provided to the effect that there was no observable neck stiffness or lack of movement prior to the 25th. This was based on the Respondent's own evidence and the evidence of the Appellant's treating physiotherapist. Considering this, and that the Appellant had cryptococcal meningitis at the time of the examinations, Boddice J concluded that had the Respondent conducted a physical examination of the Appellant with reasonable care and skill, including performing the 'chin to chest' test, and undertaken further enquiries as to the Appellant's symptoms, it is likely that the Respondent would have concluded that the Appellant's symptoms were suggestive of cryptococcal meningitis and would have had cause to refer the patient to a specialist.

Section 22 Defence

Boddice J held that the s 22 Defence did not apply on the facts. The expert opinions relied upon by the Trial Judge were not based on the Appellant's established symptoms.

His Honour also found that the Trial Judge was correct in concluding that s 22(5) did not apply in the circumstances. Section 22(5) applies in cases where the breach otherwise arising flows from a failure to properly provide sufficient information to allow a patient to make an informed decision about risk of harm. This was not applicable in the circumstances.

Judgement of Applegarth J (Dissenting)


Applegarth J held that the Trial Judge was correct in concluding that in exercising reasonable care and skill the Respondent should have physically examined the Appellant's neck on the 18th and inquired about the Appellant's symptoms of headache and facial flushing. However, His Honour held that even if the Respondent had performed the physical examination and made further inquiries, this would not have changed the outcome. This was because: a physical examination would not have resulted in the detection of neck stiffness suggestive of cryptococcal meningitis; the Appellant's headaches were intermittent and not persisting without break as is usual in cryptococcal meningitis; and the Appellant did not report other symptoms of cryptococcal meningitis such as nausea, vomiting or light hypersensitivity. The reported symptoms were not inconsistent with the Appellant's diagnosed cervical spondylosis. As such, the Appellant had failed on the element of causation.

Section 22 Defence

Applegarth J agreed with Boddice J that the Respondent had not discharged her onus in establishing a s 22 Defence through the evidence of two Specialists, or the evidence as a whole. His Honour added that he agreed with Boddice J and the Trial Judge that, had the s 22 Defence been established, then s 22(5) would not have operated to exclude it. This was not a case in which liability arising from a breach arose in connection with the giving of (or the failure to give) a warning, advice or other information.
Section 22 Defence


This case emphasises the high level of standard of care to which medical practitioners are held in respect to their duty to exercise care and skill to their patients. All three Judges in this matter held that the Respondent had breached her duty to the Appellant by not physically examining her and further enquiring as to her symptoms.

This case suggests that when examining and diagnosing patients, General Practitioners should assume the worst diagnosis based on the patient's presented symptoms, and then work through a process of elimination from the most severe to the least severe diagnosis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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