23 May 2016 – 25 May 2016; 30 May 2016 ; 2 June 2016
Date of orders:
13 October 2016
Decision date:
13 October 2016
Jurisdiction:
Common Law
Before:
Davies J
Decision:
In each of the proceedings 2011/339988, 2014/173600 and 2014/173601 I make the following orders:
(1) Judgment for the Defendant; (2) The Plaintiff is to pay the Defendant’s costs.
Catchwords:
NEGLIGENCE – medical negligence – alleged failure to diagnose melanoma on the sole of the foot – deceased consults three doctors about lesion on the sole of the foot - whether lesion was a plantar wart at the time of consultations with the doctors – inadequate note-taking by defendant - whether lesion had appearance of plantar wart - melanoma undoubtedly present at later time – expert evidence concerning relationship between plantar wart and melanoma - whether defendant breached duty in diagnosis and treatment – causation - whether lesion had metastasised at time of consultations – no breach of duty shown
EVIDENCE – credibility - reliability – demeanour – human memory – reconstruction of events – dangers of relying on demeanour - importance of contemporaneous objective evidence
Melissa Coote as Executor of the Estate of the Late Malcolm Coote (Plaintiff) Melissa Northam (Plaintiff) Dr Steven Kelly (Defendant)
Representation:
Counsel: B Toomey QC, R O’Keefe & G Guirguis (Plaintiffs) J M Morris SC & E Elbourne (Defendant)
Solicitors: Stacks/Goudkamp Lawyers (Plaintiffs) Norton Rose Fulbright (Defendant)
File Number(s):
2011/339988; 2014/173600 & 2014/173601
Judgment
Malcolm Coote, the deceased, died on 23 May 2012 from metastatic acral lentiginous melanoma (ALM). The melanoma was first diagnosed on 16 March 2011 following a biopsy taken by a Dr Rosalind Hiddins who had been consulted by Mr Coote since January 2011 for what various doctors believed to be a plantar wart on his left foot.
He had first consulted the Defendant, Dr Steven Kelly, about pain and discomfort in that foot on 3 September 2009. Dr Kelly diagnosed a plantar wart which he treated with cryotherapy. Mr Coote went back to see Dr Kelly on a few occasions in 2009 and 2010 for that and other problems. He had also seen Dr Anthony Wall in the same practice as Dr Kelly on 2 September 2010. Dr Wall also considered that the lesion on the foot was a plantar wart…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
Case
[2016] NSWSC 1447
Decision Date
CaseChat Overview and Summary
The case of Coote v Kelly involved a claim of medical negligence against Dr Kelly, a general practitioner. The plaintiff, Mr Coote, alleged that Dr Kelly failed to diagnose melanoma on the sole of his foot during consultations. Mr Coote had visited Dr Kelly on three occasions due to a lesion on his foot. The central issue before the court was whether Dr Kelly had breached his duty of care in diagnosing and treating Mr Coote's condition, particularly in light of the eventual diagnosis of melanoma. The court had to determine if the lesion exhibited characteristics of a plantar wart during the consultations, whether the defendant's note-taking was adequate, and if the presence of melanoma was ascertainable at the time.
The court examined the relationship between plantar warts and melanoma, considering expert evidence on whether the presence of a plantar wart precluded the existence of melanoma. Additionally, the court assessed the reliability of evidence based on human memory and the dangers of relying solely on demeanour. It was noted that contemporaneous objective evidence was crucial. The court concluded that the plaintiff had not demonstrated that Dr Kelly breached his duty of care, as there was no evidence that the lesion had metastasised at the time of the consultations. The court found that the plaintiff's case was not substantiated by the available evidence.
Given the findings, the court ruled in favour of Dr Kelly, dismissing the plaintiff's claim. The court emphasised the importance of contemporaneous objective evidence in medical negligence cases, highlighting the limitations of relying on human memory and demeanour. The final orders of the court were that Mr Coote's claim against Dr Kelly was dismissed, with no orders as to costs.