Filmalter v Swenson[2025] QSC 32

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff, Mrs Filmalter, sues the defendant, Dr Margaret Swenson, for negligence, breach of contract and breach of ss 60 and 61 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth)). Mrs Filmalter alleges Dr Swenson inappropriately advised her and treated her with the prescription of the antibiotic Norfloxacin on 8 February 2014. Mrs Filmalter alleges the Norfloxacin has caused an allergic reaction which led to extreme photosensitivity which has persisted for over a decade. Mrs Filmalter further alleges that her allergic reaction to Norfloxacin was a cause or contributing factor to the development of cerebral vasculitis, leading to the stroke that she suffered in 2017, causing her to be further disabled.
2. [2]
   The defendant, Dr Swenson's case is that she was not negligent in her treatment and advice of Mrs Filmalter, has not breached ss 60 and 61 of the Australian Consumer Law, and that Mrs Filmalter has not suffered from an allergic reaction nor been rendered photosensitive. Dr Swenson also argues that the stroke that Mrs Filmalter suffered in 2017 was not related to the ingestion of two tablets of Norfloxacin on 8 February 2014.
3. [3]
   Exhibit 1, the so-called Trial Bundle, consists of 3,885 pages of information, some part of which is of great assistance as it provides reliable information on events which occurred many years ago. References to page numbers in these reasons are references to the page numbers in Exhibit 1. The credibility of Mrs Filmalter, Mr Filmalter and Dr Swenson is in issue.

Mrs Filmalter

4. [4]
   Mrs Filmalter was born on 18 October 1973, in Durban, South Africa. Mrs Filmalter married Mr Neil Filmalter in 1996. Mr and Mrs Filmalter have three daughters: Crystal, currently aged 31; Harley, aged 25; and Aqua, aged 17.
5. [5]
   Mrs Filmalter accepts that when she was a child she would have been prescribed penicillin, although she cannot recall when that was. Mrs Filmalter recalled that when she was aged 21 years in or about 1994, she was suffering from something like sinusitis and was prescribed and took a penicillin-based antibiotic. Mrs Filmalter recalls that she thereafter developed large blisters on the softer skin areas of her body, including her hands and elbow joints and under her feet. Mrs Filmalter said those blisters became larger then popped open. Mrs Filmalter recalls being treated by Dr Postma and Dr Meltzer at the Bluff Medical Centre in Durban, South Africa.
6. [6]
   Mrs Filmalter's evidence was that Dr Meltzer diagnosed the blisters as being an allergic reaction to the penicillin, and that Dr Meltzer advised Mrs Filmalter not to take penicillin-based antibiotics. Mrs Filmalter contended that Dr Meltzer told her that she was suffering from Stevens-Johnson syndrome. Mrs Filmalter says she had the blisters and the condition for about two to three weeks even though she only ingested one or two penicillin tablets. Mrs Filmalter's evidence is that once her blisters healed, she had no further problems and thereafter did not take penicillin ever again. Despite Mrs Filmalter being familiar with the Bluff Medical Centre and being on good terms with Dr Meltzer, Dr Meltzer's records were not tendered.
7. [7]
   According to Mrs Filmalter, in August 2007 she was suffering from “tonsillitis or something like that” and so her general practitioner Dr Meltzer prescribed her an antibiotic.^[1] Until Mrs Filmalter received the records of the Entabeni Hospital on or about 24 March 2014, Mrs Filmalter did not know the name of the drug Avelon Dr Meltzer prescribed her. It was a fluoroquinolone which is in a different class of antibiotic from penicillin.
8. [8]
   According to Mrs Filmalter, after she was prescribed the Avelon, she took one tablet before she went to work in the morning. While she was driving to work, she began to feel a severe burning on her back. She felt very flushed and hot and she was itchy and uncomfortable and also suffered from “quite a bit of shortness of breath”.^[2]
9. [9]
   Mrs Filmalter then called her husband, Mr Neil Filmalter, on her car phone and had him meet her on the off-ramp and drive her to the Entabeni Hospital. Mrs Filmalter then described dramatic scenes at the Entabeni Hospital. Mrs Filmalter described that she was placed on “a whole load of machines”. A drip was inserted, she was panicked and felt a lot of dread. Mrs Filmalter alleged that whilst she was in the hospital she was sitting down, that her body swelled and the buttons on her shirt all popped open. Mrs Filmalter remembers multiple doctors coming towards her with syringes “full of stuff”, and nurses came and checked her and that “Multiple doctors, they were stabbing needles into my stomach with syringe stuff”.^[3]
10. [10]
    Mrs Filmalter says that after seeing all the doctors coming at her with all the needles, she did not have much of a recollection. She remembered waking up with the nurse sitting beside her in the specialised intensive care unit at the hospital. Mrs Filmalter explained that in the specialised intensive care unit there was a nurse who sits beside each patient 24 hours a day. Mrs Filmalter says she remained in that specialised intensive care unit for three days.
11. [11]
    Mrs Filmalter said that when she was discharged, her treating doctor, Dr Khan, told her “stay away from antibiotics”.^[4] According to Mrs Filmalter, she did not ever take antibiotics again. Mrs Filmalter said that every doctor she had seen since had told her to stay away from antibiotics.
12. [12]
    Mrs Filmalter described her reaction as being very severe and recalled her blood pressure went to nearly “250 over something in the region of 140 or 150”.^[5] Mrs Filmalter's recollection is that she had suffered from a severe anaphylactic reaction and required specialised intensive care unit treatment for some three days.
13. [13]
    The records of the Entabeni Hospital, Exhibit 4 and also pages 1343 to 1349, confirm a small part of Mrs Filmalter's evidence and contradict Mrs Filmalter's evidence in many other respects. I accept that the notes are accurate. The notes record that Mrs Filmalter attended at the Entabeni emergency unit at 8:26am on 28 August 2007, suffering from an allergic reaction from the ingestion of Avelon at 7:00am. An intravenous line was commenced. The notes record Mrs Filmalter complaining of an itch on her body with hot flushes on arrival. She is noted to be tearful. Mrs Filmalter was fully orientated with a Glasgow Coma score of 15 out of 15 and was described as anxious.
14. [14]
    The treatment provided was not via stabbing with needles in the stomach, but rather using the intravenous cannula inserted in Mrs Filmalter's left arm. Mrs Filmalter was administered with 200mg of the steroid Solu-Cortef at 8:33am, followed by 12.5mg of Phenergan at 8:35am, followed by a use of a Berotec nebuliser at 8:39am. At 8:45am, a further 12.5mg of Phenergan was administered and at 9am, 2.5mg of Clopomon.
15. [15]
    The nursing notes showed that by 8:40am the itching was subsiding, but Mrs Filmalter remained flushed. Five sets of observations were taken between 9am and 9:32am. At 9:03am, Mrs Filmalter's blood pressure was recorded at 243 over 102. That is, it was significantly elevated. As discussed below, this was explained by Dr Katelaris as an elevated blood pressure result caused by the infusion of Phenergan.
16. [16]
    The progress clinical records show that on the following day, 29 August 2007 at 11:00am, Mrs Filmalter was transferred to a ward. She was comfortable and asleep, relaxed and healthy. At 9:00am on 29 August 2007, Mrs Filmalter recorded a pain score of nil but was observed to have a fine rash. At some stage she was observed to be flushed and that a redness of her right arm had settled. Mrs Filmalter was discharged on 30 August 2007 at 10am, being admitted for a little over two days.
17. [17]
    On page 1344, the record of the internal transfer in the Entabeni Hospital and in a neat handwriting of a person unknown but perhaps not likely to be a doctor, records the diagnosis as anaphylactic reaction. The discharge record, however, on page 1349 provides the final diagnosis at 10:33am on 30 August 2007 as allergic reaction. As discussed below, Dr Katelaris, who has studied the record, is confident that the records do not show an anaphylactic reaction to drug ingestion. I accept that is a correct analysis. Indeed, it accords with the final diagnosis on discharge of allergic reaction.
18. [18]
    When Mrs Filmalter was admitted at 8:25am on 28 August 2007, she was admitted to the emergency ward under the care of Dr Dorfling. It is plain on the record that Dr Dorfling attended to the emergency.
19. [19]
    Some time after 9:32am, presumably a consultant, Dr Khan, examined Mrs Filmalter.  On page 3293, the report of Dr Khan to Dr Dorfling on 5 September 2007, curiously records that Mrs Filmalter:

“She presented with problems of an acute anaphylactic reaction. This was associated with the use of Avelon at 7am on the morning of the 28^th August. She developed acute facial flush 1 hour after ingesting the Avelon. She presented to hospital with more problems of breathing. She had extensive swelling of both her hands and feet and she had a preceding history of a flu-like illness for about four days duration and associated hoarse voice and rhinitis. The patient had just ingested Avelon earlier that morning prior to coming into the hospital. She previously used Avelon in the past but on this occasion developed an acute reaction… She is a known patient with penicillin, sulphur and niacin allergy.”

20. [20]
    Dr Khan then recorded on clinical examination at a time unknown and not recorded in any of the hospital notes that:

“She had puffy hands bilaterally and they were swollen. Her lips were not swollen. Her oral signs were easily visualised and mallompati 2. She had extensive facial flushing which apparently had decreased. Her blood pressure was 120/70 and this was stable…The assessment therefore was that of a patient with acute anaphylaxis reaction. Subsequent management was that she was given Phenergan intramuscularly. In addition she was started on IV Hydrocortisone and intermittent Ventolin nebs and IV fluids…She has been advised to stay away from antibiotics including penicillin and Avelon.”

21. [21]
    Dr Khan's report is curious. As stated above, in the Entabeni hospital records the final diagnosis as an allergic reaction and not an anaphylactic reaction. This has been confirmed by analysis of the records by both Professor Katelaris and Dr Davidson. As said above, I accept that analysis is correct. Therefore, I accept Dr Khan's analysis is not correct as the presenting problem was an allergic reaction, not acute anaphylaxis or an acute anaphylactic reaction.
22. [22]
    Dr Khan's clinical examination results of a pulse rate of 100 beats per minute and a blood pressure of 120/70 does not accord with any of the recordings in the Entabeni hospital record. Although I observe that on page 1348, which is said to be the patient record, presumably the ward record of page one of four, and the subsequent page 1349 being page four of four, that two pages of the record have been misplaced. I accept Dr Khan’s notes of examination may be in the missing two pages.
23. [23]
    It is plain, however, from Dr Dorfling's involvement that it preceded Dr Khan's involvement as Dr Dorfling dealt with the acute emergency situation. Dr Khan's note of subsequent management as Phenergan being given intramuscularly is at odds with the hospital records of the Phenergan being administered intravenously. I do, however, accept, as Dr Khan records, that his advice was to stay away from antibiotics, including penicillin and Avelon.
24. [24]
    The most important part of the record is on pages 1344 and 1345 where Mrs Filmalter’s allergies are ascribed to penicillin, sulphur and Nicene only. I accept Mrs Filmalter's evidence at T1-29 line 12 that she was scared by what occurred at the Entabeni Hospital in terms of the allergic reaction and what had occurred. I do not accept Mrs Filmalter's evidence that she swelled so much that the buttons on her shirt popped off, as swelling is not noted in the Entabeni Hospital records at all and Dr Khan recorded swelling of Mrs Filmalter’s hands and feet.
25. [25]
    Further, I do not accept that she was stabbed in the stomach by several doctors, as the records recall that she was provided with a J-loop into her left arm and that the medications were infused through the cannula in the normal fashion. Further, I do not accept that she was in fact severely ill, as indicated by her high blood pressure results, but rather I accept that the elevated blood pressure was as a result of the consumption of the Phenergan.
26. [26]
    I do not accept Mrs Filmalter's evidence that she was in intensive care for three days, but rather she was in hospital for two days and 2 hours. I find that Mrs Filmalter was admitted to the emergency department for initial treatment on 28 August 2007 at 8:25 am, then transferred from emergency into the Specialised Intensive Care Unit at some time after 9:30 am. At 11:00 am on the following day, 29 August 2007, Mrs Filmalter was transferred to a ward in a stable and comfortable condition. I find Mrs Filmalter remained in the ward in a stable and comfortable position for a further period of almost a day before being discharged on 30 August 2007 at 10:33am. Mrs Filmalter’s recollection of what occurred at Entabeni Hospital is seriously flawed.
27. [27]
    Although the Bluff Medical Centre records were not provided, there is a short report dated 7 August 2022 from Dr Metzler at pages 3368 and 3369. Dr Metzler records that he was the primary treating general practitioner for Mrs Filmalter from 1997 up to 2008 when she emigrated. Dr Metzler says:

“Within this period, I treated her for the following adverse allergic reactions to specified antibiotics - PENICILLIN, SULPHUR MEDICATION, NIACIN and MOXIFLOXACIN.”

28. [28]
    Dr Metzler has used a curious sentence structure in indicating that until 2008 he treated Mrs Filmalter for reactions to specified antibiotics, i.e. Not all antibiotics. Dr Metzler has included niacin in his list of specified antibiotics, and, at least in Australia, niacin is not an antibiotic. Dr Metzler includes in his report that Mrs Filmalter suffered a reaction to penicillin in 1997, with the diagnosis being Stevens-Johnson syndrome/allergic reaction and the action plan as “advised patient not to ingest penicillin or sulphur.” [my underlining]
29. [29]
    Dr Metzler then records in respect to the 2007 incident that the diagnosis was anaphylaxis, the result was full recovery, no pending issue, and the action plan was to “stay away from the mentioned antibiotics by Dr M S Khan.” The report of Dr Metzler does not sit easily with the report of Dr Khan, as Dr Khan’s advice was to stay away from antibiotics, it would seem all antibiotics, including penicillin and Avelon.
30. [30]
    Whereas Dr Metzler's note is to stay away from the “mentioned antibiotics” and in Dr Khan's report, the “mentioned antibiotics” are penicillin and Avelon. Dr Metzler's report of 7 August 2022 also makes plain that after the 1997 reaction to the penicillin, Dr Metzler's advice to Mrs Filmalter was not to ingest penicillin or sulphur. And so, as discussed below, he administered the fluoroquinolone antibiotic Avelon, which is in a different class of antibiotics from penicillin which caused the 2007 allergic reaction.
31. [31]
    The first sentence of Dr Metzler's report suggests that it is his view that Mrs Filmalter is allergic to specified antibiotics and not all antibiotics.
32. [32]
    In 2008, the Filmalter family left South Africa and came to Australia, first settling in Adelaide. After three years in Adelaide and in or about 2011, the family relocated to Queensland. According to Mrs Filmalter, between 2007 and 2014 she did not take antibiotics.
33. [33]
    In December 2013, Mrs Filmalter commenced working short day shifts as a trainee dump truck operator at the Burton Mine. According to paragraph 37 of Exhibit 2, Mrs Filmalter worked as a dump truck operator for 6.3 hours on 3 February 2014, 7.15 hours on 4 February 2014, and 7 hours on 5 February 2014.

Wednesday, 5 February 2014 – Moranbah Hospital

34. [34]
    After her work was completed on 5 February 2014, Mrs Filmalter attended the Moranbah Hospital where she was assessed by Nurse Tredgett. According to Mrs Filmalter, Nurse Tredgett performed a urine test which came back positive for blood in the urine. Mrs Filmalter said that the nurse wanted her to stay overnight at the Moranbah Hospital, which Mrs Filmalter refused as she had to go home to her children. Mrs Filmalter says that Nurse Tredgett then advised her to go and see one of the local town doctors in the morning.
35. [35]
    The records of the Moranbah Hospital at pages 1377 to 1380 are more informative. The records show that Mrs Filmalter attended the Moranbah Hospital at 6:20pm on 5 February 2014 and was assessed by Nurse Tredgett. Importantly, Nurse Tredgett recorded Mrs Filmalter reported that she had an allergy to penicillin, but in addition, whilst not being an allergy, Nurofen would give Mrs Filmalter heartburn.
36. [36]
    A full set of observations were taken and the urine test results contained at page 1378 revealed that there was blood in Mrs Filmalter's urine. The presenting complaints were haemorrhoids and abdominal pain. Kidney stones were recorded in the history. A full set of observations were taken, with the outstanding result being that Mrs Filmalter complained of pain at a level of 7 out of 10. The second urine test report at page 1379 is not particularly clear, but appears to indicate trace elements of leukocytes with, as far as legible, the report including "leu trace".
37. [37]
    The detailed nursing note of Nurse Tredgett at 1380 includes Mrs Filmalter being in a great deal of pain, having pain in her back and on four quadrants of her abdomen. Nurse Tredgett consulted the on-call doctor, Dr Nieuwoudt, who prescribed 30mg of Ketorolac. However, Mrs Filmalter refused that drug as it contained codeine and Nurofen. Nurse Tredgett advised Mrs Filmalter to return to hospital if concerned, but to see her general practitioner the following day for treatment for haemorrhoids and her kidney stones.
38. [38]
    According to her quantum statement, on Thursday 6 February 2014, Mrs Filmalter worked for 7.10 hours and then after work attended at the Moranbah Medical Centre.

Consultation of Thursday, 6 February 2014

39. [39]
    An important controversy of fact between the parties relates to what Mrs Filmalter advised Dr Swenson concerning a history of allergy in the first consultation on the afternoon of Thursday 6 February 2014. The first area of controversy as to what occurred in the consultation of 6 February 2014 is who was present at the consultation.
40. [40]
    That issue is surprising because in paragraph 3(g) of the second amended statement of claim filed 5 April 2024, Mrs Filmalter alleged that at the consultation on 6 February 2014, she advised Dr Swenson that “her husband was away, and she was scared to take any medication that may cause her to have a reaction”. That allegation is admitted by paragraph 3A of the second amended defence of the defendant filed 1 July 2024. It is, of course, impossible to accept that admitted fact if, in truth, as deposed to by both Mr and Mrs Filmalter, that Mr Filmalter was sitting beside Mrs Filmalter in the consultation.
41. [41]
    Counsel for Mrs Filmalter argues with reference to the passage at T5-98, lines 1 to 6, that Dr Swenson’s note “Further stated that as her husband was away she was scared to take any medication that may cause her to have a reaction” was not in any way a reference to what was occurring at the time of the consultation, but rather was a recording that Mrs Filmalter had a concern about suffering an allergic reaction because her husband was working away.
42. [42]
    The submission was that such an interpretation was not inconsistent with Mr Filmalter being present at the consultation. I do not accept this submission.
43. [43]
    On 6 February 2014, Dr Swenson discussed the possibility of prescribing antibiotics after the receipt of the radiology and pathology tests. Given that Dr Swenson would be aware of the short half-life for the antibiotic (made plain by the fact that they need to be consumed sequentially to have an effect), it does not make any sense for Dr Swenson to make the recording she did, if in fact Mr Filmalter was sitting in the consultation room. Presumably if Mrs Filmalter said “my husband is away” when he was sitting beside her then Dr Swenson would have noted such an odd allegation.
44. [44]
    Dr Swenson had an hour-long consultation with Mrs Filmalter, and it seems to me that it is clear that Dr Swenson only recorded the salient features of the consultation and not everything that was said. It is difficult to accept, and I do not accept that Dr Swenson would note as a salient feature that Mr Filmalter was away unless it was the case that Mr Filmalter was not present at the consultation. If Mr Filmalter was in fact present at the consultation, there would be no point in making the note.
45. [45]
    I reject the evidence of Mrs Filmalter and Mr Filmalter that Mr Filmalter was at the consultation of 6 February 2014 for several reasons. The first is that it is an admitted fact that Mr Filmalter was not there. The second is that Dr Swenson, whose evidence I accept on this issue, swears that Mr Filmalter was not there.^[6] The third reason is there is no note of Mr Filmalter being present. The fourth reason is that the consultation was an extremely lengthy consultation, almost up to an hour, yet Mr Filmalter’s evidence of what occurred in the consultation is extremely brief. The fifth reason is that the type of examination required to test for haemorrhoids, which occurred, is quite intimate and is something unlikely to be forgotten nor the subject of evidence from Mr Filmalter.^[7] The sixth reason is that in Dr Swenson’s notes at page 1330, records “husband away”. The seventh reason is that Mr Filmalter’s statutory declaration of 16 June 2015 (pages 3592 to 3593) makes no reference to his presence on 6 February 2014.
46. [46]
    I find as a fact that Mr Filmalter was not present at the consultation on Thursday, 6 February 2014, and consider that this finding does adversely affect the credit of both Mr and Mrs Filmalter. This finding of fact is also important as to the acceptance of what was said in respect of the consultation of 6 February 2014, regarding Mrs Filmalter's allergies. The rejection of Mr Filmalter's and Mrs Filmalter's evidence in this respect is also relevant to the second major controversy regarding the consultation of 6 February 2014.
47. [47]
    The second controversy is what was said by Mrs Filmalter in respect of her history of allergies. Mrs Filmalter's evidence is that she told Dr Swenson that she had an allergy to penicillin, sulphur, niacin and some other antibiotic which she did not know the name of.^[8] Mr Filmalter's evidence was precisely the same.^[9] As Mr Filmalter was not present at the consultation, I conclude that Mr Filmalter's memory of being there and having heard and deposed to what Mrs Filmalter precisely said is deliberately false rather than an error of Mr Filmalter.
48. [48]
    Mrs Filmalter accepts, as a consequence of her stroke in 2017, that she has a poor memory. It is therefore possible that she has forgotten what had been said. The transcript, however, is replete with Mrs Filmalter's evidence which generally contains great detail as to what happened and where it occurred. For example, Mrs Filmalter's recollection of her extremely high blood pressure in Entabeni hospital could, I would conclude, only come from a careful reading of the Entabeni Hospital records and a recollection of those records. Despite this I do accept that Mrs Filmalter does have difficulty with her memory. Memory deficits are noted in Dr O'Dowd’s report of 5 March 2020. In particular Mrs Filmalter has a severe deficit in delayed memory (page 414). I conclude that Mrs Filmalter does not have a reliable long term memory and therefore where Mrs Filmalter’s evidence conflicts with Dr Swenson, I prefer Dr Swenson’s evidence. 
49. [49]
    Mr Filmalter's evidence that she informed Dr Swenson that she was allergic to penicillin, sulphur, niacin, and some other antibiotic of which she did not know the name, is a critical factual issue in the trial. As there are only two witnesses to what was said in the consultation of 6 February 2014, it is a matter of considering both witnesses’ evidence.
50. [50]
    Dr Swenson's evidence at T5-30 to T5-31 was clear and consistent. With reference to her notes, Dr Swenson explained how she used the drop-down menu in the computer notes of the Moranbah Medical Practice to take an allergy history from Mrs Filmalter at the commencement of her consultation. I accept Dr Swenson's evidence that she commenced the consultation by taking an allergy history from Mrs Filmalter, that Mrs Filmalter said she had suffered from an allergy to penicillin and sulphur, which had caused her to suffer from hives, requiring an admission to an intensive care unit with the diagnosis of anaphylaxis of moderate severity.
51. [51]
    I accept Dr Swenson's evidence in this regard, as it is verified by her notes, which were made at the time of the consultation. This history is also similar to, but not precisely the same as the history of allergies recorded at the Entabeni Hospital in 2007, where the allergies are recorded as penicillin, sulphur and Nicene.
52. [52]
    There is also relative consistency with the relatively contemporaneous notes contained in the Moranbah Hospital Records (pages 1372 and 1377), which record the allergy to penicillin. In particular at page 1377, Nurse Tredgett has recorded the allergy as penicillin, but also made the note in brackets of Nurofen causing heartburn. I consider it highly unlikely that Mrs Filmalter would have told Dr Swenson anything beyond the assertion that she had an allergy to penicillin and sulphur.
53. [53]
    If in fact Mrs Filmalter had told either Nurse Tredgett or Dr Swenson that she had an allergy to three known substances (penicillin, sulphur, Nicene) and one unknown substance (being some other type of antibiotic which she did not know the name of), then in my view, it is inevitable that Nurse Tredgett, who appeared to take very careful notes, and Dr Swenson, who also recorded comprehensive notes in terms of the assessment of general practitioners notes, would have noted that Mrs Filmalter was allergic to some other antibiotic but she could not know the name of. That to any treating practitioner was an extremely important fact.
54. [54]
    I consider that Dr Swenson's notes are, whilst far from being a complete transcript of what occurred are comprehensive notes of the salient features of the consultation. Dr Swenson’s notes are more detailed then the much shorter notes of the very experienced general practitioner Dr Scholtz and other notes in Exhibit 1. I accept Dr Swenson’s evidence, that as a GP in practice for only 4 days, she had ample time to made detailed notes.
55. [55]
    Furthermore, Ms Filmalter’s evidence at T1-38, line 35 to 40, that Dr Swenson told her she would prescribe an antibiotic from a different class, does not make any sense at all, if Mrs Filmalter could not identify all the antibiotics which caused her an allergic reaction. On her attendance at the Mackay Base Hospital on 27 March 2012 (page 1714) and on 19 August 2013 (page 1718), Mrs Filmalter stated she was allergic to penicillin, sulphur and Nicene. There is some degree of consistency in the provision of this medical history.
56. [56]
    Therefore, I find as a fact that in the consultation of 6 February 2014, the history provided to Dr Swenson in terms of allergies was, as recorded by Dr Swenson on page 1321 and 1330, that Mrs Filmalter had a history of allergic reaction to penicillin and sulphur, causing her to suffer from hives requiring admission to an intensive care unit suffering from anaphylaxis of a moderate severity, and that Mrs Filmalter had refused to take antibiotics since she had had the bad reaction in 2007. The notes also record at page 1330 that Mrs Filmalter's husband was away at the time of the consultation, which confirms with the admission in paragraph 3(g) of the second amended statement of claim.
57. [57]
    There is some common ground between Dr Swenson and Mrs Filmalter as to what was discussed in the consultations of 6 and 7 February 2014. However, in all cases where there is a conflict as to what was said in the consultation of 6 February 2014, I prefer the evidence of Dr Swenson, which was essentially based upon her contemporaneous notes over that of the evidence of Mrs Filmalter. Apart from the difficulties Mrs Filmalter considers she has with her memory as a result of her stroke and the passage of time, there is also the difficulty that, as recorded by Dr O'Dowd, Mrs Filmalter is extremely angry as to what occurred to her. I conclude that Mrs Filmalter does not have an accurate recollection of what occurred in the consultation of 6 February 2014.
58. [58]
    Prior to the consultation of 6 February 2014, I accept Dr Swenson's evidence that Nurse Tredgett from the Moranbah Hospital telephoned Dr Swenson to inform her of her concern regarding Mrs Filmalter. I accept the information at T5-26 to T5-27, namely that Dr Swenson was told that Mrs Filmalter's blood pressure was low, the dipstick tests showed blood in the urine and the leukocytes in the dipstick were elevated. I accept Dr Swenson's evidence that Nurse Tredgett told Dr Swenson that Mrs Filmalter had a history of renal stones, but it was the positive finding in respect of the leukocytes which was of interest to her as they were fighter cells indicating some sort of infection.
59. [59]
    Dr Swenson conceded that the positive finding of the presence of leukocytes was not diagnostic of itself, particularly from a dipstick test, however the positive finding of leukocytes or white fighter cells on a urine test, which subsequently is confirmed on 8 February 2014 by a blood test is important. The consistency of the finding of the test does point to a very strong inference that Mrs Filmalter was suffering from some type of infection.
60. [60]
    However, that was not the only sign of infection. I accept Dr Swenson's evidence at T5-36 that Mrs Filmalter's temperature of 37.2 was consistent with the finding of a low-grade fever. I further accept the logic of Dr Swenson's comment at T5-36 lines 5 to 10, in respect of the 37.2 temperature:

“…So you have a patient who's been in pain. It meant that she had a low grade fever but that it could have been higher because she would have been taking medication for her pain…”

61. [61]
    Although the Moranbah Hospital notes record Mrs Filmalter refusing to take codeine and Nurofen, it does record (page 1380) that she was given and had taken Panadol for pain relief. A third indication of infection relied on by Dr Swenson was the heart rate of 109, which Dr Swenson at T5-37 indicated was a mild tachycardia. Mrs Filmalter also had a higher than normal blood pressure of 125 over 90.^[10]
62. [62]
    I accept Dr Swenson's evidence that she undertook a careful abdominal examination of the four quadrants of the abdominal area with the result that she had pain in her kidney area, again consistent with renal colic or kidney stones. I accept Dr Swenson's evidence at T5-43, also based upon, page 1329, that Mrs Filmalter had given a history of feeling unwell since November last year and feeling particularly nauseous for the last two weeks.
63. [63]
    I accept Dr Swenson's evidence at T5-45 that that history was consistent with infected kidney stones:

“…struvite stones, they can actually get an infection where the bacteria actually live inside the stone, and then they sort of break out and somebody feels unwell, and then it just carries on. It doesn’t get worse than that, unlike a urinary tract infection in the respect of bacteria just sitting there and they’re just breeding, breeding, and you’re just getting sicker and sicker. But I didn’t know whether potentially she had a pyelonephritis because it sounded more like it was upper urinary tract infection, not lower.”

64. [64]
    Infection of the struvite stones is also confirmed by the acknowledged error in the note at page 1330, where the pathology requested was meant to include struvite but erroneously referred to stelazine.
65. [65]
    I accept Dr Swenson's evidence and as contained in notes, page 1330, that she requested pathology and radiology.
66. [66]
    The consultation on 6 February 2014 was a long consultation, approximately an hour long.  According to Mrs Filmalter, during the long consultation, Mrs Filmalter and Dr Swenson were chatting about Durban, South Africa, and the discussion included chatting about the Entabeni hospital.
67. [67]
    Dr Swenson's recollection of the conversation is quite different. Dr Swenson was firm in her evidence that Mrs Filmalter did not identify the name of the hospital where she was admitted in South Africa in 2007.^[11] Dr Swenson went on to say that she asked where the hospital was, and asked if it was the well-known Cape Town Hospital Groote Schuur. The identification of the hospital where Mrs Filmalter received treatment is an important issue, as Dr Swenson did advise Mrs Filmalter to obtain the notes from the hospital to confirm her recollection that the antibiotics to which Mrs Filmalter had previously had the allergic reaction was penicillin and sulphur.
68. [68]
    I accept Dr Swenson's evidence that she did say to Mrs Filmalter it was a pity that her hospital admission did not occur in Durban because Dr Swenson could have identified the hospital as she had trained in radiography at Addington Hospital in Durban, and her mother had worked in administration at St Augustine's Hospital, also in Durban. In addition, Dr Swenson's close friend, Ms Horsley, was a radiographer at St Augustine's Hospital and Entabeni Hospital. Dr Swenson’s evidence, which I accept, is that she used to go and visit her friend Ms Horsley at Entabeni Hospital.^[12] It seems to me then highly likely that had Mrs Filmalter recalled the name of the hospital or mentioned that the hospital was in Durban, then it would have been identified by Dr Swenson.
69. [69]
    As Dr Swenson recalled,^[13] after Mrs Filmalter said she could not remember the name of the hospital, Mrs Filmalter said “maybe her husband could”.
70. [70]
    In my view, Dr Swenson’s version of the consultation is a logical and consistent version of events, and that which I accept. Had Mr Filmalter been present, then, given the dramatic events of 28 August 2007, in my view, it would have been inevitable that Mr Filmalter would have named the hospital as the Entabeni Hospital. After all, he was a superintendent of police at that stage who assisted his wife by driving her to the hospital. Furthermore, it seems to me that if that had occurred, there is little doubt, given the importance of the records of the hospital, that Dr Swenson would have noted the identity of the hospital as the Entabeni hospital.
71. [71]
    An additional important feature in this case is paragraph 3(e) and (f) of the second amended statement of claim as it contains Mrs Filmalter’s pleaded case as to what was said on the 6 February 2014. There are two outstanding features. The first is that it contains only Mrs Filmalter advising Dr Swenson that she was allergic to penicillin and sulphur. It does not contain any allegation that Mrs Filmalter advised Dr Swenson she was allergic to any other substance, let alone any other unknown antibiotic.
72. [72]
    The second feature is that Mrs Filmalter’s pleaded case makes reference only to one prior bad reaction to the prescription of antibiotics and relates that only to prescription of penicillin in 1994, when Mr Fillmore was 21 years of age.
73. [73]
    It expressly records following the bad reaction in 1994 when Mr Fillmore was 21 years of age that her “treating doctor advised her not to take penicillin again”. In my view, the plaintiff is pleaded case, containing her early factual allegations, are consistent with Dr Swenson’s evidence and not consistent with Mrs Filmalter’s evidence at trial. In the plaintiff’s pleaded case, there is no suggestion at all that Mrs Filmalter made Dr Swenson aware of a second bad reaction to any antibiotic, nor any reference to the Entabeni Hospital, nor any reference to any unidentified antibiotics.
74. [74]
    In my view, the absence of the allegations of the plaintiff in her own pleading and the course of the conversation as identified by Dr Swenson, confirms my view of the high likelihood that Mrs Filmalter did not identify the name of the hospital as the Entabeni hospital, and it further confirms that Mr Filmalter was not present at the consultation of 6 February 2014. It is also consistent with Dr Swenson advising Mrs Filmalter that she should check her immigration records as she ought to have brought with her health records as part of the immigration process. Towards the conclusion of the consultation on 6 February 2014, Dr Swenson advised Mrs Filmalter that she was to return the following day and that they would run some more urine tests.

Consultation of Friday, 7 February 2014

75. [75]
    On the morning of Friday, 7 February 2014, Mrs Filmalter attended on Dr Swenson at Moranbah Medical for a further lengthy, approximately one-hour-long consultation. According to Mrs Filmalter, Dr Swenson arranged for both blood and urine tests, and Dr Swenson repeated her advice to go to Nebo Road in Mackay to obtain the radiology. Mrs Filmalter's evidence, which I accept in this regard, was that Dr Swenson told Mrs Filmalter that she may need to be placed upon antibiotics, to which Mrs Filmalter replied that “I’ve already told you, I can’t take antibiotics.”^[14]
76. [76]
    Mrs Filmalter then said that Dr Swenson again explained there were different classes of antibiotics and just because a person is allergic to one class does not mean they are allergic to other classes of antibiotics. Mrs Filmalter also said that she discussed her general health, her weight, and her career aspirations with Dr Swenson. For any person with a self-admittedly poor memory due to the effects of strokes, to recall the detail of a conversation from over a decade ago is, in the absence of notes, an extraordinary feat. Although I accept Mrs Filmalter's evidence that in fact her general health, her weight, and her career aspirations were discussed in the consultation of 7 February 2014, it seems to me this flows from the fact that they are recorded in Dr Swenson's notes of the consultation of 7 February 2014.
77. [77]
    It is also plain to me that Mrs Filmalter has closely studied Dr Swenson's notes. Mrs Filmalter took great umbrage at the entry “?BPD?” contained in Dr Swenson's note of 26 February 2014. Mrs Filmalter was outraged that Dr Swenson could have considered that Mrs Filmalter had a borderline personality disorder, and Mrs Filmalter contrasted that with Dr Swenson's note on 7 February 2014 of "Mentla [sic] health - happy with family and career – lookign [sic] to progress in next two years - no pending issues” as proof not only of the fact that her mental health was fine, that Dr Swenson was inconsistent in recording a good mental health on 7 February 2014 with the suggestion of a borderline personality disorder on 26 February 2014.
78. [78]
    It seems to me plain that Mrs Filmalter has read and studied all of the medical notes relating to her case, and there is therefore the added difficulty of attempting to discern what actually is in Mrs Filmalter's memory concerning what occurred on a particular date, what Mrs Filmalter believes to be in her memory as a result of repeatedly reading the medical notes relating to her case, and what, if any, level of reconstruction of memory has occurred through these processes.
79. [79]
    Another significant difference between the recollections of Dr Swenson and Mrs Filmalter is that Mrs Filmalter recalls with 100% certainty that she told Dr Swenson that her general practitioner was Dr Meltzer at the Bluff Medical Centre.^[15] Dr Swenson is equally adamant that that did not occur. Dr Swenson explained in detail:^[16] “No. She definitely didn’t mention his name…” and she explained that “…you don’t filter out that's medical information relevant to her case."
80. [80]
    Dr Swenson explained that she knew Dr Meltzer and she knew of the Bluff Medical Centre because she had a close connection to the centre. Dr Swenson explained that her father, stepmother, and two sisters attended the centre, as did Dr Swenson herself and her two sons. It seems to me to be quite difficult to conceive that Dr Swenson, who had such a close relationship over many years with the Bluff Medical Centre and knowledge of Dr Meltzer, would not have recalled the Bluff Medical Centre nor Dr Meltzer being mentioned. It seems to me highly likely, in accordance with Dr Swenson's careful note-taking, that she would have included that information in her notes. I accept Dr Swenson's reasoning that she was interested in the identity of the treating practitioners in South Africa as that would have enabled a much faster retrieval of medical notes to provide confirmed details of Mrs Filmalter's advice as to her allergies to penicillin and sulphur.
81. [81]
    I accept Dr Swenson's evidence^[17] that she wanted to place Mrs Filmalter on antibiotics on Thursday, 6 February 2014, but Mrs Filmalter refused to take the antibiotics because she said her husband was away, that Mrs Filmalter had not visited many GPs in the last 10 years, and she was scared of having another reaction, as she previously had in South Africa.^[18] I accept Dr Swenson's evidence that her plan was on 6 February to get pathology, get the CT scan, and then to discuss the results with Mrs Filmalter.
82. [82]
    I accept Dr Swenson's evidence for the consultation on 7 February 2014 was that it was Dr Swenson who asked Mrs Filmalter to attend upon her because she was worried about Mrs Filmalter. Dr Swenson's evidence is that on 6 February, she asked Mrs Filmalter to go directly to Mackay. She explained:^[19]

“…that's based on the fact that struvites can do little things or it can be a big one and burst open and it's, like, woof, you’re gone. You know, like, in a few hours, you can be really, really, really ill."

83. [83]
    It was notable that this part of Dr Swenson's reasoning was not challenged in cross-examination, nor by any of the experts called in the plaintiff's case. Dr Swenson in fact explained that it was because she considered that Mrs Filmalter might have become very ill in a very short period of time that she wanted her to go straight to Mackay. However, Mrs Filmalter resisted that advice, and so she booked a follow-up consultation on the morning of Friday, 7 February 2014.
84. [84]
    I accept, Dr Swenson wanted the CT scan undertaken immediately and had to call up the senior doctor (“Fritz”) to get the CT scan immediately and she would do this only in urgent or emergency cases.^[20] Dr Swenson referred to her notes at page 1329, and explained that she took the observations from Mrs Filmalter, with a blood pressure of 107 over 76, a heart rate of 93, BMI of 30, but she did not record Mrs Filmalter's temperature. Dr Swenson conceded that it is likely that she did not record Mrs Filmalter's temperature because she was afebrile.
85. [85]
    This is an important issue in the context of the submission from the plaintiff's case that Dr Swenson had altered the medical records. I reject that submission. I think it highly likely that if a medical practitioner, was to alter the records, the first thing they would do in respect of the consultation of 7 February 2014 is to record a very high temperature, which would be confirmative of a severe infection. In fact, the temperature is not recorded at all.
86. [86]
    Dr Swenson fairly conceded that this was likely because there was no abnormality in the temperature strongly suggests that the medical notes had not been altered or inappropriately changed by Dr Swenson. If Dr Swenson was wishing to alter her notes to support her case, then one would expect a high temperature recording on 7 February 2014 and a recording of severe symptoms being suffered by Mrs Filmalter on 8 February 2014.
87. [87]
    As that is absent, is another confirmation of the accuracy of the notes. I find that Dr Swenson has not altered medical notes at Moranbah Medical Centre. I do accept Dr Swenson's evidence that she did on 15 January 2015 not only make the entry recorded at pages 1326-1327, but also make the same notation to page 1321, by inclusion of the words "Norfloxacin – urticaria, hives, Severity: Caution" and adding the handwritten note "(Added 15 January 2015 in case she sees someone here again) …"
88. [88]
    I accept Dr Swenson's evidence that that was a notation in the file to prevent any further prescription of norfloxacin or a similar drug. I also accept Dr Swenson's evidence that ingestion of the Panadeine Forte and Panadol had the effect of lowering Mrs Filmalter's temperature such that she may have an underlying infection with a normal temperature. I accept Dr Swenson's evidence^[21] that she concluded the consultation on 7 February 2014 by providing Mrs Filmalter with the medical certificate and reiterating her advice to have a CT scan taken, that her blood pathology would be tested in Mackay, and that she would follow up on the haemorrhoid issue by referral to a gastroenterologist for a colonoscopy.
89. [89]
    Pages 1339 and 1340 show that Mrs Filmalter attended at Queensland X-ray Services in Mackay for a CT of her abdomen, pelvis, and lumbar spine at 1:15 pm on 7 February 2014. The CT was reported the same day relevantly as follows: "Bilateral renal calculi, multiple on the left in the lower pole calyces and solitary on the right." This report was on 7 February. Dr Swenson did not see the CT results until the morning of 8 February 2014.

Saturday, 8 February 2014

90. [90]
    As a mature age student, and after several years of training, Dr Swenson commenced her practice as a general practitioner on Monday, 3 February 2014. In her first week, Dr Swenson was rostered on from 8:00 am to 8:00 pm from Monday to Friday. Dr Swenson does not recall if she was rostered on to work on Saturday, 8 February.
91. [91]
    In any event, she attended Moranbah Medical Practice on the morning of Saturday, 8 February 2014, specifically regarding Mrs Filmalter, as she was “looking for those results, because I was really concerned about her and I didn’t know if she was---where she was in that pattern of---of infection. You know, it could have been resolving. It could have been getting worse…”^[22] I accept this evidence.
92. [92]
    Dr Swenson's notes of the telephone consultation of 8 February 2014 would appear to be uncharacteristically short. They record in total the following:

“Date created: 8/02/2014 08:55 AM

By Dr Margaret Swenson

Results report received.

Results report received. PT in Mackay - needs to start oin[sic] ABs immediately for UTI - spoke to her

Phoned and faxed through script to Rural View Chemmart in Mackay.

Script written-GENRx Norfloxacin (Tablets) 400mg-Rpts:1”

93. [93]
    These notes, as Dr Swenson said, indicate the time that Dr Swenson opened the note was at 8:55 am. Dr Swenson explained that she did not have remote access at that stage to the medical files. That is why she came to the clinic, as she was concerned about Mrs Filmalter's health. The CT scan results had been reported the previous day. It was on the morning of 8 February 2014 that Dr Swenson became aware of the positive finding of multiple renal calculi in the left lower pole of Mrs Filmalter's kidney and a solitary renal calculus in her right kidney.
94. [94]
    As shown on pages 1333-1336, the blood and urine results were not reported until 10:26 am on 8 February 2014. On page 1339, it shows that at 11:43 am on 8 February 2014, Dr Swenson prescribed norfloxacin tablets for “acute bacterial enterocolitis: Complicated urinary tract infection.” It is important to record that I accept Dr Swenson's evidence as verified by page 1332, that whilst Dr Swenson had access to most of the blood and urine test results, she did not have access to the culture results. The culture result was in fact not reported until 12 February 2014 at 12:54 p.m.
95. [95]
    In respect of the results of the urine pathology, at page 1336, Dr Swenson explained that the absence of erythrocytes, being the red blood cells, informed her that the stones in Mrs Filmalter’s kidneys were not causing bleeding from the kidneys or tubes, or anywhere in the renal passage. The leukocyte result of 30 was more than three times the normal level of less than 10 and was reported by the pathologist with the indication of a plus sign beside leukocytes. As Dr Swenson said, which appears to be accepted by all experts, the positive finding of leukocytes is an indicator of infection, but by itself was not definitive of an infection.
96. [96]
    Dr Swenson commented that the result of trace protein in the urine indicated that there was damage up in the kidney. Again, no expert disputed that conclusion. The urine result showed a PH of 8, which is evaluated and slightly alkaline, being an indicator of an infection being present, but that was not relied upon by Dr Swenson.^[23]
97. [97]
    In respect of the blood pathology recorded at 1335, Dr Swenson referred to the MCV result at 76, just below the normal range of 80 to 100, which indicated to Dr Swenson that the haemoglobin was down, but that could be normal for Mrs Filmalter. Dr Swenson noted, the white cell count at 7.9 was in the mid-range of normal at 3.5 to 12.0. Dr Swenson's comment was that she could not take a lot from the blood results other than an iron deficiency, it may have indicated “an acute phase reactant, which means when there is inflammation, they get used up”.^[24]
98. [98]
    In respect of the blood results on page 1334, Dr Swenson commented that the EGFR and creatinine, which is a measure of kidney health, looked good. In respect of the c-reactive protein score of 7mg/l with a normal range of zero to 10, Dr Swenson commented that ERP at seven looked fine, but if somebody is getting ill, it rises, and then it rises relatively quickly within three days and falls within three days. So the ESR and the C-reactive protein (CRP) are usually seen together. “ESR is, like, it had been going on for a couple of weeks or months, then it --- then it would’ve told me that there was this long-term process, and the CRP being up or not would’ve told me um, if it was, um you know, something that was happening sort of in between. So I did look at it, and it did not have much significance for me unless I had two of them.”^[25]
99. [99]
    In respect of the urine sample of 8 February 2014 as reported at 1336, Dr Swenson did not see anything in the results which caused her to doubt the reliability of the result at that time.^[26]
100. [100]
     After reviewing the results, Dr Swenson was asked to explain the evolution of her thinking with respect to Mrs Filmalter's condition. Dr Swenson's evidence was:^[27]

“…because she’d mentioned that she had this allergy to these two antibiotics, and she was really quite anxious. Um --- actually, not just about antibiotics, you know, about this thing going on for so long, and what it is, and so on. Right? She just wanted to know, you know, what it was and get to the bottom of it. It was affecting her life … I wanted to make sure that if I was going to put her on antibiotic --- remember, I was going to talk to her first --- um --- that is was going to be another class, far removed, not often used in this um --- country, and not often used actually as much in South Africa either. Um --- they use ciprofloxacin more. But … I took my time … and looked up some things, and I looked up --- when I --- the therapeutic guidelines, ETG, they are called.”

101. [101]
     Dr Swenson explained she looked up the therapeutic guidelines for a class of antibiotics which were not related to penicillin or sulphur. The ETG suggested that the best choice in those circumstances was the fluoroquinolone class. So either ciprofloxacin or norfloxacin. Dr Swenson explained that she made the choice of norfloxacin because ciprofloxacin is more widely used. Because norfloxacin was not widely used, Dr Swenson looked at the product information and considered the potential side effects. After determining that norfloxacin was the best drug to use, Dr Swenson then needed an authority approval because the drug was not often used and kept for serious cases. Dr Swenson got authority from a pharmacist out of the Pharmaceutical Benefits Scheme only after she had first discussed the prescription of that medication with Mrs Filmalter. I accept her evidence in this regard.
102. [102]
     Dr Swenson's evidence,^[28] which I accept, is that when she telephoned Mrs Filmalter on the morning of 8 February 2014, the first thing that she asked was how she was feeling, and that Mrs Filmalter said that her pain was better being on the medication, but she was still feeling really unwell. Dr Swenson said, and I accept, that she explained to Mrs Filmalter her urine and blood results which were suggestive of a mild upper urinary tract infection and that she was worried that it could turn into something more without the intervention of antibiotics.
103. [103]
     Dr Swenson explained:^[29]

“So my concern was we had a patient that had been unwell since November, and had not sought any treatment until February, had long-term known renal calculi, that had expressed that she'd been having nausea, she had been having intermittent fevers, she had been feeling unwell. She --- it was affecting her life, and then in the last two weeks and the pain, and the pain - but it - the pain got worse. These symptoms got worse. And then it got worse again. That's why she went to the ED, and I was concerned that, you know, that was Thursday, that there was something definitely, it could really go – um, she could get really ill and get uri --- um --- sepsis --- urosepsis, and because of her reluctance to want to go, she expressed it to me, “to go to a hospital or to go and seek medical help”, that was a concern too, so to intervene then would’ve stopped the progress.”

104. [104]
     I accept that Dr Swenson explained all of her concerns to Mrs Filmalter. Dr Swenson explained that it was a good plan for her to get the antibiotics and to be with her husband when she first took the first one and to note if there was any reaction. Dr Swenson explained it was unlikely that there would be a reaction as there was a whole different class of drug. But in the unlikely circumstance there was a reaction, she should cease immediately and go to the base hospital in case of a further reaction.
105. [105]
     Dr Swenson said, and I accept that she advised Mrs Filmalter that with allergic reactions, you can have an allergic reaction straight away, or you can have a delayed one like eight hours later or so, and therefore it would be a mistake not to go to the hospital if she had a reaction from the first medication. Dr Swenson did indicate, because her patient was anxious, that it would be appropriate if she go with her husband and sat with her husband in the car with a bottle of water and had the first medication outside the Mackay Base Emergency Department, so if anything happened, she was right there, and her husband could run in and get assistance.
106. [106]
     Dr Swenson said, and I accept, that she prescribed the drug after having referred to the expert guidelines, and she explained the side effects of the drug, which included the side effect of photosensitivity.
107. [107]
     I accept Dr Swenson's evidence of the content of the discussion of 8 February 2014 in most respects. I accept Dr Swenson's evidence^[30] that she told Mrs Filmalter that she still had a choice not to take the antibiotics. I accept Dr Swenson said this as it is consistent with Mr Filmalter’s evidence at T3-40. As Mrs Filmalter, was extremely reluctant to take antibiotics and needed some convincing that it would be safe for her to take those antibiotics, I find Dr Swenson did provide strong advice to take the antibiotic otherwise Mrs Filmalter was “going to be violently ill”.^[31]
108. [108]
     The only aspect of Dr Swenson's evidence I do not accept, in relation to the consultation of 8 February 2014, is that Dr Swenson's evidence was that she spoke only to her patient, Mrs Filmalter, on the morning of 8 February 2014. Mr And Mrs Filmalter's sworn evidence was that they were both part of the conversation on speakerphone and that Dr Swenson did speak directly to Mr Filmalter. I am conscious that page 1328 records Dr Swenson's note of "speak to her," indicating speaking to only Mrs Filmalter, however, it is a short note and did not go anywhere near recording all that occurred.
109. [109]
     On behalf of Mrs Filmalter, it is submitted there were key inconsistencies between Dr Swenson’s oral evidence compared to the statements she made to the Office of Health Ombudsman (OHO). It is submitted that these inconsistencies ought to lead to a conclusion that Dr Swenson’s evidence is unreliable and ought not to be accepted. Dr Swenson’s OHO statement is contained in a mere 19 paragraphs contained in four pages and two small paragraphs (page 3558 to 3562). Dr Swenson’s evidence is contained in 88 pages of transcript between T5-19 to T5-107. It is impossible for everything in the 88 pages of Dr Swenson’s evidence to be condensed into about 4 pages in a statement.
110. [110]
     The efficacy of the trial process in asking detailed questions in examination in chief and perhaps even more details questions in cross-examination shows that enormous amounts of detailed information can and ordinarily are obtained during the trial process. The fact that there is a great amount of further detail in Dr Swenson’s oral evidence does not of itself create an inconsistency with Dr Swenson’s statement to OHO dated 5 February 2015.
111. [111]
     On behalf of Mrs Filmalter it is submitted that a significant difference was that in her OHO statement Dr Swenson did not state that she gave Mrs Filmalter the choice not to take the antibiotic but to wait and see. Such detail is contained in Dr Swenson’s evidence-in-chief.^[32] The distinct advice that Mrs Filmalter did not have to take the antibiotic but had a choice to wait and see was not included in any part of the defendant’s pleading nor case, and nor was the plaintiff cross-examined upon that issue. That, in my view, is unremarkable. It was not on the pleadings, a part of the plaintiff’s case, that Dr Swenson failed to provide advice that a wait and see option was available. That was expressly disavowed as a particular of negligence at the trial.^[33] I consider that the omission of the wait and see advice from the OHO statement is not a major inconsistency, nor are there any other inconsistencies, major or otherwise, between Dr Swenson’s OHO statement and her evidence.
112. [112]
     As discussed at [107] above, Mr Filmalter has confirmed that he heard Dr Swenson advise^[34] if Mrs Filmalter did not take the antibiotics, she was going to get violently ill. The potential outcome of Mrs Filmalter suffering from urosepsis and becoming violently ill could only occur if Mrs Filmalter did not take the prescribed antibiotics. This can only be consistent with a conversation between Dr Swenson and Mr and Mrs Filmalter where the different options of taking as opposed to not taking the antibiotics were discussed. I accept Dr Swenson’s evidence that this issue was discussed, however, I accept Mr and Mrs Filmalter’s advice that Dr Swenson strongly advocated for the use of antibiotics for the reasons explained by Dr Swenson.
113. [113]
     In my view, Dr Swenson, as the medical expert, was duty-bound to provide advice to Mrs Filmalter. In my view it is completely contrary to duty and professional obligation of a medical practitioner to simply provide a patient with options as to treatment without explaining the consequences of the adoption of any of the options for treatment that were available.
114. [114]
     The principle that “the paramount consideration (is) that a person is entitled to make his own decisions about his life”,^[35] is meaningless and unworkable if medical practitioners do not explain the consequences of the available options.
115. [115]
     In light of Mrs Filmalter’s recent medical history, results of both the pathology and radiology, together with the updated history of worsening of symptoms from Mrs Filmalter, it was, in my view, proper practice for Dr Swenson to strongly advocate for the option presented to Mrs Filmalter of taking the antibiotic.
116. [116]
     I accept the evidence of Mr and Mrs Filmalter that Mr Filmalter was a part of the conversation, and that Dr Swenson was advocating the use of the antibiotic norfloxacin for the reasons Dr Swenson explained, namely that there was a risk of a serious illness of urosepsis (and perhaps death) occurring if the infection worsened, such that it was worth the risk of taking the antibiotic norfloxacin.
117. [117]
     I also accept the evidence of Mr and Mrs Filmalter that they had arguments, as Mrs Filmalter preferred the option of not taking the antibiotic but having been convinced to take it by Mr Filmalter and Dr Swenson and for the reasons explained by Dr Swenson.
118. [118]
     It is also in keeping with Dr O'Dowd’s finding that Mrs Filmalter is extremely angry, particularly angry at her husband, for essentially accepting Dr Swenson's advice that it was important for Mrs Filmalter to take the antibiotics to avoid the possibility of urosepsis.
119. [119]
     Although I accept the evidence of Mr and Mrs Filmalter in this regard as to Mr Filmalter's involvement in the conversation of 8 February 2014, it is important to record that it is no part of the plaintiff's case that Dr Swenson was negligent for failing to provide Mrs Filmalter with the option to wait and see on the morning of 8 February 2014. As discussed above, I find that Dr Swenson did provide Mrs Filmalter with an option of not taking the antibiotic but rather wait and see if anything occurred but Dr Swenson strongly advocated against that option.
120. [120]
     I accept Mr Filmalter's evidence that he and Mrs Filmalter had an argument on the afternoon of Saturday, 8 February 2014, in which Mrs Filmalter said that she would not take the antibiotics. Nonetheless I accept Mr Filmalter’s evidence that he went and purchased the norfloxacin. I am conscious of Mrs Filmalter’s sworn statement in her notice of claim (at page 6), that she “collected the antibiotics from chemist” but consider it likely that Mr Filmalter actually collected the antibiotics as Mrs Filmalter was angry and reluctant to take antibiotics.

Sunday, 9 February 2014

121. [121]
     On the morning of Sunday, 09 February 2014, Mr and Mrs Filmalter had another argument about Mrs Filmalter not taking the antibiotics. Mr Filmalter argued that Mrs Filmalter had to take the antibiotics, otherwise she'd get quite sick, and then, according to her evidence, Mrs Filmalter snatched the antibiotics off the counter and put a tablet in her mouth and said to Mr Filmalter, "Are you happy now?"
122. [122]
     According to Mrs Filmalter, after taking the first tablet, Mrs Filmalter felt a bit tingly, but brushed it aside and did not think any more of it, although that is perplexing, particularly in view of her own history of severe reactions to antibiotics and her arguments with her husband and discussions with Dr Swenson. Logically, Mrs Filmalter ought to have known that any minor sign ought to alert her to seek medical attention. She did not do so as, I infer, she was angry.
123. [123]
     According to Mr Filmalter, there was another big argument before she took the second tablet in the afternoon. According to Mrs Filmalter, whose evidence on this I accept, it was after she took the second tablet that she felt her ear canal was burning, she felt flushed, very hot, and a burning sensation over her back and arms. She also felt flushed, had shortness of breath, and considered herself suffering from an allergic reaction. Upon feeling these sensations, Mr Filmalter drove Mrs Filmalter to the Mackay Base Hospital.
124. [124]
     Mr Filmalter arrived at the Mackay Base Hospital at 10:28 pm. A history of having a reaction to two doses of norfloxacin is recorded. Mrs Filmalter described skin itching and burning but denied any respiratory distress. Mrs Filmalter was offered Phenergan but declined it, but instead consumed loratadine. The doctor's notes in the emergency clinic record that Mrs Filmalter did not have a rash and denied any dizziness, nausea, or shortness of breath. The note also records “anxious+++ about taking medications.”
125. [125]
     The Mackay Base Hospital records record, and I accept, that Mrs Filmalter had a mild allergic reaction to the two tablets of norfloxacin that she had consumed.
126. [126]
     Mrs Filmalter recalled^[36] that she was given a certificate for a day off work by Dr Marden. The Mackay Base Hospital Emergency Department clinical record^[37] records the attending doctor as Dr Marden. Given the passage of time, I think it unlikely Mrs Filmalter would have recalled Dr Marden's name from her own memory. I think it more likely that Mrs Filmalter recalled Dr Marden's name by studying the records from the Mackay Base Hospital. Page 1777 records the triage nurse Daniel recording an allergy to penicillin, however Dr Marden recorded a history of “severe allergic reactions to multiple drugs…”
127. [127]
     Mrs Filmalter's evidence is that after taking the tablet, she was flushed, and she had a red tinge on her face. I accept Mrs Filmalter's evidence that she had a flushing or red tinge on the face for a short period of time. I find that she did not have a flushing or red tinge to her face when she attended at the Mackay Base Hospital at 10:28 pm on 9 February 2014, as Dr Marden specifically noted on examination that Mrs Filmalter “looks well.”
128. [128]
     Dr Marden also noted "scratching arms, no rash, talking in full sentences, vitals normal, no wheeze." Dr Marden's impression was "mild early reaction to antibiotics."

10 to 28 February 2014

129. [129]
     Mrs Filmalter had a medical certificate to remain off work on Monday, 10 February 2014, and did not attend work on that day. Mrs Filmalter then returned to work on Tuesday, 11 February 2014, and worked seven hours. Mrs Filmalter returned to work on Wednesday, 12 February 2014, and worked 6.4 hours.
130. [130]
     At 5:13 pm on Wednesday, 12 February 2014, Mrs Filmalter attended upon Dr Scholtz at Moranbah Medical Clinic. Dr Scholtz's record of the consultation in its entirety is at page 1328 and records:

“Present today concerned about pain - mostly left flank radiating to groin and thigh, but at times also pain in the right side radiating to front. CT confirm stones L and R. Urine show blood+. DX Renal calculi and pain. Plan refer to Dr Bandi to consider further management. Counsel explain at length. Script Written - Arthraxen (Capsules) 25mg.”

131. [131]
     Dr Scholtz was called and cross-examined and frankly conceded he has no independent recollection of the consultation. Dr Scholtz could do little but rely upon his notes, explain his methodology of recording all relevant information and all important examination findings. Critically, what is absent from Dr Scholtz's note is any suggestion of a complaint of or any finding of an allergic reaction or a burning or tingling or altered sensation in the skin.
132. [132]
     Given Mrs Filmalter’s history, I find it highly likely that had Mrs Filmalter been suffering from any problems with her skin on 11 or 12 February 2014, then she would have told Dr Scholtz of that symptom and Dr Scholtz would have recorded it in his notes. The fact that such recordings are absent leads me to conclude that Mrs Filmalter did not make a complaint of any problems with her skin or burning of her skin on 11 and 12 February 2014 as she was not having those symptoms. Whilst Mrs Filmalter did return to work on 11 and 12 February 2014 and felt unwell, I do not accept that she was having difficulties with her skin or any symptoms of allergic reaction on 11 and 12 February 2014.
133. [133]
     In paragraph 52 of Exhibit 2, the quantum statement, Mrs Filmalter asserts that she did tell Dr Scholtz that her skin was burning, and it was like hot water being poured upon her, and that she told Dr Scholtz about her attendance at Mackay Base Hospital on 10 February 2014, and she showed him her visible symptoms, which included swelling around her eye, blisters and lumps on her hands and arms. I do not accept Mrs Filmalter's evidence in this regard. I prefer the evidence of Dr Scholtz.
134. [134]
     I do not accept Mrs Filmalter's evidence that she showed Dr Scholtz her swelling, blisters and lumps and redness. According to Mrs Filmalter, the blisters were the size of the tip of her pinkie finger. In my view, this could not have been missed by any medical practitioner if that had been reported. Mrs Filmalter complained of swelling to her eye and the side of her neck, which again could not have been missed. It would have been obvious to an assessing general practitioner if there was swelling to the right side of the right eye and right side of the face.
135. [135]
     According to Mr Filmalter, he stayed with his wife on Monday 10 and Tuesday 11 February 2014 before returning to the mines for work on Wednesday 12 February 2014. Given his seven-day roster, it is apparent that Mr Filmalter remained at his workplace between 12 February 2014 and 19 or 20 February 2014. According to the quantum statement, Mrs Filmalter worked 7.15 hours on Thursday 13 February 2014, 7.15 hours on Friday 14 February 2014. Mrs Filmalter did not work Saturday, 15 February 2014.
136. [136]
     According to paragraph 54 of her quantum statement, it was on Sunday, 16 February 2014 that Mrs Filmalter’s symptoms worsened following exposure to sunlight whilst gardening with Mr Filmalter. Mrs Filmalter said that her husband told her that her entire body was glowing red and told her to sit down in the shade and that she developed swelling, hives, shortness of breath, nausea and light-headedness and that her right eye was swelled up so much it closed and the right side of her face and neck were so swollen and so she went inside. I do not accept Mrs Filmalter's evidence in this regard as I find Mr Filmalter was, according to his own evidence, at work on Sunday 16 February 2014. Had Mrs Filmalter developed the severe symptoms as she alleged then she would have sought emergency medical treatment. I do accept Mrs Filmalter's evidence that she had developed some minor symptoms of hives on Sunday 16 February 2014, but not as a result of gardening with the husband.
137. [137]
     According to her quantum statement, Mrs Filmalter attended her work on Monday 17 February 2014 and lasted for only two hours because she had a lot of swelling and she had developed blisters and lumps, swelling and redness on her hands, eyes and legs. Mrs Filmalter asserts^[38] that there was a lot of swelling and that she showed that “lot of swelling” to Dr Scholtz and she showed Dr Scholtz blisters, lumps and redness. She said the blisters were on her hands and were the width of the tip of her pinkie finger, but were also different shapes and sizes with swelling to the right side of Mrs Filmalter's right eye and right side of her neck. Mrs Filmalter's evidence^[39] was that she showed Dr Scholtz lumps on her arms and legs, that Dr Scholtz referred to these as hives.
138. [138]
     Mrs Filmalter described that on 17 February 2014, the sun felt like it was burning her skin and that she was exposed to a great deal of sunlight in the large cabins in which she sat to operate her mining trucks.
139. [139]
     Mrs Filmalter's evidence of what occurred at the consultations on 17 and 19 February 2014 are quite different from Dr Scholtz's evidence. Dr Scholtz had been a general practitioner for 42 years, retiring at the end of 2022. Dr Scholtz's evidence was that patients with complaints of hives or allergies was “a fairly common complaint in general practice.”^[40] Dr Scholtz's practice was to record on his notes his positive findings on examination, but not record negative findings. Dr Scholtz explained:^[41]

“My practice - the fact that there is no mention made of a specific rash says there was no such rash present on that day, that description that the patient gave was not related to a rash on that day.”

140. [140]
     Dr Scholtz's note of 17 February 2014 records that Mrs Filmalter was:

“[D]eveloping a urticaria since taking norfloxacin 10 days ago, had what sounds like angio-edema in RSA 10 years ago, did not take antibiotics since that episode. Unsure which antibiotic. Now fluctuating hives in face and neck. Plan - Explain condition and management and reassure. Use Phenergan and review in 2D. Script written Phenergan tablets 25mg and a medical certificate was provided.”

141. [141]
     I accept Dr Scholtz's note of 17 February 2014 is a summary of the salient features of the consultation, and I accept Dr Scholtz's evidence that if he had observed a rash or red blotches or anything specific, he would have expressly noted that, which he did not. I therefore do not accept that Mrs Filmalter showed Dr Scholtz any rash or blotches or any other physical signs in the consultation of 17 February 2014, but did, as the note describes, report that she had been developing hives since taking norfloxacin 10 days ago, and that the hives were now fluctuating on her face and neck.
142. [142]
     As Dr Scholtz had provided a medical certificate for Mrs Filmalter not to work, Mrs Filmalter did not work on 18, 19, 20 or 21 February 2014. In short, Mrs Filmalter had that week off. During that week, on 19 February 2014, Dr Scholtz had a follow-up consultation with Mrs Filmalter. Dr Scholtz has noted on 19 February 2014:

"Her hives is settling. Uses Zyrtec half PRN. Listening to history she has muscle cramps back and abdomen probably SALFT, calcium or magnesium deficiency. Does not fit with renal colic. Advice -supplement. Reassure. Mention TC of six. Lose weight/diet. Review in 10D if not settle."

Dr Scholtz's evidence^[42] was that Ms Filmalter’s hives did not concern him as an issue. This is consistent with Dr Scholtz's notes of the hives settling, with the major part of the entry relating to back and abdominal pain.

143. [143]
     In paragraph 59 of Exhibit 2, Mrs Filmalter deposed to attending on Dr Scholtz on 19 February 2014 as she was swollen, had blisters and her body felt like she was burning. I do not accept Mrs Filmalter's evidence in this regard, as it is inconsistent with Dr Scholtz's note of 19 February 2014 that Mrs Filmalter's hives were settling.
144. [144]
     In the following week from Monday 24 February 2014 until Friday 28 February 2014, Mrs Filmalter worked a minimum of seven hours per day driving large mine dump trucks and, according to her own evidence, being highly exposed to the sun. On Wednesday 26 February 2014, Mrs Filmalter attended upon Dr Swenson at 5:27 pm. Dr Swenson's note records:

“Drug reaction, photosensitive reactive - if gets too hot or in sun, skin tingles, pain to her face when in sun, swelling to face getting better. Atopy - prev asthma, eczema and hay fever. Plan ?BPD. To use - Claratyne one a day. Sunscreen 50+ to face. Ventolin as required.”

145. [145]
     It's important to record that Dr Swenson's note of 26 February 2014 is the first recorded complaint to a medical practitioner by Mrs Filmalter of suffering from any type of photosensitive reaction. That complaint is recorded 15 days after the ingestion of the two tablets of Norfloxacin on Sunday, 9 February 2014. Although the entry of 26 February 2014 is the first record by a medical practitioner of Mrs Filmalter suffering from a photosensitive reaction, I consider it likely that the photosensitive symptoms commenced some time after the consultation on 19 February 2014 and before the consultation on 26 February 2014. Given that Mrs Filmalter was off work on Thursday 20 and Friday 21 February 2014, I consider that it is highly likely and find that the photosensitive symptoms commenced on Sunday 23 February 2014.
146. [146]
     It is to be recalled that according to Mr Filmalter, he returned to his work at the mines between Wednesday 12 February 2014 and either 19 or 20 February 2014. As discussed above, I do not accept the contents of paragraph 54 of Mrs Filmalter's quantum statement that she suffered quite extreme symptoms whilst gardening with her husband on Sunday 16 February 2014 as Mr Filmalter was then away at his place of work. I do consider it more likely than not that Mr and Mrs Filmalter were gardening on the following Sunday 23 February 2014, when Mrs Filmalter was exposed to sun and did develop some swelling or hives consistent with Mr Filmalter's evidence.^[43]
147. [147]
     What, of course, is most perplexing is that if the symptoms were as extreme as described by both Mr and Mrs Filmalter, that it would have been viewed as a severe allergic reaction requiring immediate medical care. That did not occur, but rather there was the consultation with Dr Swenson some three days later on Wednesday, 26 February 2014. I find that Mrs Filmalter suffered from a mild form of allergic reaction in the nature of hives from exposure to sun whilst gardening on or about Sunday, 23 February 2014, and that was the first time that Mrs Filmalter had suffered from any arguable type of photophobic symptom. I find that the symptoms were quite minimal.
148. [148]
     Mrs Filmalter did return to work and worked for seven hours or more on Monday 24, Tuesday 25, and Wednesday 26 February 2014. In my view, this is consistent with Dr Swenson's note of 26 February 2014 with the report of symptoms getting better with no observations of any photosensitive or other symptoms or any rash or any other sign of any allergic or photosensitive symptoms or any rash or other sign of any allergic or photosensitive reaction. I find as a fact that it was on Sunday, 23 February 2014, that is, 14 days after the ingestion of the two tablets of Norfloxacin, that Mrs Filmalter first believed that she suffered from any type of photosensitive symptom.
149. [149]
     According to Mrs Filmalter's quantum statement, she returned to work on 27 and 28 February 2014, working 7.15 hours each day. Mrs Filmalter had the following Monday 3 March and Tuesday 4 March off work. Mrs Filmalter then returned to work, working between 7 and 7.5 hours on 5, 6 and 7 March 2014. The following week commencing 10 March 2014, Mrs Filmalter finished her training and was supposed to work 12.5 hours every day. On 10 March 2014, however, it had rained and the circuit was too wet to operate trucks and so there was no work. On 11 and 12 March 2014, Mrs Filmalter worked 12.5 hour shifts.
150. [150]
     Mrs Filmalter did not consult any practitioner at Moranbah Medical Centre sub sequent to the consultation with Dr Swenson on 26 February 2014.
151. [151]
     Mrs Filmalter sought treatment from a GP in Mackay, Dr Botha, as he had an interest in allergies. Mrs Filmalter attended Dr Botha on 3 March 2014. On the consultation on 4 March 2014, Dr Botha did record an examination finding of “mild swelling left cheek/side of face. Rest of the examination is normal.” Dr Botha's advice was to avoid antibiotics, take Zyrtec and avoid sun and use sunblock and sunglasses. That advice and strategy would not appear to be different from the advice and strategy adopted by Dr Swenson on 26 February 2014 and is suggestive of a minor medical issue.
152. [152]
     The detailed records of Dr Botha's consultations of 3 and 4 March 2014 at pages 1397 and 1398 are quite revealing. On Mrs Filmalter's first consultation with Dr Botha on 3 March 2014, Dr Botha records the prior medical history of Mrs Filmalter being unsure if she had an antibiotic reaction at the age of 19 or was suffering from foot and mouth at age 19. The medical history also records “At about 30, she had another antibiotic reaction needed ICU admission for one week. Name of antibiotic not known.”
153. [153]
     As discussed above, Dr Botha recorded Mrs Filmalter as being very distressed and felt the doctors were not listening to her. Elements of a histrionic presentation were recorded in Dr Botha's notes. Furthermore, as discussed above, Mrs Filmalter was admitted to the intensive care unit for one day at Entabeni, not for one week.
154. [154]
     Dr Botha's notes on 3 March 2014 have, what seems on its face, a contradictory history as follows:

“Seen with kidney stones in Maroonbah [sic], blood in urine, treated with norfloxacin 3 weeks ago. Sunsequently [sic] has developed swelling of face, hand and feet last several days. General rash if she goes into the sun. Condition has persisted for 3 weeks. Photophobic. She says she gets lesions under her eyelids...”

155. [155]
     Given Dr Scholtz's observations on 12 February 2014, the history provided by Ms Filmalter of a rash occurring if Mrs Filmalter goes into the sun, it cannot be accepted nor was it accepted to say that the condition has persisted for three weeks. As recorded by Dr Botha, the swelling of the face, hands and feet in the last several days is consistent with an increase of symptoms on either Saturday 22 February 2014 or Sunday 23 February 2014.
156. [156]
     The notes of Dr Botha on 4 March 2014 are most revealing. Relevantly, it records:

“Seen by GP in Moranbah for anal lump and constipation abdominal pains three weeks ago. Tests showed picked up haematuria. CT scan showed multiple renal calculi. Took painkillers - Panadeine forte one tablet with a laxative. Two days later developed fevers and nausea. Was given norfloxacin. She says she had a mild skin reaction after the first dose, ‘prickling feeling in her skin’. After second dose she developed small lumps on her skin ‘goosebumps’. Nil urticaria. Nil angioedema. She stopped the norfloxacin.”

She felt fine for four days until mowing the lawn, when she developed a red face and swelling of her feet and hands. Developed urticaria over her arms on different areas. Also developed facial swelling that lasted days. Left eye closed up. Then developed light sensitivity ... Developed small nodules on the palms when she showers. They resolve after 15 minutes. Rest of her body was not affected this morning. Experienced some throat swelling with difficulty swallowing. It resolved by itself. No wheezing or shortness of breath.”

[my underlining]

157. [157]
     In my view, the history taken by Dr Botha is extremely important as it records that even after taking Panadeine forte as prescribed by Dr Swenson on 6 February 2014 “two days later developed fevers and nausea”. The phrase "two days later fevers and nausea" shows that despite the paracetamol and codeine, as Dr Swenson suggested, Mrs Filmalter's condition worsened with fevers and nausea, again highly suggestive of an infection. This is also confirmatory of Dr Swenson's evidence of the telephone conversation of Saturday, 8 February 2014, where Dr Swenson recorded that Mrs Filmalter was still quite nauseous despite the Panadeine forte.
158. [158]
     The history “She felt fine for four days until mowing the lawn when she developed red face and swelling” is also important. I do not consider the four days is accurate, but it is consistent with the history as described above, of mowing or gardening being performed by Mrs Filmalter with Mr Filmalter on or about Sunday 23 February 2014. With the initial development of red face and swelling, face swelling and hives and then most importantly, the subsequent development of light sensitivity. It seems to me from the history that the complaint of light sensitivity first occurs on or after 23 February 2014.
159. [159]
     As discussed above, after the consultations with Dr Botha on 3 and 4 March 2014, Mrs Filmalter returned to work for 5, 6 and 7 March 2014, working between 7 and 7.5 hours, then worked 12.5 hour shifts on 11 and 12 March 2014. On 13 March 2014, Mrs Filmalter only worked five hours and finished early as she was unwell.
160. [160]
     The only other relevant entry in Dr Botha's records is the entry of 16 July 2014, where Dr Botha records that he had organised a Skype session with the specialist Dr Kennedy, however, Mrs Filmalter walked out halfway through the session stating the light from the computer was too bright.
161. [161]
     Mrs Filmalter’s evidence is that it is not only sunlight and light from computers which causes her to suffer from some type of allergic reaction, but light or radiation from mobile phones, iPads, televisions and even microwave ovens have the same effect on her. A medical note at page 1791 records Mrs Filmalter using her mobile phone at a hospital. Mrs Filmalter’s attendance, on occasion, at a restaurant and playing poker machines is also difficult to reconcile with an extreme adverse reaction to light.
162. [162]
     Mrs Filmalter was taken by ambulance to the Mackay Base Hospital on 27 March 2014. It appears Mrs Filmalter was promptly transferred from the emergency department to a ward where there was a good deal of drama. According to the progress notes (pages 1785 and 1786) Mrs Filmalter was placed into a shared room and became upset because she was promised her own room, which the nursing staff advised was not available. The notes record Mrs Filmalter as being angry, agitated and threatening staff that “I will sue you” and to another nurse “I am going to sue that nurse for not giving me a single room and asking me to get in the bed.”
163. [163]
     In the neat handwriting of a triage nurse, Mrs Filmalter’s vital signs were recorded as were her history of allergy as “penicillin → blister sulphur ?antibiotic” (Page 1713).
164. [164]
     In the less neat handwriting of Dr Mooney on page 1714, the history of allergies is recorded as “penicillin, sulphur, Nacene”.
165. [165]
     On behalf of Mrs Filmalter, it is submitted that the nurse is note is consistent with Mrs Filmalter telling medical practitioners that she had an allergy to an unknown antibiotic. While this interpretation is possible, I do not accept that interpretation as it is just as likely several other interpretations, including that the triage nurse was unsure that sulphur was an antibiotic. It appears the nursing note is more consistent with the interpretation that Mrs Filmalter advised the triage nurse that she was allergic to two types of antibiotic those that are penicillin based and those that are sulphur based. That is consistent with Dr Swenson’s recorded history of allergy taken on 6 February 2014.
166. [166]
     Furthermore, Dr Mooney’s recording of allergies at the same time as penicillin, sulphur and niacin strongly suggests that Mrs Filmalter did not say that she was allergic to some type of unknown antibiotic, as that would no doubt have been included in Dr Mooney’s records. Dr Mooney, it would seem, took detailed notes, and I conclude that Mrs Filmalter did not say to the triage nurse, nor to Dr Mooney, that she had an allergy to some unknown antibiotic, but the contrary that she had allergies to penicillin and sulphur based antibiotics and also niacin. As discussed at [126] Mrs Filmalter gave a different history to Dr Marden and nurse Daniel on 9 February 2014. I conclude that Mrs Filmalter is not consistent in her reports of her past allergies.
167. [167]
     On 27 March 2014 at 2:00pm, the notes record Mrs Filmalter did not have any urticaria, no rashes and did not have any blisters. On pages 1781-1783, there is, however, recording of a mild macular rash on Mrs Filmalter’s arms and face.
168. [168]
     On the second day of admission, 28 March 2014, and with Mrs Filmalter’s consent, the curtains and blinds in Mrs Filmalter’s room were opened for 30 minutes to see if Mrs Filmalter would break out into a rash or blister, and in that case, the plan of the hospital was to take a biopsy. After exposure to sunlight Mrs Filmalter complained of her face being hot and she felt that she was swollen and she claimed she had fine dots on her arms. Mrs Filmalter was examined by Dr West with no biopsy being taken as, I infer, there was nothing seen to be biopsied. The notes record after 30 minutes the blinds and curtains were closed again.
169. [169]
     On 28 March 2014, nursing staff noted that Mrs Filmalter was talking on her mobile phone and did not have any reaction to light. On 29 March 2014, no rashes were observed. On 30 March 2014 at 1:00pm, the notes record that Mrs Filmalter was continuing to complain of white dots on her skin when exposed to sun. The note records “No new noticeable rashes.”
170. [170]
     On 31 March 2015 at 9:50am, Mrs Filmalter complained that she had been subjected to too much light and felt burning on her face. The notes record on observation that Mrs Filmalter was stable, she was afebrile, there was no urticaria when exposed to sunlight and there was “?mala flush”. The detailed discharge summary of the Mackay Hospital does not record any diagnosis. 

Unreliable Memory

171. [171]
     Dr Brona O'Dowd, clinical neuropsychologist, administered a series of detailed neuropsychological tests to Mrs Filmalter on 24 and 25 February 2020. Mrs Filmalter was recorded as having multiple cognitive deficits, but in particular the report records that Mrs Filmalter was angry towards past professionals and “presented as a determined woman who had perfectionistic tendencies and was intolerant of errors”.^[44]
172. [172]
     An outstanding feature of the multiple psychometric tests is that Mrs Filmalter had declining cognitive functioning, likely associated with her cerebrovascular accidents, (page 408) and very significant problems with her memory. At page 409, Dr O'Dowd records in respect of memory:

“Mrs Filmalter reported experiencing significant everyday memory problems (such as forgetting details in conversations and what she reads) such that she now writes everything down. Under the present structured testing conditions, there was objective evidence of moderate to severe impairments in both her verbal and visuospatial memory.”

173. [173]
     On page 413 it is recorded the test results showed in respect of Mrs Filmalter’s auditory attention and working memory that she had varying scores from as low as borderline moderate deficit up to above average on a digit span test.
174. [174]
     With respect to new learning and memory, the various psychometric tests showed Mrs Filmalter had scores between borderline moderate deficit and up to average from extremely low and severe deficit, particularly on delayed free recall. On the WMS-IV Mrs Filmalter scored an extremely low severe deficit on delayed memory.
175. [175]
     I conclude that Mr Fillmore has a poor memory generally and therefore where her evidence conflicts with Dr Swenson’s (apart from the issue of Mr Filmalter having been present during part of the conversation on Saturday 8 February 2014), I accept Dr Swenson’s evidence in preference to Mrs Filmalter’s evidence.

Expert Evidence

General Practitioner Expert Evidence

176. [176]
     Two experienced general practitioners were called to give expert evidence as to the appropriate standard of medical care required of a general practitioner in Dr Swenson’s position. Dr James Lynch was called by the plaintiff and has provided reports dated 20 May 2016, 15 June 2016, and 12 March 2021. Dr Ian Dickinson was called by the defendant. Dr Dickinson has provided reports dated 13 July 2020 and 24 April 2021. In addition, there is the conclave report of Dr Lynch and Dr Ian Dickinson dated 15 September 2023 and a memorandum of a conversation with Dr Lynch dated 29 August 2024.
177. [177]
     On 31 July 2023, a conclave between Dr Lynch and Dr Dickinson occurred, which was facilitated by the Honourable Margaret White AO. As set out in the preliminary observation, and like most of the other experts discussed below, the expert general practitioner experts remained committed to the views as set out in their respective reports:

“…[B]ecause they disagreed as to what the preliminary pathology tests, and clinical and reported symptoms suggested. Dr Lynch opined there was no evidence, compelling or otherwise, to indicate the plaintiff was suffering from a urinary tract infection (UTI). While, Dr Dickinson took the view that both the preliminary pathology and the clinical and reported symptoms supported a tentative diagnosis of UTI.”

178. [178]
     As the Honourable Margaret White AO set out in her preliminary observation in respect of Doctors Lynch and Dickinson, “their responses to the question posed by the parties flowed from this fundamental disagreement.”
179. [179]
     The resolution of the identified fundamental disagreement is, in my view, critical to the determination of which expert's opinion ought to be accepted. As both Dr Lynch and Dr Dickinson are extremely experienced, I do not prefer the evidence of one expert over the other on the basis of experience.
180. [180]
     Dr Lynch, on page three of his first report, commented that “if an infection was proven then antibiotics may or may not be required”. On page four of his first report, Dr Dickinson opined:

“If infection in the MSU was not proven, she was therefore a patient who did not need antibiotic therapy urgently. This gave Dr Swenson the opportunity to find out the details of the previous antibiotic anaphylaxis from South Africa, and then treat accordingly.”

181. [181]
     In his Supplementary Report of 15 June 2016, on page two, Dr Lynch commented:

“I note that I have now been provided with a copy of the MSU report of a test ordered by Dr Margaret Swenson on 6 February 2014. I note the MSU report that you have provided does not reveal any evidence of red blood cells (RBC) in excess of the normal range. And I further note that the result did not reveal any urinary tract infection.”

182. [182]
     In his report of 12 March 2021, on page two, Dr Lynch repeated that “an MSU forwarded to Dr Swenson revealed neither haematuria nor urinary tract infection". On page three of the report, Dr Lynch commented that “there is nothing in the documentation that you provided that in fact, the urine sample provided by Ms Filmalter was a proper MSU.” (midstream sample of urine). Dr Lynch opined that the proper MSU technique ensures that false and abnormal results were not provided by poor technique.
183. [183]
     The critical difference between the general practitioner experts, as set out on page five of Dr Lynch's report of 12 March 2021 “…Dr Dickinson said that a preliminary report showed elevated urine, small pH (of no significance), a trace of protein and elevated numbers of leukocytes (plus cells). This was suggestive of a UTI.”
184. [184]
     Dr Lynch's comment upon that was that the urine sample was not a proper MSU but was contaminated, and “that confirms my evaluation that the urine sample (not an MSU) as being virtually worthless.”
185. [185]
     In his oral evidence, Dr Lynch strongly advocated the position that Dr Swenson ought to have known this because the pathology results with the positive finding of squamous epidermis or skin cells shows that the sample was not an MSU and therefore could not be relied upon at all. Dr Lynch did not explain why that was so. Dr Dickinson provided a contrary reasoned opinion,^[45] and I accept Dr Dickinson’s reasoned opinion on the issue.
186. [186]
     Dr Lynch made it plain in his evidence given in cross-examination, that a critical part of his reasoning, was the assumption that the positive finding on the pathology of squamous epithelial cells showed that the urine sample was not an MSU, and therefore any findings of the urine sample were completely unreliable. In Dr Lynch's thesis, this conclusion was fundamental, and rendered that Dr Dickinson's opinion, that the pathology report indicated a UTI was incorrect. Dr Lynch was adamant that Dr Swenson ought to have been aware of the positive findings of squamous epidermis cells prior to prescribing antibiotics on Saturday 8 February 2014 and so should have not prescribed the norfloxacin.
187. [187]
     The error in Dr Lynch’s train of logic was pointed out to him in cross-examination, namely that he had assumed that Dr Swenson had a pathology report with positive findings on squamous epithelial cells, when in fact Dr Swenson did not, as the report with that finding was not made until 12 February 2014, i.e. It was absent on the original pathology as seen on page 1336.
188. [188]
     Dr Lynch attempted to overcome the error in his logic by pointing to the absence of a number in the microscopy result by suggesting a different train of logic.^[46] Dr Lynch opined that an absence of a number on the microscopy result indicating the level of squamous epithelial cells was so important that a competent general practitioner would have telephoned the pathologist and demanded that the pathologist provide the results for the microscopy. According to Dr Lynch, had Dr Swenson phoned the pathologist, Dr Swenson would have known of the presence of the squamous epithelial cells and then would have known that the report which was requested as an MSU report and reported as an MSU report was in fact not an MSU report. Dr Lynch then contradicted his own opinion by suggesting the urine sample was irrelevant.^[47] After criticising Dr Swenson for not telephoning the pathology laboratory urgently to obtain the microscopy result, Dr Lynch contradicted himself again by opining that a urine sample ought not be ordered at all.^[48]
189. [189]
     In my view, a communication with the pathology laboratory concerning the absence of a reported metric on a blood and urine test is a different procedure to the telephone request of a pathologist, set out in paragraph 2.4 of the Joint General Practitioner Expert Report (page 792) which relates to a telephone call to a laboratory within 24 hours to ascertain whether there were early signs of a culture growth, given that it may take two days for a culture to grow to determine if an infection is present.
190. [190]
     Dr Lynch’s newly-created (but subsequently discarded) thesis that general practitioners ought to telephone pathologists as a matter of course if there is an absence of reporting of any matter on a pathology report had not appeared in any of Dr Lynch’s several reports, as it was never a part of the plaintiff’s case. Dr Lynch had in fact, never undertaken the process that he had recommended of telephoning a pathologist if there was an absence of any matter in a pathology report. Of this new procedure, Dr Dickinson, who had been a general practitioner for 34 years said that in his 34 years as a general practitioner he had never picked up the phone and telephoned a pathologist to ask the number of squamous epithelial cells.^[49] Further, in particular where the number of squamous epithelial cells are not reported at all, Dr Dickinson, an experienced general practitioner, said he would assume that as the results were undertaken by the MSU procedure, that the result would be 0, and that is why the figure was left blank. I accept Dr Dickson’s consistent logical opinion and evidence in this regard.
191. [191]
     In my view, there was a vast difference between the approach taken by Dr Dickinson and Dr Lynch toward answering questions in cross-examination. Dr Dickinson provided well-reasoned and consistent answers to questions and frequently made concessions. An important example is at T6-99, when cross-examined about the culture result (page 1332) reported 12 February 2014 showing no pathogens isolated in the culture and elevated squamous epithelial cells, Dr Dickinson readily conceded that result shows it was more likely than not that there was not an infection and on the basis of that result, he would not have prescribed antibiotics for a patient. That of course does not harm the defence case as the culture result was not reported until approximately 1:00pm on 12 February 2014. That important information, therefore, was not within Dr Swenson’s means of knowledge at the time of prescription of the norfloxacin on 9 February 2014.
192. [192]
     In contrast, Dr Lynch made few concessions. An important concession Dr Lynch did make at T4-34 was that if Dr Swenson had radiology showing kidney stones at the time of prescription of the antibiotic, then that was relevant as Dr Lynch considered that kidney stones were a known risk factor causing obstruction in the urinary tract which in turn caused a risk factor for urinary tract infections. Although Dr Lynch did not expressly say, it appears from his evidence at T4-33 that Dr Lynch had assumed that Dr Swenson did not have any radiology back showing there were renal calculi at the time of the prescription of the antibiotics on 9 February 2014. Again, it seems Dr Lynch has based his opinion on the wrong assumptions.
193. [193]
     There are several other matters in Dr Lynch’s report which require attention. In his first report of 20 May 2016 (page 92), Dr Lynch opined there was nothing in the medical progress notes that suggested an infection. I consider that is an incorrect analysis as the urine test results reported on 8 February 2014 at 10:26am (page1336) showed the pus cells (leukocytes) reporting abnormally at 30 as well as trace elements of proteins. In addition, as Dr Swenson described, there was the slightly elevated temperature recorded on 6 February 2014 at 37.2 degrees prior to the prescription of Codeine and Paracetamol.
194. [194]
     Furthermore, as set out above, in Mrs Filmalter’s own description of her history taken by Dr Botha on 4 March 2014, Mrs Filmalter’s history is despite taking the Panadeine Forte and Paracetamol, she developed fevers and nausea. The opinion of Dr Lynch, therefore, at page 92, at what it appears a GP would do “in these particular circumstances” is based upon an incorrect assumption as to the accurate history. Therefore I reject that opinion. Also on page 92, Dr Lynch opines that records from overseas hospital and general practitioners can be obtained instantaneously such that Dr Lynch said:

“It is my opinion that Dr Swenson has no obstacle to prevent her from either telephoning, faxing, or emailing the medical institution to which Mrs Filmalter had previously been admitted to obtain the information urgently prior to initiating any antibiotic therapy…”

195. [195]
     I reject this opinion as it is again based upon incorrect assumptions. Dr Swenson was not told the name of the hospital, nor the name of the practice, and therefore had insurmountable obstacles to obtaining the accurate information from South Africa. Even if Dr Swenson had been provided with the accurate names of the Entabeni Hospital and the Bluff Medical Centre, then I reject the opinion that the records could have been obtained instantaneously. Despite Dr Swenson recommending to Mrs Filmalter to obtain her medical records urgently from South Africa on 6 February 2014, that did not occur.
196. [196]
     On Mrs Filmalter’s second attendance on Dr Botha as recorded at page 1397, Dr Botha also advised Mrs Filmalter to get her information from her former general practitioner in South Africa and her discharge summary from her ICU admission. It would appear that advice was acted upon and somewhere between 4 March 2014 and 7 March 2014, Mrs Filmalter did seek her records from the Entabeni Hospital. Exhibit 3 suggests that on 7 March at 4:24pm, Mr or Mrs Filmalter requested the records from Entabeni Hospital, and as Exhibit 3 shows, it would appear that the request for Mrs Filmalter’s file was met promptly by a request from the Entabeni Hospital for identification so that Mrs Filmalter’s request for records could be considered. Exhibit 4 shows despite the request for the records being made on 7 March 2014, the records of the Entabeni Hospital were not sent until 17 days later, on 23 March 2014. I conclude therefore that whilst Dr Lynch may have on some unknown occasion received records from overseas hospital instantly, the likely timeframe for request for records from the Entabeni Hospital was in the vicinity of 17 days.
197. [197]
     Part of the thesis of the reasoning of Dr Lynch at page 92 is that Dr Swenson “ought to not solely rely upon the patient’s memory of the antibiotic” which again, it seems to me, can only be interpreted as Dr Lynch's opinion being that practitioners ought themselves obtain the records from overseas, and the ability to access that information instantaneously, prior to prescribing medication. In the circumstances of this case, as discussed above, concerning the delay in obtaining the records from the Entabeni hospital, I reject that premise or opinion.
198. [198]
     Additionally, on page 92, Dr Lynch has assumed that Mrs Filmalter was not all that ill as she was able to continue working. That is another incorrect assumption. It is to be recalled after working seven hours on 5 February 2014, Mrs Filmalter attended the Moranbah Hospital at 7:15 pm in obvious pain and an inability to sleep beyond four or five hours because of the pain and with blood in her urine. Although Mrs Filmalter did work 7.15 hours on 6 February 2014, she was, as recorded by Dr Swenson, quite unwell such that she was certified unfit to work on 7 February 2014.
199. [199]
     Dr Lynch’s opinion that the actions of Dr Swenson in prescribing Norfloxacin was not consistent with the provision of professional service in a manner at the time of the service provided that was widely accepted by professional opinion as competent medical practice, is in the nature of a bare ipse dixit;^[50] it is completely unreasoned. It is not the only bare ipse dixit in Dr Lynch’s report.
200. [200]
     As to causation Dr Lynch’s entire reasoning is:

“It is my opinion based on my reading, knowledge and experience, that the damage that occurred as a result of the deficiency of Dr Swenson caused Mrs Filmalter to suffer all the symptoms and signs of which she has complained and presently suffers”.

201. [201]
     At page 97 of Dr Lynch's further supplementary report of 15 June 2016, Dr Lynch opined:

“In other words this MSU result ordered by Margaret Swenson on 6 February 2014 did not reveal either haematoma or urinary tract infections. A simple dipstick analysis of urine performed using an in-date stick would, more likely than not, on the balance of probabilities, not have revealed any indication of urinary tract infection. (Nitrate positive or haematuria)”

202. [202]
     As discussed above I reject Dr Lynch's opinion that the urine results of 6 February 2014 did not indicate that Mrs Filmalter was suffering from a urinary tract infection. Furthermore, as is shown on page 1378 and 1379, dipstick tests were undertaken at the Moranbah Hospital, which did show positive results for blood in the urine and leukocytes. The two dipstick tests were taken at 7:01 pm and 9:09 pm at Moranbah Hospital, and although the results are somewhat faded and difficult to read, there are positive results on the second dipstick test.
203. [203]
     In my view, it is an accurate observation that the essential difference between Doctors Lynch and Dickinson is that Dr Lynch’s opinion is fundamentally reliant upon a finding there was no suggestion, compelling or otherwise, that Mrs Filmalter was suffering from a urinary tract infection. As discussed above, this is, in my view, incorrect.
204. [204]
     The conclave report of 31 July 2023 emphasises this and the strong disagreement between doctors Dickinson and Lynch on every issue.
205. [205]
     In the General Practitioners Conclave report, the general practitioners stated their opinions concerning appropriate decision-making in treatment in paragraphs 2.1 and 2.2 as follows:

1. “2.1Dr Dickinson was firmly of the opinion that the CT scan results confirming renal stones and the preliminary urine pathology report being suggestive of a urinary tract infection, the risk was that the plaintiff was suffering from a complicated urinary tract infection, with further risk of progression to urosepsis, septic shock with possibly fatal consequences unless treated immediately, certainly before the full pathology report would be available.
2. 2.2Dr Lynch was firmly of the view that there was zero risk to the plaintiff if not commenced on any treatment on 8 February. The clinical symptoms did not support an infection in the uro/renal area; she had no fever and was unlikely to proceed to sepsis. In the plaintiff's special circumstances of a known allergic reaction to certain drugs—the defendant had noted a history of “won’t take ABs since bad reaction = husband away and scared of reaction”—it was reasonable to wait for complete pathology results”

206. [206]
     As discussed above, Dr Lynch's assumption that Mrs Filmalter did not have a fever is, in my view, incorrect. Mrs Filmalter’s temperature was 37.2 on 6 February 2014. This was consistent with a low-grade fever and, as explained by Dr Swenson, the consumption of paracetamol and Panadeine forte made it likely that any fever was being masked by the medication. Although on 7 February 2014 Dr Swenson conceded that Mrs Filmalter was afebrile, she was still reported as being nauseous on 7 and 8 February 2014. Furthermore, as set out above, Dr Botha obtained a history of both fever and nausea continuing.
207. [207]
     I accept Dr Dickinson's opinion expressed in 3.6 of the conclave note (page 792) that Dr Swenson was entitled to rely on the drugs specifically mentioned by Mrs Filmalter as those to which Mrs Filmalter was allergic, in circumstances when the South African records could not be obtained in a timely fashion, and Mrs Filmalter did have signs suggestive of a urinary tract infection, such that it was reasonable to prescribe the different class of antibiotic.
208. [208]
     I accept Dr Dickinson's opinion expressed in 5.2 of the conclave report. The information from South Africa was not readily accessible in the short term, and the risk of serious consequences flowing from an untreated, complicated urinary tract infection was too great not to commence antibiotic treatment promptly.
209. [209]
     At T4-33 lines 40 to 41, Dr Lynch confirmed that he based his opinion on the basis that the results of the CT scan were not available until after the prescription of the norfloxacin. That assumption is wrong. Dr Lynch did make the concession^[51] that on the assumption that the pathology results was a positive MSU result (and not a contaminated sample as Dr Lynch had presumed) then the patient would be at risk of developing urosepsis. Whilst accepting that, Dr Lynch described that as a rare complication if that did occur.
210. [210]
     After confirming again that he had provided his opinion on the basis that Dr Swenson was positively aware that she had a contaminated result^[52] Dr Lynch was asked to assume the true position that Dr Swenson did not have any pathology suggesting that the result was contaminated, but rather had a MSU pathology result showing elevated leukocytes. Dr Lynch stated his opinion that there was zero risk of an infection. When asked to explain why Dr Lynch reasoned:^[53]

“She had no symptoms, no examination, and a urine en passant which revealed contamination.

Question: Sorry—and a urine result that revealed contamination?

Answer: Yeah. Uh or—include or exclude that. I do not care.

Okay. So the pathology result that would—that shows positive indications of there being an infection results in a conclusion by you that was zero risk of that progressing to a urinary tract?

Answer: That's not correct. There wasn’t evidence of infection. There were no symptoms of infection either, and no signs of infection on either examination either. None of that recorded.”

211. [211]
     The above passage is important, as it shows that Dr Lynch first attempts to justify his reasoning on the basis of the false premise that Dr Swenson knew that the urine test was contaminated when she did not. Then Dr Lynch changed his tack and said that the principal reason underlying all of his reasoning that Dr Swenson ought to have known there was a contaminated sample be included or excluded, and that he did not care. The cross-examination drove Dr Lynch to the absurd proposition that although there were pathology results showing positive indications of infection and symptoms consistent with an infection, there was zero risk of an infection. Dr Lynch also based his conclusion on the factually incorrect premise that Mrs Filmalter had no symptoms of infection.
212. [212]
     In my view, Dr Lynch's opinions are based upon the wrong assumptions and are not logical. When asked to explain the logical inconsistency, Dr Lynch^[54] argued that the absence of bacteria on the microscopy proved his assessment was correct. As discussed above, however, the microscopy was not available until 12 February 2014, which in my view is clearly hindsight bias.
213. [213]
     Question 7(c) of the Conclave report sought the general practitioners’ opinions as to the efficacy of Dr Swenson's advice in taking the norfloxacin to do so in the presence of Mrs Filmalter's husband and outside the Mackay Base Hospital in case Mrs Filmalter had a reaction. Dr Dickinson's answer 7.3.1 was “Dr Lynch was incredulous that the presence of the plaintiff's husband could be an ameliorating or reassuring factor to a competent general practitioner exercising care and skill…”
214. [214]
     When Dr Lynch was referred to his answer 7.3.1, Dr Lynch burst out laughing and could not contain his laughter, such that court was adjourned to enable Dr Lynch to compose himself. The laughing was most inappropriate. It was, in my view, a very personal attack upon Dr Swenson which was most unwarranted. That is not the hallmark of an independent witness. Dr Lynch's response of uncontrollable laughter was also most unusual, but may have stemmed, as senior counsel for the plaintiff said, from an embarrassment as to the terms of the answer and the attack upon Dr Swenson. Although that was an inappropriate incident during the trial, it is not a matter, in my view, that is in any way of assistance in determining the preference of Dr Dickinson over Dr Lynch.
215. [215]
     As discussed above, it seems to me that Dr Dickinson's opinions ought to be accepted over Dr Lynch's opinions, essentially because Dr Dickinson's opinions are logical and reasoned and based upon the correct assumptions. Dr Lynch's opinions are not based upon the correct assumptions, are not well-reasoned and as demonstrated above, Dr Lynch has used hindsight bias and circular reasoning. Dr Dickinson gave his evidence in a careful, logical and properly reasoned manner. He made multiple concessions, gave every appearance of being a completely independent and unbiased expert. I accept his opinions.

Breach of Duty of Care and s 22 Standard of Care of Professionals

216. [216]
     Section 22 of the Civil Liability Act 2003 (Qld) (‘CLA’) provides:

1. “22Standard of care for professionals

1. (1)
   A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.
2. (2)
   However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.
3. (3)
   The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.
4. (4)
   Peer professional opinion does not have to be universally accepted to be considered widely accepted.
5. (5)
   This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.”

217. [217]
     The parties have made differing submissions upon the effect of s 22 of the CLA with the plaintiff submitting that s 22 either modifies the relevant standard of care or provides a defence to a breach of duty.^[55] The defence position is that the current state of law in Queensland is for s 22 of the CLA to be considered as a defence to a finding of breach of duty.^[56]
218. [218]
     This is obiter dicta and comment which refers to s 22 (or in NSW analogue, s 5O Civil Liability Act 2002 (NSW)) as providing a defence or an excuse.^[57] However as the Victorian^[58] and New South Wales authorities show,^[59] s 22 alters the standard of care in cases of professional negligence. Section 22 alters the standard of care when s 22(5) is not engaged and when the elements of s 22(1) are satisfied.
219. [219]
     In Dean v Pope^[60] Brereton JA with whom Meagher and White JJA agreed, said:

1. “[273]
   The facts summarised above are more fully recounted in the judgment of Ward P, which I have had the benefit of reading in draft. As her Honour demonstrates, this appeal can be decided without determining the questions pertaining to the “defence” under Civil Liability Act, s 5O, for the consideration of which an enlarged bench was constituted. However, as Basten JA explained in Sparks v Hobson, s 5O once invoked effectively provides the applicable standard of care:

1. [17]
   Despite the common acceptance of the provision as a “defence”, that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to “competent professional practice” in the terms of s 5O(1). The heading of the section (“Standard of care for professionals”) indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.
2. [18]
   Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. …

1. [274]
   In my view, therefore, it is preferable to consider the challenge to the s 5O defence first. Such an approach is reinforced by the circumstance that the s 5O defence was dispositive of the case at trial.”

220. [220]
     In my respectful view, the approach of Basten JA as set out above in Sparks v Hobson is correct. The first issue is to determine if s 22(5) is engaged.
221. [221]
     In order to determine if s 22(5) is engaged, it is helpful to have in mind breaches of duty of care which give rise to the liability alleged by Mrs Filmalter against Dr Swenson. That is set out in paragraph 17 of the second amended statement of claim (‘SASOC’) as follows:

1. “17.February 2014, a competent and skilled General Practitioner, exercising reasonable care and skill to avoid a foreseeable risk of injury to the plaintiff that was not insignificant and exercising due care and skill, would have:

1. (a)
   Investigated the history of the plaintiff’s allergic reaction in 2007 in South Africa and identified the drug that was prescribed to her;
2. (b)
   Contacted the relevant hospital in South Africa and asked to be forwarded a copy of the medical record so that the precise drug that caused the allergic reaction in South Africa could be identified;
3. (c)
   Advised the plaintiff that it would be inappropriate to prescribe an antibiotic until the identity of the drug that had caused the allergic reaction in South Africa was established and delayed the prescription of antibiotics until the identity of that drug had been established or the UTI had been confirmed or established;
4. (d)
   Requested that the plaintiff undertake further investigations by contacting the hospital to precisely identify the drug to which the plaintiff had suffered the allergic reaction.”

222. [222]
     The s 22(5) issue is complicated by the conjunctive way in which paragraph 17(c) of the SASOC is drafted. Mrs Filmalter’s case is set out in paragraph 17(c) is that Dr Swenson failed to advise her that it would be inappropriate to prescribe any antibiotic until the identity of the drug which caused her reaction in South Africa was established. This arguably engages s 22(5), however with the further use of the conjunctive “and” requiring of a reasonable professional in Dr Swenson’s shoes to in fact delay the prescription of any antibiotic until the identity of that drug had been established, or the UTI had been confirmed or established, directs paragraph 17(c) to an action of medical professional and not “advice” as to a “risk of harm”.
223. [223]
     In respect of paragraph 17(c) of the SASOC it seems to me that s 22(5) CLA is not engaged as the failure to advise as set out in paragraph 17(c) does not relate to provision of advice of a risk of a harm to Mrs Filmalter per se. In the present case, Mrs Filmalter was acutely aware, and very scared of the prospect of having a further allergic reaction to the prescription of any antibiotic. As Mrs Filmalter was acutely aware of the risk of harm to her person, it seems to me that s 22(5) is not engaged in respect of paragraph 17(c) of the SASOC.
224. [224]
     I would similarly conclude in respect of paragraph 17(d) that the breach of duty of care alleged against Dr Swenson, being the failure to request Mrs Filmalter to undertake further investigations by contacting the hospital to precisely identify the drug which had previously caused her allergic reaction was not a failure to give advice or a warning or information in relation to a risk of harm to the person as again, Mrs Filmalter was acutely aware of that risk. Section 22(5) is designed to protect a patients autonomy to make their own decisions about their own life, described by the majority in Rogers v Whitaker at [487] as “the paramount consideration”.^[61]
225. [225]
     There are often significant problems with the implementation of s 22(1) as set out by J Forrest J in Grinham v Tabro Meats at [186] to [188].^[62] After referring to the reasons of J Forrest J in Ginham, Brereton JA in Dean v Pope said at [316] and [317]: 

1. “[316]
   More recently, in Boxell v Peninsula Health Keogh J adopted the construction which, unconstrained by authority, Simpson JA would have favoured in Sparks:

1. “[30]
   Section 59 of the Act was intended to introduce a modification of the Bolam principle, which was stated by Lord Scarman in Sidaway v Governors of Bethlehem Royal Hospital as follows:

‘‘The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.