In the recent matter of Filmalter v Swenson [2025] QSC 32, the plaintiff, Mrs Sue Filmalter, commenced proceedings against the defendant, Dr Margaret Swenson, alleging for negligence, breach of contract and breach of sections 60 and 61 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth)).
The plaintiff alleged that the defendant inappropriately advised her and treated her with the prescription of the antibiotic Norfloxacin on 8 February 2014. The plaintiff alleged the Norfloxacin has caused an allergic reaction which led to extreme photosensitivity which persisted for over a decade. The plaintiff 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.
The defendant’s case was that she was not negligent in her treatment and advice of the plaintiff, had not breached sections 60 and 61 of the Australian Consumer Law, and that the plaintiff had not suffered from an allergic reaction nor been rendered photosensitive. The defendant also argues that the stroke that the plaintiff suffered in 2017 was not related to the ingestion of two tablets of Norfloxacin on 8 February 2014.
The trial judge reviewed the factual evidence and considered expert evidence by the parties, saying at [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.
When considering the effect of section 22 of the Civil Liability Act 2003 (QLD), the trial judge discussed Dean v Pope (NSWCA) and held that the first issue is to determine if section 22(5) is engaged (at [220]). The trial judge said at [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.
The Court then considered section 22(1) at [226] – [230]:
As to the first element of s 22(1), it is not contentious that Dr Swenson is a professional.
In order to determine whether the second element of s 22(1) is satisfied so as to engage the lower standard of care as set out in s 22, the evidence does not need to identify a specific practice as such, but rather whether there is a way of professional practice which can be identified as being a widely accepted (as competent professional practice at the relevant time) manner of acting (and that seems practical), per Ward P in Dean v Pope at 233. As set out by Ward P at [235] and [236] and Brereton JA at [317] in Dean v Pope, accepting the reasoning of Basten JA and Simpson AJ in Sparkes, it was emphasised that the defendant need not bring evidence of a particular specific or established practice, but rather a consideration made by reference to how an assessment of the circumstances would be undertaken by a knowledgeable and experienced practitioner.
In Grinham J Forrest J at [190] accepted an ‘expert’ general practitioners reliance on attendance at a large number of professional conferences, accreditation processes and surveys as evidentiary basis for a competent wide spread medical practice.
As to the second element, in my view in the present case, there is ample evidence to establish widely accepted practice. The reasoning provided in Dr Dickinson’s opinion (pages 440 to 443) in short was that Dr Swenson was armed with information that was suggestive of a urinary tract infection which may have been a complicated urinary tract infection which was “more likely to progress to urosepsis which was a life threatening condition” so the proper and uncontroversial treatment was to attempt to prevent the major complications of the UTI including fatality by the prescription of a different class of antibiotic. Dr Dickinson provided further reasoning to his opinions at pages 634 to 636 and in the GP conclave report at pages 790 to 796.
At page 442, Dr Dickinson described the approach undertaken by Dr Swenson as “Commonplace in general practice and medicine in general where treatment is started ‘empirically’. That is, to start treatment on the presumption of a particular diagnosis, as to wait may have disastrous results.”
The second and third elements of section 22(1) were satisfied.
The plaintiff’s claim also failed by reference to the Australian Consumer Law sections 60 to 61, as follows:
As acknowledged by Dr Dickinson, when the culture pathology was received on 12 February 2014, the appropriate conclusion was that Mrs Filmalter was not likely to be suffering from an infection, and therefore the prescription of any antibiotics was wrong. That is, with the benefit of the wisdom of hindsight, Dr Swenson was wrong in her prescription of any antibiotic. It seems to me, however, that the time at which judgement ought to be made, at least in a medical negligence case, as to whether the services rendered by a medical practitioner were reasonably fit for the purpose for which they were provided, ought to be at the time when the medical service was provided. As discussed above, as at 8 February 2014 Mrs Filmalter had a probable urinary tract infection which may have progressed with fatal consequences. Prescription therefore of a class of antibiotic differing from those to which Mrs Filmalter had previously suffered from allergic reaction was, in my view, a service which was reasonably fit for the purpose for which it was provided and was a service rendered with due care and skill (at [256]).
There was extensive discussion as to causation, particularly at [295] to [296]:
In my view, Professor Mangoni presented as an honest and non-partisan witness. However, I cannot accept his opinion that the condition suffered by Mrs Filmalter was in fact caused by her ingestion of the norfloxacin, as Professor Mangoni has not based his opinion upon the correct assumptions.
Furthermore, and most importantly, it seems to me the highest that Professor Mangoni’s report rises is that ongoing phototoxic or photoallergic symptoms, which may be classified as a persistent light reactive syndrome, is a very, very, very rare but theoretical possibility from the ingestion of norfloxacin. That does not come close to a satisfaction on the balance of probabilities.
At [412], the Court provided that the plaintiff had multiple risk factors causative of an embolic stroke and that an embolic stroke is statistically far more likely to be the cause.
In relation to quantum, the Court provided as follows from [413] to [417]:
As set out above, I conclude that Mrs Filmalter has shown on the balance of probabilities that she has suffered from a minor allergic reaction to the ingestion of two tablets of norfloxacin on 9 February 2014, but she has not shown, on the balance of probabilities, that the ingestion of those two tablets of norfloxacin caused any type of photosensitive illness, nor her stroke in 2017.
The assessment of quantum, therefore, is restricted to the damages caused by the allergic reaction, which is documented in the records of the Mackay Base Hospital on 10 February 2014. As those records show, it was a fairly minor allergic reaction. As Dr Scholtz’s note of the consultation of 12 February 2014 shows (at page 1328), the allergic reaction had settled prior to Wednesday, 12 February 2014.
It is further important to recall, as noted above, that 95 to 97% of the norfloxacin was removed within 24 hours of the consumption of each tablet such that by presentation to Dr Scholtz on 12 February 2014, there was only a minimal amount of norfloxacin contained within Mrs Filmalter’s body, and by that stage the allergic reaction had resolved.
I am conscious that Mrs Filmalter also attended on Dr Scholtz on 17 and 19 February 2014, complaining of hives which had developed since taking the norfloxacin ten days earlier. However, at the time of the development of hives, there was such an extremely small amount of norfloxacin left within Mrs Filmalter’s body that I conclude it cannot be the cause of any complaint of hives on 17 or 19 February 2014. I again record that Dr Schultz did not in fact see any hives on 17 or 19 February 2014.
Although Mrs Filmalter did not work on Monday 10 February 2014, she returned to work on Tuesday, 11 February 2014. There is no suggestion that Mrs Filmalter suffered a loss of income for 10 February 2014. The damages, therefore, that Mrs Filmalter has proved to be caused by the allergic reaction is limited to two days of relatively minor irritant of allergic reaction. The damages are somewhat nominal and, in my view, ought be quantified as follows:
A. General Damages – Item 162 ISV 2 – $2,720.0
B. Special Damages – Mackay Base Hospital on 9 February 2014 – $703.00
C. Special Damages – Travel on 9 February 2014 – $51.30
D. Interest on Special Damages – s60 Civil Liability Act 2003 – $10.26.
Totalling $3,484.56
Ultimately, on 28 February 2025, the Supreme Court of Queensland ordered as follows:
- Judgment for the defendant against the plaintiff.
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