Haigh v Ng[2007] QDC 86

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff has sued to recover damages for personal injuries and consequential loss which she says was occasioned by the negligence and breach of the duty by the defendant. The defendant was a general medical practitioner carrying on practice at the Market Square Medical Centre at Sunnybank at the material time. On the 31^st May 1999, the plaintiff had attended upon the defendant for consultation in respect of a condition relating to her face.

The pleadings

2. [2]
   The statement of claim filed 31^st May 2002 sets out the particulars of negligence and/or breach of duty relied upon by the plaintiff in support of her claim (paragraph 5). During the course of the trial, the plaintiff also relied upon the further particulars of negligence and/or breach of duty set out in the reply filed 18^th May 2004, (in particular paragraph 4(c)). The defendant had initially filed a defence on the 30^th April 2004. An amended defence however was subsequently filed on the 23^rd January 2007 after it had been settled by counsel. That document was subsequently relied upon at trial.

3. [3]
   During the course of the hearing, counsel for both parties raised certain arguments and concerns related to those pleadings regarding their ‘deficiencies’, however it must be said that there was evidence presented at trial by both parties which, if accepted, is capable of supporting their respective cases and as such, a consideration of that evidence in conjunction with the relevant pleadings is therefore necessary: White v Calstores P/L [2006] QCA 535.

The Issues

4. [4]
   The issues revealed by the pleadings may be summarised as follows:

1. Did the plaintiff suffer personal injury and consequential loss and damage as a result of the defendant’s negligence and/or breach of duty? (as particularised at para 5 of the claim and para 4(c) of the reply)

2. And if so, to what degree?

5. [5]
   Liability was put in issue between the parties.

6. [6]
   The plaintiff says that by reason of an alleged failure by the defendant to give her proper medical treatment, advice, guidance and/or adequate warning in respect of the use of steroidal creams on her face, she has suffered injury and consequential loss. The defendant, on the other hand, denies these assertions.

7. [7]
   It is immediately apparent that a crucial issue to be determined in respect of this matter relates to the nature and content of any conversation which took place between the plaintiff and the defendant during the consultation of the 31^st May 1999, the subject of the doctor’s notes (ex 7).

8. [8]
   Accordingly, as in any case such as this, an assessment is therefore required regarding the credibility of the parties generally and in respect of both parties’ recollections and the reliability of any such recollection as it relates to the consultation which took place on the 31^st May 1999.

Liability -  the plaintiff’s account.

9. [9]
   The plaintiff gave evidence that prior to seeing the defendant on the 31^st May 1999, she had noticed blemishes appearing around the corners of her mouth and near the lower part of her chin around late 1998/early 1999. She was at that time pregnant with her 3^rd child. That child was subsequently born on 22^nd March 1999. The plaintiff gave evidence that she had used Betnovate cream on her face with some success on those blemishes. That particular cream had previously been prescribed to her to treat the red scaly rashes which had developed on her hands in the past as a result of the hygiene practices associated with her employment as a Physiotherapist. She said that she had used the Betnovate cream on her face sparingly for several months before she stopped using it. The plaintiff gave evidence that she had done that because she had some knowledge of steroid creams. That is, she knew that continuing to apply that cream on her face was not a very good idea so she stopped applying it. (T13 L50). She said that she had then tried some natural remedies on her face instead, namely paw paw cream and zinc cream. She had also adopted other remedies as well, such as cold packs and antihistamine medication, unsuccessfully.

10. [10]
    As the blemish type rash continued to worsen, she gave evidence that she considered that a referral to a specialist was the appropriate course and organised herself an appointment with Dr Lee, Dermatologist.

11. [11]
    The plaintiff gave evidence that on the 31^st May 1999 she had attended upon the defendant primarily for the purpose of obtained a written referral to Dr Lee, as she knew that she would not be able to keep her self-arranged appointment with Dr Lee without one. She described that her principal symptom at presentation on the 31^st May 1999 was a red, blistered, swollen and blemished face. During the course of the consultation, the plaintiff says that the defendant prescribed her treatment in the form of a steroidal cream called Diprosone. A 2 gram (sample) tube of that product was given to her at that time for immediate use on her face. The plaintiff says that in addition to that sample tube being given to her, the defendant also provided her with a prescription for that same cream which she later filled that day at the chemist. The plaintiff gave evidence that at no stage during the course of that consultation, did the defendant give her proper advice, guidance and/or adequate warning with respect to the use of that cream on her face. Indeed, the plaintiff gave evidence that she was left with the impression that she could keep on using the cream on her face until the ‘rash’ went away (T42 L12) and that there would be no need for her to see a specialist or even return to see the defendant again in respect of the condition on her face as it wasn’t necessary (T16 L30 – 40).

12. [12]
    The plaintiff gave evidence that she then commenced using the Diprosone cream on her face. She recalled using it sparingly for a couple of days, possibly three times a day. However, within a couple of days she returned back to the same chemist shop and spoke to a pharmacist in attendance in order to inquire whether she was having a reaction to the cream as it was ‘upsetting’ her face which by that time was hurting and quite red. She says that the pharmacist told her that he would call the medical practice. She says she saw the pharmacist go to the phone however she didn’t hear the conversation. The pharmacist then returned and proceeded to ‘swap’ the tube of Diprosone cream (which she had taken with her) for a weaker steroidal cream, namely a prescription medication called Elocon.

13. [13]
    She then commenced using that cream on her face, applying it sparingly every couple of days. She stated she noted improvement when she was using the Elocon cream in that the ‘rash’ would subside while she was using it but that it would start to return if she stopped applying the cream. She continued to use the Elocon cream until 15^th January 2000 at which time she went to see another general medical practitioner, Dr Webber. Dr Webber told her she should cease using the Elocon cream immediately. Dr Weber also prescribed her a milder form of hydrocortisone cream to use on her face at that time but that treatment was unsuccessful in that the rash soon returned.

14. [14]
    The plaintiff says that she then returned to the Market Square Medical Centre on the 27^th January 2000 as the condition on her face again began to worsen again. She spoke to the nurse at the front desk about getting in to see the defendant however she was told he was not available (the plaintiff understood he was not actually on the premises). She told the nurse that she had been using a cream that the defendant had given to her (Elocon) for a rash, but that rash was reoccurring and that’s why she had wanted to see the defendant. The nurse then went away for a short period and returned with a prescription for Elocon prescribed by Dr Hegarty. She did not however see Dr Hegarty personally at the time for a consultation.

15. [15]
    She gave evidence that she again commenced using the Elocon cream on her face with the same results as before, which was that when she was using the cream she would notice improvement and when she wasn’t, the rash would return. She eventually went to see another general medical practitioner, Dr Souris at the end of August 2000. She stopped using the Elocon cream at that time and another treatment plan was devised. However by the 11^th September 2000, her face had got quite bad (ex 10), so Dr Souris referred her to Dr Lee. She subsequently attended upon Dr Lee, Dermatologist on the 12^th September 2000 who advised her to stop using Elocon immediately. She was then treated successfully by Dr Lee with antibiotic medication. She described the redness on her face however persisting until at least 2005.

- the defendant’s account

16. [16]
    The defendant gave evidence that he had been in private practice as a general medical practitioner since 1974 at the Market Square Shopping Centre. He said that his recollection of the consultation of the 31^st May 1999 was unfortunately incomplete but that his recollection of that day was helped by the notes that he took at the time (ex 7). The defendant recalls that the plaintiff had presented on that day with an acute inflammation on her face near the nasal labia area (an area the size of the tip of her thumb). He recalls that she gave him a history that suggested that the rash had been there on and off for some time and that a couple of days prior to her presentation on the 31^st May 1999, there had been an acute flare up as a result of the plaintiff using zinc cream on her face. He also recalled that he thought she may have also said that she had used some sort of cortisone cream on her face and that it did get better with that use. He recalled looking at her face under magnification and finding an inflamed patch of skin. He formed the view that she had suffered an allergic reaction to the zinc cream. He recalls giving her a sample tube of Diprosone cream to use immediately but does not specifically recall whether he also wrote her out a script for that cream but said that judging by his examination and based on his provisional diagnosis, he would have thought a 2 gram tube would have been adequate. The defendant had no specific recollection regarding what advice or information he gave to the plaintiff regarding the use of that cream but said that it was his usual practice, when providing medication such as Diprosone to patients, that because it is a steroidal cream, that it should be used sparingly and that if after using it for three to five days, there is no improvement, then the patient is advised to stop using it. (T96 L10 – 20) He also gave evidence that it would also have been (as part of his usual practice) to also tell a patient to return if he or she had not achieved a desirable effect in the three or five days (T97 LL50). The defendant gave evidence that he could not specifically recall if the plaintiff had asked him for a referral to a specialist but said that he did not think that she would have required a referral in any event at that point. The defendant also gave evidence that after the consultation on the 31^st May 1999, he did not see the plaintiff again as a patient nor did he have any involvement in the management of her condition or any other illness or medical concern after that date.

17. [17]
    During cross examination, the defendant was asked whether he had any recollection of having received a telephone call from a pharmacist on or about the 2^nd or 3^rd June 1999 seeking his approval to ‘swap’ the Diprosone 15 gram tube for an Elocon tube, to which he replied ‘No, I have not’ (T101 L3). Indeed, the defendant did not accept the proposition put to him for comment, that it was a common occurrence that that type of event can happen in general practice. The defendant was quite adamant in his evidence that he considered that it was not and that he considered it would be most unprofessional of any pharmacist to ring him for that (that is, to change the direction of treatment for a patient in the manner that was proposed).

- resolution

18. [18]
    As quite properly observed by Counsel for the plaintiff, the outcome of this case primarily turns upon this court’s assessment of the competing evidence given by the plaintiff and defendant and in particular, regarding what each of them said occurred during the consultation of the 31^st May 1999. Counsel for the plaintiff submits that the plaintiff’s evidence should be accepted in preference to that of the defendant because the defendant was only able to give evidence regarding what his ‘usual practice’ would have been in respect of the treatment, advice, guidance and/or warnings related to a patient’s use of a steroidal cream, as opposed to any specific recollection with respect to the actual consultation which he had personally with the plaintiff on that day.

19. [19]
    I cannot accept that submission. Although the defendant had no specific recollection regarding the whole of the consultation, he did have some clear memory of that consultation which was assisted by the notes he took at the time. It also must be said that the consultation in question took place nearly 8 years before, in circumstances where the defendant was a general practitioner who had continued to see patients in his practice since that time. The notes which the defendant also took of that consultation at that time also not only confirm his evidence supporting the provisional diagnosis which he made but also confirm the treatment which he prescribed. Indeed, the plaintiff’s own evidence was that she had used zinc cream on her face as a remedy even before she had consulted with the defendant on the 31^st May 1999.

20. [20]
    Criticism was also made of the defendant’s clinical notes regarding their ‘deficiency’ with respect to the advice and/or warnings which the defendant says he would have given to the plaintiff (as a patient) regarding the steroidal cream and its’ use. A perusal of exhibits 7, 18 and 19 however confirm that it is not a common practice at all for doctors to record that type of information on a patient card. As observed by Dr Sinclair in his evidence, while it would undoubtedly be ‘good practice’ for all doctors to do so, he stated that it wasn’t uncommon at all that doctors in general don’t record that type of information in their notes. Indeed, Dr Webber also sought to rely on her notes at hearing in order to refresh her memory of the events surrounding her consultation with the plaintiff on the 15^th January 2000 as she too, had no specific recollection of that day and indeed, also relied on her ‘absolute standard practice’ with respect to the issue of any specialist referral letter given to a patient in general.

21. [21]
    I also had the opportunity to observe both the plaintiff and the defendant while giving their evidence. The defendant struck me as a witness, who although at times had some difficulty with the questions, (perhaps due to his comprehension of the English language, although it must be said my observation of him was that his grasp of the English language in general could fairly be described as good), gave his evidence in an honest and forthright manner. There was no suggestion of overstatement or reconstruction. He was prepared to make concessions as it related to his (lack of) memory surrounding the events of the 31^st May 1999 which in my view was consistent with his veracity for the truth. I also found him to be a honest witness, and in relation to reliability, I prefer his evidence to that of the plaintiff where there was conflict.

22. [22]
    I also had the opportunity to observe the plaintiff while she gave her evidence and during that time, I was less impressed with her as a witness. Overall, I did not find her to be an entirely reliable witness. While she gave her evidence in a forthright and determined manner, I was unable to accept her evidence. In arriving at that conclusion, I have taken into account my general assessment of her as a witness. In addition, I have also taken into account each of the following matters:

• The plaintiff emphasised in her evidence that the primary reason for her attendance upon the defendant on the 31st May 1999 was in order to obtain a specialist referral letter for Dr Lee. (T15 L10, T16 L28 – L40, T37 - L45)). She gave evidence to the effect however, that she had only accepted the defendant’s advice regarding the treatment plan proposed by him, during the course of the consultation on that day, because she respected his opinion as a medical practitioner.(T38 – end, T39 L1 – L20). That evidence however does not sit entirely well with paragraph 2 of the statement of claim which says that on the 31st May 1999, the plaintiff attended upon the defendant for the purposes of medical advice and treatment, including the obtaining of a specialist referral to Dr Lee.
• The plaintiff also denied that she had ever previously been prescribed cortisone cream for her facial blemishes (T36 L50 – 60) yet in paragraph 3(b) of the statement of claim, it is alleged that it was the plaintiff who had informed the defendant at the consultation of the 31st May 1999, that she had previously (in about October 1998) been prescribed cortisone cream for her facial blemishes.
• The plaintiff was also quick to ‘blame’ others in respect of any history which had been recorded by the respective medical witnesses where it was in conflict with her own evidence. For example, Dr Sinclair confirmed during his evidence that the history provided to him (set out under the heading Material Facts) was obtained by him directly from the plaintiff. That included her telling him that after she starting using Elocon cream, she was able to reduce it to once or twice per week with occasional use of the Betnovate cream as well. (page 2, 2nd paragraph). The plaintiff, on the other hand, gave evidence that Dr Sinclair must have been mistaken regarding that history (T49 L30) and denied that she had used the Betnovate cream after she had commenced using Elocon. I have no reason to reject the evidence of Dr Sinclair however, who I found to be a helpful and impartial medical witness.
• The plaintiff also gave evidence that Dr Webber did not provide to her a referral to a specialist (Dr Lee) on the day she consulted with her on the 15th January 2000 (due to the computer being down). She also gave evidence that she did not understand that Dr Webber was going to write out a referral for the specialist for her (T55 L 50) as Dr Webber had only mentioned her that possibly seeing a specialist would be the next step to take (T55 L43). I cannot accept the plaintiff’s evidence on this point. Dr Webber gave evidence that during that consultation, she advised the plaintiff that it would be better for her to seek a specialist’s opinion and asked her to cease using the Elocon cream and use the weaker steroid cream she had prescribed as a temporary gap measure until she was able to see the specialist, Dr Lee. (T109 L40 – 50). The doctor gave evidence that she did prepare a letter of referral to Dr Lee for the plaintiff which she said would have been made available to the plaintiff subsequently (in light of the computer being down at the time of that consultation). Dr Webber also gave evidence that it was her absolute standard practice that a patient in those circumstances would have been notified by her receptionist that the referral letter was at reception ready for collection or if that was not suitable, then the letter would have been sent to her. I have no reason to reject the account given by Dr Webber on that issue. Like Dr Sinclair, I found her to be a helpful and impartial medical witness.
• The plaintiff also gave evidence that she had personally attended at the Market Square medical practice in order to see the defendant on the 27th January 2000 who wasn’t available, and as a result, the nurse at reception who she spoke to, left reception for a short time but returned and gave her a script for Elocon which had been written out by another doctor. That evidence however does not sit well with the history recorded by Dr Sinclair in his report (page 2 paragraph 3) which indicates that the plaintiff, after having seen Dr Webber on the 15th January, had then rung the defendant’s practice, and a different doctor was apparently asked about the problem over the phone and it was under those circumstances, that the script for Elocon cream was prescribed.
• The history recorded by Dr Lee in his report dated 13th September paragraph 1 is also in conflict with the evidence which the plaintiff gave at hearing. Dr Lee recorded that the plaintiff had been given Elocon initially for a few acne form papules on the face during her recent pregnancy (her last child being born in March 1999). The plaintiff, on the other hand, denied having ever used Elocon on her face prior to being given it by the pharmacist on or about the 2nd or 3rd June 1999. The plaintiff’s denial however is in direct conflict with the history recorded by Dr Lee and with the pleadings (para 3(b) of the Claim). Indeed, the plaintiff had no clear recollection of ever having used Elocon even on her legs (for a rash) in October 1997. Again, I have no reason to reject the evidence of Dr Lee and the history which he has included in his report of the 13th September 2000 and as such I cannot accept the plaintiff’s evidence on this issue.
• The plaintiff also sought to rely upon, as a ground of negligence and/or breach of duty (para 4(c) of the reply), that it was the defendant who had prescribed Elocon cream to the plaintiff after the pharmacist had apparently rung him sometime on the 2nd or 3rd June 1999. That assertion however cannot be maintained as there is insufficient evidence available to support such a conclusion, or support even a reasonable inference, that it was the defendant who had advised the pharmacist to ‘swap’ the Diprosone for the Elocon cream and give it to the plaintiff on that date. Not only did the plaintiff not hear any of the conversation which the pharmacist had on that day or with whom, there was simply no independent evidence presented to the court which may have been capable of supporting the plaintiff’s evidence on this point. For example, the pharmacist in question was not called to give evidence, and no business records placed before the court for consideration on this issue. Indeed, the evidence which was available on this issue was less than satisfactory. The only piece of evidence that may be said of being capable of supporting the plaintiff’s version (if accepted) on this issue was a Mastercard print out (ex 6) which confirmed that an amount of $19.90 was spent on the 31st May 1999. The plaintiff gave evidence that that amount included the cost of the Diprosone script which she had filled that date. However, that evidence in itself does not, in my view, lead to a conclusion or even a reasonable inference, that it was therefore the defendant who had spoken to the pharmacist on the 2nd or 3rd June 1999 and authorised the ‘swap’. I also have no reason to reject the defendant’s evidence when he said that he did not have any further management of the plaintiff’s condition or any involvement in that regard in respect to it, after his consultation with her on the 31st May 1999.
• There were other difficulties with the plaintiff’s evidence. The plaintiff gave evidence regarding the reliance which she had placed on what she says the defendant had said to her during the consultation of the 31st May 1999. In particular, she gave evidence that it was her understanding that she could simply keep on using the (Diprosone) cream until the ‘rash’ went away and that no further medical treatment would be necessary (T 44 L30 – 50). It is difficult to accept the plaintiff’s evidence on this issue particularly in view of her own evidence that she was well aware that steroidal creams had to be used with care (T13 50; T26 L5; T42 L20; T50 L5 – 15), a belief she had held even before she had consulted with the defendant.
• The plaintiff also stated that the reason that she had wanted an appropriate specialist referral in the first place from the defendant when she saw him on the 31st May 1999, was because she considered a specialist to be more equipped to deal with skin problems than a general practitioner. Notwithstanding that belief, the plaintiff gave evidence that she continued to use a steroidal cream (Elocon) on her face which had been prescribed to her by Dr Hegarty on the 27th January 2000, on her face until August 2000, even though Dr Webber had told her in clear terms on the 15th January 2000 not to use that cream on her face anymore and even though Dr Webber had told her that she should use the hydrocortisone cream which she had prescribed the plaintiff as a stop gap between their consultation and the plaintiff getting in to see Dr Lee. The plaintiff also gave evidence that the reason she had gone to see Dr Webber and subsequently Dr Ng (had he been available) on the 15th and 27th January 2000 respectively, was because she knew she needed to seek further medical advice (and even a referral to a skin specialist) regarding the condition on her face. (T23 L25 – end). Accordingly, I am unable to accept the plaintiff’s evidence regarding what she says was the “message she was given and the one she left with” after her consultation with the defendant on the 31st May 1999, which was that she believed she could simply keep on using a steroidal cream on her face until the ‘rash’ went away.

The medical evidence

23. [23]
    Four doctors were called to give evidence. Drs Sinclair and Lee were called on behalf of the plaintiff and Drs Webber and Turnbull were called on behalf of the defendant.

24. [24]
    A summary of the evidence given by each of those respective witnesses which I have taken into account is set out as follows.

Dr Sinclair

25. [25]
    Dr Sinclair provided a report (ex 4) for the court’s consideration. During cross examination, Dr Sinclair agreed that his report had proceeded on the assumption that it had been the defendant who had been responsible for the prescription of Elocon for the plaintiff’s use. (T65 L10). Dr Sinclair also agreed under cross examination that if the version of events given by the defendant regarding the consultation of the 31^st May 1999 was true, then his diagnosis, treatment plan and advice provided to the plaintiff regarding the Diprosone cream was more than reasonable in all the circumstances. He also agreed however that if the plaintiff’s version of events regarding that consultation was true, then it would not be reasonable if indeed the defendant had failed to tell the plaintiff how often she should use it (the steroidal cream) and for how long she should use it (T72 L40). However, he did not agree that a failure to give a referral or make a follow up appointment was unreasonable even if he accepted that the version of events given by the plaintiff was the correct one. Dr Sinclair however has also noted (ex 15 at number 23) that he finds it hard to believe that the defendant didn’t say words to the effect that ‘the treatment should settle within x weeks and if it doesn’t fix it come back and see me’.

26. [26]
    He also confirmed that the history which he had recorded in his report under Material Facts set out at pages 1 and 2 were facts which had been specifically provided to him by the plaintiff and that the documentation (listed 1 to 9) on pages 2 and 3 was not used for that purpose but rather, subsequently used by him in order that he be able to prepare his report.

Dr Lee

27. [27]
    Dr Lee provided two reports (ex 2 and 3) for the court’s consideration. Dr Lee confirmed during cross examination that on his last consultation with the plaintiff on the 6^th August 2002, he was satisfied that her presentation on that visit was not related to the effects from the use of Elocon cream.

28. [28]
    Dr Lee also confirmed that the reference in his report of the 13^th September 2000 with respect to the plaintiff have been given Elocon initially for a few acne form papules on the face during her recent pregnancy was information which he had been given by the plaintiff.

29. [29]
    Dr Lee also agree with the proposition put to him during cross examination that Elocon cream may be used on the face provided that it is used in small quantities over a short period of time. He also agreed that the plaintiff had not mentioned Diprosone cream at all to him as the cortisone cream that she was having a reaction too.

Dr Webber

30. [30]
    Dr Webber gave evidence that she had seen the plaintiff at her practice at the Garden City Medical Centre on the 15^th January 2000 (ex 19). She confirmed that she had advised the plaintiff to cease using the Elocon cream and use the hydrocortisone cream which she had prescribed as a temporary gap measure between then and when she was able to see the specialist, Dr Lee.

31. [31]
    She confirmed that she had written out a letter for Dr Lee (ex 20) but that if the computer was not working on that day (as noted in ex 19) then if she had been unable to give that referral to the plaintiff on the day, then her practice would be that the letter would be prepared and placed to the front desk so that the patient could come and get it or it would be actually posted to the patient. (T111 L50). Dr Webber agreed under cross examination however that she didn’t know whether she actually gave a signed letter of referral to the plaintiff on the 15^th January 2000 due to the computer being down (and a lack of memory on her part in that regard) but stated that she would have certainly been made available to her once it was prepared subsequently in line with her ‘absolute standard practice’.

Dr Turnbull

32. [32]
    Dr Turnbull provided a report for the court’s consideration. (ex 17). He gave evidence that if the version of events given by the defendant regarding the consultation of the 31^st May 1999 was correct (as set out in the filed defence), then he considered that the defendant had acted reasonably. He agreed under cross examination however that if the version of events given by the plaintiff regarding the consultation of the 31^st of May 1999 was correct (as set out in the filed statement of claim), then he would consider that the defendant had fallen below that of a standard expected of a reasonably competent general practitioner, particularly as it related to any lack of clear advice regarding the cream and its’ use. However, in re-examination he also was of the opinion that even if a script for Diprosone was provided to the plaintiff in addition to the sample tube, that as long as the defendant had informed her to only use it sparingly over two to three days and to stop it if it hadn’t resolved by then, he was comfortable with that (T120 L45).

33. [33]
    I found each of the medical witnesses called during the trial to be helpful and reliable. Having determined however that I am unable to accept the plaintiff’s evidence, it follows that the evidence by the respective medical witnesses that I have taken into account does little to assist the plaintiff in proving her case.

Conclusion on Liability

34. [34]
    Accordingly, as I am unable to accept the plaintiff’s evidence and having taken into account the whole of the evidence available for consideration, I am unable to conclude that the plaintiff has proved, on the balance of probabilities, that she has suffered personal injuries and consequential loss as a result of the negligence and/or breach of duty of the defendant as alleged. It follows then that the plaintiff’s claim must be dismissed.

35. [35]
    In the event that a different view may be taken regarding the conclusion which has been reached on liability, I shall briefly deal with the question of quantum of damages on a precautionary basis.

Quantum

36. [36]
    Counsel for the plaintiff has helpfully provided to this court, two Schedules of Damages. Which schedule is relevant is dependent upon the length of the time which the plaintiff is said to have suffered as a result of her personal injuries and any associated consequential loss.

37. [37]
    The plaintiff gave evidence that her condition did not resolve itself until at least 2005 as she had noticed persistent redness until at least that time. That evidence however is not supported by the medical evidence of Dr Lee who confirmed that when he saw he on the 6^th August 2002, the skin changes that were present on the plaintiff’s face was not consistent with damage from the Elocon cream. (ex 3). The plaintiff also gave evidence that during the period 31^st May 1999 up until she was treated successfully by Dr Lee in September 2000, the condition on her face was, aside from the period just prior to her seeing Dr Lee (as exhibited in ex 10), relatively mild insofar as the ‘rash’ on her face would clear with the application of the cream but would subsequently re-emerge when she stopped using it. That description regarding the condition’s progress was consistently much the same during the relevant period. The photograph taken in January 2000 (ex 8), on the first day of school for one of the plaintiff’s children, shows the level of the condition at that point which is at a time when the plaintiff had stopped using the Elocon (on Dr Webber’s advice) and shortly after she had commenced using it again having received a script for the cream from Dr Hegarty on the 27^th January 2000. The plaintiff gave evidence that the condition generally was not bothering her in a painful sense (T22 L1) and only became painful after she stopped using Elocon in August 2000 altogether. The photograph (ex 10) supported the evidence which the plaintiff gave regarding the level of discomfort and embarrassment which she felt (T28 L1 – 10). The plaintiff also gave evidence that she used makeup to cover her ‘rash’ when it would re-emerge between the applications of Elocon.

38. [38]
    She also gave evidence that she would avoid going out in the sun such as playing with her children, hanging out the washing or avoiding the pool as it would irritate her condition. She gave evidence that her husband would assist her in the performance of tasks involving any activity out in the sun. In particular, she said that her husband assisted her for about 4 months when her face was really bad and that outside of that period, she generally did the chores herself but missed out during the whole of that period by being unable to play with her children outside. (T30 1–end). She also gave evidence that during the period her face was particularly bad (ex 10), she also did not work for approximately 4 weeks. She gave evidence that at the particular time, she was working part time as a physiotherapist and was working 12 to 15 hours per week at about $30 per hour.

39. [39]
    That evidence, taken as a whole, would support a conclusion that the plaintiff did suffer personal injury and consequential loss at least during the period 31^st May 1999 up until at least late 2000 (with the worse of her symptoms dissipating within that time frame: ex 4 page 2 2^nd last paragraph), with some residual redness persisting up until at time sometime before the 6^th August 2002, (ex 4 page 6 3^rd last paragraph) when it was determined by Dr Lee that any skin changes noted on the plaintiff’s face at that time were not consistent with any damage suffered as a result of the application of Elocon cream.

40. [40]
    Accordingly, on balance it would seem then that the amended Schedule of Damages which has been provided by the plaintiff is the more appropriate schedule with respect to any relevant time frame and the assessment of damages (36 months). Accordingly, the following is a summary of the amounts which I would have awarded the plaintiff had she been successful in her claim:

1.Special Damages

(claim for cosmetics and skin preparations 36 months)............................................................................$4494.95

2.Interest on special damages @ 6% for 7.75 yrs.............................................................................................$2090.18

3.General Damages..............................................................................................................................................$5000.00

4.Interest on General Damages @ 2% for 7.75 yrs..........................................................................................$775.00

5.Loss of Income 4 wks @ $450 pw..................................................................................................................$1800.00

6.Interest on Loss of Income @ 6% for 7.75 yrs...................................................................................................$837.00

7.Gratuitous Assistance 16 wks @ 4hrs/wk @ $15 ph......................................................................................$960.00

8.Interest on Gratuitous Assistance @ 6% for 7.75 yrs.....................................................................................$446.40

TOTAL....................................................................................................................................................................$16,403.53

41. [41]
    In respect of General Damages, that amount reflects not only the plaintiff’s pain and suffering during the relevant period but also includes the loss of enjoyment which the plaintiff says she had lost as a result of her condition namely her inability to enjoy the swimming pool, to play with her children outside and enjoy generally outdoor activities.

42. [42]
    In respect of Gratuitous Assistance, that amount refers the assistance which her husband gave her during the 4 month period when the plaintiff says her condition was particularly bad and she required the assistance of her husband to do some of the domestic chores for her.

43. [43]
    In the circumstances, however, there will be judgment for the defendant with costs.