Bank Place Operations Pty Ltd v La Motte
[2005] VSCA 299
•14 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3716 of 2004
| BANK PLACE OPERATIONS PTY. LTD. | |
| Appellant | |
| v. | |
| CHRISTINA LA MOTTE | Respondent |
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JUDGES: | EAMES and ASHLEY, JJ.A. and HOLLINGWORTH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 August 2005 | |
DATE OF JUDGMENT: | 14 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 299 | |
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Torts – Negligence – Personal injury – Negligence admitted but dispute as to nature and extent of injury suffered thereby – Trial judge accepted evidence from plaintiff’s three expert witnesses in preference to defendant’s expert witness – No appealable error shown – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Ruskin, Q.C. with Ms A.E. Duggan | Hunt & Hunt |
| For the Respondent | Mr R. J. Stanley, Q.C. with Mr A.D. Clements | Rigby Cooke |
EAMES, J.A.:
For the reasons given by Hollingworth, A.J.A., I agree that the appeal should be dismissed.
ASHLEY, J.A.:
I agree, for the reasons given by Hollingworth, A.J.A., that this appeal should be dismissed.
HOLLINGWORTH, A.J.A.:
The respondent, Mrs La Motte, injured her foot when she stepped on a nail which was protruding from between the bathroom tiles at the appellant’s hotel. In proceedings brought by Mrs La Motte in the County Court, the appellant admitted negligence, but disputed the nature and severity of the injury.
On 23 March 2004, after a trial lasting five days, the learned trial judge entered judgment for Mrs La Motte in the sum of $395,000, together with interest and costs. The trial judge accepted the medical evidence called by Mrs La Motte to the effect that, as a result of stepping on the nail, she had developed complex regional pain syndrome type 1. His Honour did not accept that the ongoing pain and disability in her leg was caused by a pre-existing infection with the zoster virus.
The amended notice of appeal challenges the correctness of the trial judge’s reasons for decision. The precise grounds will be discussed shortly, but, in essence, they all assert that the judge should have preferred the appellant’s expert medical witness to Mrs La Motte’s three expert medical witnesses.
The facts
Mrs La Motte lives in Sydney. In September 2000, she came to Melbourne for a holiday. It was the first trip she had taken in a long time, as she had suffered for a number of years from an unfortunate series of medical problems.
In 1989, she injured her left elbow whilst working as a nurse. As a result of this injury, she developed complex regional pain syndrome type 2 in her left arm.
Complex regional pain syndrome (“CRPS”) is also referred to as reflex sympathetic dystrophy. CRPS generally follows some sort of injury or trauma. It is a syndrome in which a patient develops pain that is out of all proportion to what one would expect from such an injury; the pain also extends well beyond the area of the actual injury. There are often associated symptoms including swelling, skin colour changes, sweating, extreme sensitivity, and loss of light touch and pinprick sensations. There are two types of CRPS: type 2 involves damage to an identifiable nerve at the outset, whereas type 1 does not. A person who suffers from one episode of CRPS is more susceptible to suffering another episode in response to a fresh trauma.
Mrs La Motte received ongoing treatment for the CRPS in her left arm, which included the insertion of an intrathecal pump for the release of pain-killing medication. She was also treated for major depression with Zoloft.
Around 1997 she developed chronic myeloid leukaemia, for which she was treated with a bone marrow transplant. This required ongoing treatment with immuno-suppressant drugs, which rendered her more susceptible to opportunistic infections. She was also prone to outbreaks of graft versus host disease, a transplant complication in which immune cells from the donor react against cells of the recipient. One of the symptoms of graft versus host disease can be a type of skin rash, from which she suffered regularly. Mrs La Motte also experienced episodes of breathlessness (dyspnoea), muscle spasms in the lower back and some falls due to weakness from the leukaemia.
Among her many other medical problems, Mrs La Motte has also suffered from asthma, spine fractures, tachycardia and deep vein thrombosis.
A blood test in late 1998 showed the presence of a virus which has a number of variants and was variously (and somewhat confusingly) referred to by the expert witnesses and lawyers in this case as the varicella zoster virus, herpes zoster virus, or herpes varicella zoster virus; I will refer to it for the sake of simplicity as the zoster virus.
The zoster virus causes chickenpox, shingles (often referred to as herpes zoster) and, in some cases, a generalised zoster infection. After an episode of chickenpox, the virus lies dormant in the body, residing in the nerves that emerge from the spine. The 1998 blood test revealed that Mrs La Motte had suffered from chickenpox in the past.
If the zoster virus later re-activates as shingles, it spreads along the nerve. When the virus reaches the skin, it causes blisters or vesicles, which typically occur in a localised dermatomal pattern, on one side of the body only. A dermatome is the body area served by a single spinal nerve. Sharp nerve pain is also a common feature of shingles. Shingles may be complicated by a condition known as post-herpetic neuralgia, in which pain persists in the area where the shingles occurred; this pain may be severe and can continue for months or years.
In persons with compromised immune systems, such as transplant patients, the virus may re-activate after chickenpox into shingles and/or an atypical generalised zoster infection which is carried by the bloodstream rather than by a nerve. In cases of generalised infection, the blisters or vesicles are not confined to a localised dermatomal pattern. There was a dispute between the experts as to whether the generalised infection involves nerve pain.
For some time – probably a few weeks - before going to Melbourne in September 2000, Mrs La Motte noticed some blisters or sores on both thighs (mostly on the left thigh) and around the knee on the left leg. At the time, she assumed they were just another rash from the transplant complication called graft versus host disease[1].
[1]Discussed earlier in paragraph [10].
When she trod on the nail on 27 September 2000, she felt a sharp, excruciating pain. The nail punctured the skin between the first and second toes on her right foot. By the time she went to the Freemasons Hospital two days later, her right foot and leg were swollen, red and throbbing. She suffered an acute bout of cellulitis inflammation. At the time of admission, it was noted that she had a vesicular or blister rash on her legs. She stayed in hospital for two nights and was treated with antibiotics.
After returning to Sydney, on 3 October 2000 she went to see Dr Arthur, the haematologist who had been treating her for leukaemia. This was a routine appointment which had been arranged before the nail incident. He noted that she had what he described as a “most bizarre” rash on her lower limbs, with blisters (vesicles) on both thighs and lower legs. The presence of blistering caused him to conclude that the rash was not in fact caused by graft versus host disease. He sought the advice of a dermatologist. Tests showed this to be a manifestation of the zoster virus.
Since 1991, one of the doctors who had been treating Mrs La Motte for the CRPS in her left arm was Dr Crawford, a specialist in pain management. Mrs La Motte went to see Dr Crawford on 4 October 2000, as a result of the nail incident and her concerns about her right leg. On examination, Dr Crawford observed significant alodynia (where the patient perceives pain from a stimulus that would normally be non-painful) and hyperalgesia (being an exaggerated reaction to a normally painful stimulus) of the entire right foot and lower leg. Dr Crawford tested her leg and found a generalised loss of light touch and pinprick sensations below the right knee in a non-anatomical distribution. He observed the right foot to be cold, blue, mottled and swollen. These are all symptoms found in CRPS type 1. He could not find any pain localised along the distribution of any nerve. He diagnosed a CRPS type 1 involving the right leg.
Dr Crawford continued to see Mrs La Motte every six weeks or so from then until the trial and continued to observe much the same symptoms in her right leg and foot, although the frequency or severity of some of them had been reducing.
For some months after the nail incident, Mrs La Motte had to use a wheelchair because walking was too painful. She could not even bear to have the weight of a blanket on her right leg.
She was given a Guanethidine block in January 2001 and obtained considerable pain relief from that. Up to the time of the trial, she had four further blocks to deal with the pain in her leg, although the effect of each block started to wear off after about 6 weeks. She remained on anti-depressants.
In July 2001, Mrs La Motte was examined by Professor Champion, a consultant physician in rheumatology, musculoskeletal medicine and pain medicine, with expertise in the diagnosis and treatment of CRPS. This was for the purpose of the County Court proceeding, not for treatment purposes. On examination, he found sweating in the right foot, reduction in response to touch, painful response to brush and punctate pressure stimuli, and some immobility of the right toes. Based on his examination, he agreed with Dr Crawford’s diagnosis of CRPS type 1.
Professor Champion examined Mrs La Motte again on 8 January 2004. His findings on that day strongly supported the expected evolution and progress of a CRPS type 1.
Between December 2003 and March 2004 Dr Mellick, a consultant neurologist, prepared three reports as to Mrs La Motte’s condition for the appellant’s solicitors. Based entirely on an examination of her medical records, he attributed her symptoms to the zoster virus.
At the time of the trial, Mrs La Motte was still experiencing constant pain in her right leg to varying degrees. The pain was worse if she walked or sat for too long. It was worse when the weather was cold. At times it went blue, mottled and cold; at other times it was sweaty and had a burning sensation. The pain affected her ability to sleep. She experienced regular spasms in her right foot and leg. She still used one crutch to assist her walking.
Prior to the nail incident, Mrs La Motte was receiving some assistance with household chores for about three hours once per week. After the incident, and after her husband left her in late 2003, she required much more substantial household assistance on a daily basis.
Grounds of appeal
In summary, the appellant says that the learned trial judge erred in the following respects:
(a) Accepting the diagnosis of CRPS and rejecting the diagnosis of the zoster virus as the cause of Mrs La Motte’s symptoms;
(b) Mischaracterising the appellant’s case;
(c) Accepting Dr Crawford’s diagnosis of CRPS;
(d) Accepting Professor Champion’s diagnosis of CRPS;
(e) Accepting that Dr Arthur’s evidence supported a diagnosis of CRPS;
(f) Failing to accept the evidence of Dr Mellick;
(g) Failing to resolve critical conflicts in evidence.
There is overlap in some of the arguments raised under these various headings. Where that occurs, I have dealt with the argument only once, under the heading which seems most appropriate to that argument.
At the hearing of the appeal, the appellant abandoned grounds of appeal which had sought to impugn the judge’s findings in relation to the quantum of damages.
Accepting CRPS and rejecting zoster as the cause of her symptoms
All of the grounds of appeal are really just different ways of attacking the diagnosis of CRPS. However, there is a specific argument[2] which goes like this:
[2]Appellant’s outline of submissions at [1.1] to [1.6].
(a) Mrs La Motte had the zoster virus in her body, and a vesicular rash on her legs, at the time of the nail incident.
(b) Dr Crawford and Professor Champion broadly agreed that CRPS is a diagnosis of exclusion, meaning all other known causes would have to be excluded before such a diagnosis could be made.
(c) Mrs La Motte’s evidence in court was consistent with a dermatome pattern and should be preferred to the history which she gave to her doctors of generalised glove-stocking symptoms on her right leg.
(d) Those matters “should have driven the primary judge to the conclusion that [Mrs La Motte’s] symptoms were caused by a zoster virus, alternatively that his Honour could not have been satisfied they were caused by [CRPS].”
The first of those matters, namely, that Mrs La Motte had the zoster virus and rash at the time of the nail incident, is not in dispute. The question is whether the zoster virus was the cause of the various symptoms in her right leg.
As to the second matter, Dr Crawford and Professor Champion based their diagnosis on the presence of certain symptoms which are commonly present in CRPS, as well as the exclusion of any other explanation for those symptoms. That is what they meant by the expression “a diagnosis of exclusion”.
As an aside, I observe that Mrs La Motte only had to establish the diagnosis of CRPS on the balance of probabilities. There were times, both before us and below, when it seemed as if the concept of a “diagnosis of exclusion” was being used in a manner which effectively required CRPS to be established beyond reasonable doubt.
Dr Crawford was unaware when he saw Mrs La Motte in October 2000 that the rash on her legs was due to the zoster virus; he thought it was just a skin problem which was being treated by somebody else. To that extent, his initial diagnosis may be validly criticised. In cross-examination he acknowledged that, had he known of the presence of the zoster virus, he would have had to consider (and exclude) the possibility that she had shingles before he could make a diagnosis of CRPS. However, he thought shingles was unlikely to be the cause of her symptoms, for the following reasons: her pain was in a generalised glove-stocking distribution rather than the usual dermatomal pattern associated with shingles; she had vesicles but no pain in her left leg; she had other symptoms (such as altered sensation and change of skin colour and temperature) which were not explained by a diagnosis of shingles.
Pressed further, Dr Crawford said that if she did have shingles at the time she stepped on the nail, then her leg would have been already sensitised “and that is why the pain condition she had once she stepped on the nail blew up so rapidly, so quickly and so severely that it did. Her nervous system was already primed and sensitised for another injury and she got it and it was a second injury that gave her this [CRPS].” That is to say, shingles and CRPS were not necessarily inconsistent diagnoses.
Professor Champion also excluded the zoster virus as the cause of her symptoms. Like Dr Crawford, he also said that even if she had shingles, that would only account for part of her symptoms.
So, both of the doctors who regarded CRPS type 1 as a “diagnosis of exclusion” were in fact able to exclude the zoster virus as the cause of Mrs La Motte’s symptoms. They did so based on their own observations as well as on what Mrs La Motte reported to them. Indeed, this entire line of argument by the appellant ignores the doctors’ own observations and seems to proceed on the false premise that the diagnosis of CRPS was based only on the history provided to the doctors by Mrs La Motte.
It is this third matter, the question of Mrs La Motte’s history, which best highlights the problems faced by the appellant in this appeal. The appellant urges us to hold that the trial judge should have preferred Mrs La Motte’s evidence in court to the history she gave to her doctors.
According to Drs Crawford and Arthur and Professor Champion, Mrs La Motte described the relevant symptoms to each of them in a way which they categorised as a generalised or glove-stocking distribution, not a dermatome pattern.
Unsurprisingly, Mrs La Motte did not use medical expressions such as “glove-stocking” or “dermatome pattern” when she gave evidence in court. She tended to use everyday expressions such as referring to the back or side of, or all over, her legs.
Mrs La Motte gave evidence that the rash on her legs did not look like the shingles rash she had seen on patients in her nursing days – they had the rash in a line and it was red and extremely painful. She said her rash was more like blisters, spaced apart, not in a line. She was adamant that the blisters were itchy, not painful. She denied that the blisters were “all over” both legs. She described them as being mostly on the left leg, with a few on the right thigh. Later, she seemed to agree that there were some on the lower right leg as well.
She denied that the blisters had caused her discomfort or difficulty with walking. When it was put to her that she had told Dr Arthur that the blisters had that effect, she said she did not remember telling him that but, if he had recorded it, it must be true.
At a number of places in the transcript, it is apparent that she pointed to her legs as she was describing the location of the blisters. Towards the end of her evidence, she went with the trial judge and the two senior counsel into an ante room so the judge could see the location of the scars left by the blisters. These demonstrations would have enabled the trial judge to assess all the evidence as to the number and location of the blisters for himself, something which an appeal court simply cannot do. In particular, it would have enabled the judge to assess whether she was deliberately understating the extent of the blisters, as the appellant’s counsel suggested in cross-examination that she was doing.
Throughout her evidence, Mrs La Motte said that after the nail incident she experienced pain, “pins and needles” sensation, alteration of skin colour and temperature and loss of feeling, all in her right foot and leg.
However, her evidence as to the precise location of some of these features was not particularly satisfactory. For example, she initially described the pain as starting where the nail went into her foot, going down to the small toe and up the back of the right leg to behind the knee. Although she referred to “the back”, she also explained that the pain was “on one side”, “on the side” and finished “just behind the knee at the side”. When she spoke of “the back” or “the side”, she initially said she was referring to the right hand side or outside of her right leg. By the end of her evidence, she had switched to saying that the pain was on the left hand or inner side, not the right hand or outside, of the right leg. Towards the end of cross-examination, she complained that she was getting confused between the left and right sides and the cross-examiner was confusing her with his questions. The trial was adjourned for a short period of time, due to her confused state.
Even without her complaining of confusion, at various times during her evidence her answers demonstrated clear confusion as to some details, such as the timing of various events, or what she had said to which doctor and when. The transcript also shows that she became distressed on several occasions whilst giving evidence. Given that the trial took place some 3½ years after the nail incident, that much of the terminology and questioning was indeed confusing, and the nature and extent of her medical history, some confusion as to such details seems perfectly understandable.
As with the blisters, it is apparent from the transcript that on a number of occasions Mrs La Motte showed the judge where on her right leg she had experienced the pain and other symptoms. Once again, this put the trial judge in the best position to assess Mrs La Motte’s evidence for himself and to consider any consistency or inconsistency with her doctors’ evidence.
The trial judge made the following observations as to Mrs La Motte’s credit:
“… Mrs La Motte was not a historian upon whom one could place one’s total faith in complete confidence. Whilst agreeing that that is so, I do not take the next step and say that her account of her pain and where it occurred and the various other symptoms and signs which she reported is to be disregarded altogether. It is indeed to be treated with some caution and I have thus treated it, but I did have the opportunity to observe Mrs La Motte over a lengthy period of time in the witness box, punctuated by several other episodes, and thus amounting to her testimony over several days. It was clear to me that [her] presence in the witness box was a great burden to her and as time went by and the questioning went on she did at times become confused and sometimes misreport, never in my view in a dishonest fashion, certainly not in any deliberate attempt to endeavour to mislead me or anybody else that she encountered in this court room.”
For the reasons already given, the learned trial judge was in a far better position than this court to assess Mrs La Motte’s evidence and come to the above conclusions. An appellate court is generally at a disadvantage, compared with a trial judge, with respect to the evaluation of witness credibility and the “feeling” of a case which the transcript does not always reveal. To the extent to which there were inconsistencies between her description of symptoms in court and the description she gave to her doctors some years earlier, it was certainly open to the trial judge to treat her evidence with some caution.
The judge’s finding - that she had generalised glove-stocking distribution of symptoms, not dermatomal distribution - has not been shown to be erroneous, glaringly improbable or contrary to compelling inferences. On the contrary, that finding is supported by the doctors’ own observations of glove-stocking distribution, quite independently of any history given by Mrs La Motte. The appellant does not contend that the judge could not accept the doctors’ observations.
Characterisation of the appellant’s case
The appellant says that the trial judge mischaracterised or unduly narrowed the appellant’s case by describing it as being based solely on shingles, a diagnosis which the trial judge rejected.
The appellant’s current senior counsel, Mr Ruskin, says that the appellant’s case at trial was that all of Mrs La Motte’s symptoms were explicable by a zoster infection which:
(a) Was shingles in a dermatomal pattern; or
(b) Was shingles in a diffuse pattern because of her immuno-depressive condition; or
(c) Whether it was shingles or chicken pox, gave rise to neuralgic pain.
I accept that these various possibilities were all touched upon to varying degrees in the evidence of Dr Mellick and the cross-examination of Mrs La Motte’s doctors, as were several others which are no longer pursued[3]. But I must say that the trial transcript does not disclose that the matter was ever put to the trial judge with the same analytical clarity as Mr Ruskin put it on appeal.
[3]For example, evidence was led and suggestions were made – but apparently not pressed - that her symptoms were related to problems in her lumbar spine or a somatoform disorder.
The trial judge made a number of observations about the appellant’s case. Early on in his reasons, he said:
“The defence here advanced with great skill and care … revolved around the theory that this lady had suffered from chicken pox at some time in the past because the pathology was there to indicate the presence of the remnants of the virus when investigations were carried out. The theory advanced was that this had developed into shingles, evidenced by the rash which she suffered and blistering which occurred in her lower limbs. This was indicative, it was said, of shingles in a person undergoing immunosuppressant treatment and explained the presence of symptoms without connecting it to the incident in the bathroom …”[4]
[4]At [8].
Later on, he said that “if shingles is to be excluded … then the weight is tipped very strongly in favour of the notion that she is suffering from a reflex dystrophy …”[5]. In my opinion, a fair reading of the transcript shows that the appellant’s case below was indeed based primarily on the proposition that Mrs La Motte’s symptoms were due to shingles. That the trial judge’s reasons focussed on that proposition is hardly surprising.
[5]At [15].
Elsewhere in his reasons, his Honour referred to the fact that Professor Champion had rejected the appellant’s “theories”. Unfortunately, his Honour did not expand on what those theories were, but his use of the plural term shows that he was well aware that the appellant had more than a single theory. As is discussed below, it would certainly have been desirable for the trial judge to have given more detailed reasons than he in fact did. To say that is not to say that appealable error has been demonstrated.
Accepting Dr Crawford’s diagnosis of CRPS
The appellant criticises the trial judge for having placed great weight on Dr Crawford’s long professional relationship with Mrs La Motte. The trial judge commented that Dr Crawford had the “inestimable” advantage of having treated Mrs La Motte for many years, having seen her immediately after the incident and regularly since the incident. His Honour made similar remarks in relation to Dr Arthur. He contrasted their position with that of Dr Mellick, whose evidence he said suffered from the disadvantage of not having examined Mrs La Motte.
It would have been inappropriate for the trial judge to have used the long treatment history as the sole basis for preferring the evidence of Dr Crawford (and Dr Arthur) to that of Dr Mellick. Brief as his Honour’s reasons for decision may be, on a fair reading of them, I do not believe that is what he did. In circumstances where his Honour found that Mrs La Motte’s evidence as to her symptoms had been somewhat confused, it was perfectly proper for the trial judge to conclude that long treatment histories and regular examinations since the incident gave Drs Crawford and Arthur considerable diagnostic advantages over a doctor who had never even examined the patient. I do not agree with the appellant that such matters were irrelevant.
The appellant also says that Dr Crawford’s past knowledge of Mrs La Motte’s CRPS type 2 “distracted or deflected Dr Crawford from properly considering the true clinical picture”, particularly from considering the role of the zoster infection[6]. But on the evidence before his Honour, it cannot be said that her past history of CRPS was irrelevant or of no probative value. Dr Crawford’s evidence, that a person who has experienced one episode of CRPS is more likely to suffer another episode in response to other injuries, was not challenged in cross-examination and was supported by Professor Champion. To this extent, Dr Crawford’s past knowledge of her CRPS type 2 was a relevant consideration.
[6]I have dealt earlier with Dr Crawford’s lack of knowledge of the presence of the zoster virus when he first made a diagnosis of CRPS.
Accepting that Dr Arthur’s evidence supported a diagnosis of CRPS
Dr Arthur was the clinical haematologist who had been treating Mrs La Motte for her leukaemia since mid 1998. As mentioned earlier, a few days after the nail incident he arranged for tests to be done on the rash on her legs, which showed the presence of the zoster virus.
Instead of recurring as shingles, Dr Arthur said that the zoster virus may also re-activate in bone marrow transplant patients in a condition called atypical generalised zoster infection (also called disseminated varicella zoster). In that case, it looks like the initial chicken pox with a generalised infection which is carried by the bloodstream.
He diagnosed Mrs La Motte as having an atypical generalised zoster infection and not the shingles variant of the zoster virus. She had “a typical pattern which has been described in transplant patients.” He arrived at that conclusion based on his own observations and on what Mrs La Motte described to him of her symptoms.
Dr Arthur said the zoster virus was in her bloodstream and did not arise from the nerves; that was why it was on both legs and not in the nerve distribution. His observation was that the rash was on both legs; it did not follow the dermatomal distribution which ordinarily occurs in shingles.
He noted that since the nail incident, Mrs La Motte was reporting pain and an abnormal painful sensation (dysesthesia) in the right leg and foot which was very similar to the pain associated with her left arm. He said the pain she described to him was not typical of the electric-like shooting pains that people with shingles have.
The trial judge noted Dr Arthur’s long experience with patients suffering from shingles. He clearly accepted Dr Arthur’s evidence that he had “a low tolerance” for shingles, as it was a condition that was potentially life-threatening for his immuno-suppressed patients. His Honour accepted that Dr Arthur would have been alert to any possibility that Mrs La Motte was suffering from shingles; in his opinion, she was not suffering from that condition. His Honour said that once shingles was excluded, “the weight is tipped very strongly in favour of the notion that she is suffering from a reflex dystrophy of the sort described by Dr Crawford and Dr Arthur and Professor Champion.”
The appellant makes a number of criticisms of the above findings. The appellant says that the judge should have given little weight to Dr Arthur’s evidence because he was a haematologist without expertise relevant to the diagnosis of nerve damage. However, the appellant’s counsel cross-examined Dr Arthur at length about various neurological features of the zoster virus, without any suggestion being made that he was not qualified to answer the questions. Dr Arthur was careful to indicate when he was being asked a question outside his area of expertise; for example, he said he was not an expert in the area of sympathetic dystrophy. In my opinion, the trial judge was entitled to accept Dr Arthur’s considerable expertise in relation to shingles, and the effect of the zoster virus on transplant patients.
The appellant also points to several areas in which Dr Arthur and Dr Mellick were in general agreement. Dr Arthur agreed that in transplant patients with the zoster virus, the nerve may not actually appear to be clinically affected and the infection presents as a generalised blood stream infection without nerve involvement (which is an atypical generalised zoster infection). Alternatively, there can be both nerve and blood stream involvement at the same time. The trial judge noted that there was no real difference between Dr Arthur and Dr Mellick in this regard.
The appellant asserts that the following conclusion flows from that evidence:
“Accordingly, the evidence of Dr Arthur is not inconsistent with the diagnosis of [the zoster virus] as being the cause of [Mrs La Motte’s] pain; he did not make a diagnosis of [CRPS] type 1. Accordingly, the judge fell into error in holding that his evidence supported the diagnosis.”
It is true that Dr Arthur did not make a diagnosis of CRPS type 1 or reflex dystrophy, that being outside his area of expertise. In so far as the trial judge said that Dr Arthur had diagnosed “the same sort of reflex dystrophy” as Dr Crawford and Professor Champion, his Honour was in error. However, Dr Arthur’s evidence did support the diagnosis of Dr Crawford and Professor Champion in so far as they also excluded the zoster virus as the cause of her symptoms.
Nevertheless, it is simply incorrect for the appellant to assert, as it does in the preceding quote, that Dr Arthur’s evidence is “not inconsistent with” zoster being the cause of her pain. Whilst Dr Arthur agreed in general terms that the zoster virus can manifest itself in transplant patients as shingles and/or an atypical generalised zoster infection, in the case of Mrs La Motte he expressly excluded shingles as the cause of her pain, based on his extensive experience with shingles. His unequivocal opinion was that she only had the generalised zoster infection with no nerve damage or pain.
Accepting the diagnosis of Dr Champion
The appellant complains that Professor Champion is not a specialist in neurology and was therefore at a disadvantage to Dr Mellick in expressing an opinion about a viral infection which commences in the nervous system. It is true that Professor Champion is not a neurologist, just as it is true that Dr Mellick is not an expert in CRPS.
However, Professor Champion is an expert - apparently of some international standing - in the field of CRPS. He did not simply diagnose CRPS type 1 as a matter of exclusion, as the appellant asserts. Rather, he based his diagnosis on his own clinical observations and on the history which Mrs La Motte gave to him. For example, he observed alodynia, hyperalgesia, greater sweating in the right foot, relative immobility of the right toes, all of which were “within the range of expression of CRPS.”
Failing to accept the evidence of Dr Mellick
Dr Mellick was a consultant neurologist engaged by the appellant. He prepared two reports dated 8 December 2003 and 8 March 2004 respectively. He based those reports on an examination of Mrs La Motte’s medical records and other medico-legal reports. Unlike all the other experts who gave evidence in court, Dr Mellick never actually examined Mrs La Motte.
Based entirely on documents, he confidently concluded that there was no rationale for a diagnosis of CRPS type 1 and the cause of her symptoms was the zoster virus. In particular, he believed her symptoms were attributable to shingles. He also opined that her symptoms may be psycho-somatic in origin, a theory which seems not to have been pursued by the appellant’s lawyers.
The trial judge accepted that Dr Mellick was “an impressive witness”. He was undoubtedly an expert in neurological matters. That does not mean that the judge was obliged to accept his evidence where it differed from the evidence of the other experts, or that he was required to accept his diagnosis. In particular, he was not required to accept it in circumstances where the zoster virus (in whatever variant or form) did not explain all of Mrs La Motte’s symptoms. No appealable error has been demonstrated in relation to the failure to accept Dr Mellick’s evidence.
Failing to resolve critical conflicts in evidence
Finally, the appellant complains that the trial judge failed to resolve certain factual conflicts between Professor Champion and some or all of the other doctors. Those conflicts are said to relate to whether a virulent zoster infection may:
(a) involve infection of and damage to nerves irrespective of whether there is any vesicular response, either blood borne and diffuse or nerve-distributed and dermatomal;
(b) cause pain through nerve damage even when the vesicular response is only of the diffuse chicken pox variant.
In my opinion, it was not sufficient for his Honour simply to say:
“The competing theories put forward by [Mrs La Motte’s] doctors with the [appellant’s] doctors in opposition were examined with meticulous care and at great length by counsel on both sides, and it would be impossible for me in the course of delivering a judgment to replicate the intricate reasoning which was involved, particularly in the advancement of the [appellant’s] theory…”
Parties are entitled to know, explicitly, a judge’s process of reasoning. Significant conflicts ought to be explored and resolved. Here, the trial judge’s reasons were unnecessarily abbreviated. But the appellant does not allege, as a ground of appeal, a failure to give adequate reasons. Rather, it made the forensic choice of taking the reasons and challenging their correctness; and in that task it has, in my opinion, failed.
The appellant’s counsel conceded in argument that the trial judge was not obliged to address and resolve every dispute between the experts, and that this ground of appeal would not of itself lead to the overturning of the judgment below. Accordingly, there is no need to explore this ground further.
Conclusion
It follows from what I have said that the appeal should be dismissed.
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