Coote v Kelly; Northam v Kelly

[2017] NSWCA 192

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Coote v Kelly; Northam v Kelly [2017] NSWCA 192

Hearing dates:

12 July 2017

Decision date:

02 August 2017

Before:

Basten JA at [1];
Meagher JA at [136];
Simpson JA at [137]

Decision:

In each proceeding:

 

(1)   Dismiss the appeal.

 (2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

TORTS – negligence – breach of duty – medical practitioner – diagnosis and treatment of lesion on sole of foot – whether plantar wart or malignant melanoma – whether pigmented

  TORTS – negligence – causation – expert evidence – burden of proof – whether melanoma had not metastasised before plaintiff sought treatment from defendant

Legislation Cited:

Compensation to Relatives Act 1897 (NSW)
Civil Liability Act 2002 (NSW)

Cases Cited:

Coote v Dr Kelly [2012] NSWSC 219
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Category:

Principal judgment

Parties:

Matter No. 2016/335915:

 

Melissa Coote as Executor of the Estate of the Late Malcolm Coote (Appellant)
Dr Steven Kelly (Respondent)

 

Matter Nos 2016/335920; 2016/335921

  Melissa Northam (Appellant)
Dr Steven Kelly (Respondent)

Representation:

Counsel:
Mr R Sheldon SC / Mr C McMeniman (Appellant)
Mr J M Morris SC / Ms E Elbourne / Ms B Epstein (Respondent)

  Solicitors:
Stacks Goudkamp (Appellant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2016/335915; 2016/335920; 2016/335921

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2016] NSWSC 1447

Date of Decision:

13 October 2016

Before:

Davies J

File Number(s):

2011/339988; 2014/173600; 2014/173601

headnote

[This headnote is not to be read as part of the judgment]

On 3 September 2009, the late Malcolm Coote sought treatment from his local general practitioner, Dr Steven Kelly, regarding a painful lesion on the sole of his left foot. Dr Kelly diagnosed the lesion as a plantar wart, and administered cryotherapy. The lesion continued to be treated as a plantar wart until early March 2011, at which time a biopsy returned a diagnosis of malignant melanoma. The tumour was excised on 29 March 2011. However, the melanoma had metastasised and Mr Coote died on 23 May 2012.

On 25 October 2011 Mr Coote had commenced proceedings in negligence against Dr Kelly for failure to diagnose the lesion as a melanoma before it metastasised. On 14 March 2012, Schmidt J found that Dr Kelly had been negligent, but that the negligence had not been shown to have resulted in a failure to prevent metastasis of the tumour.

Shortly after Mr Coote’s death, his widow, Melissa Coote (now Melissa Northam), commenced an appeal on behalf of his estate. On 28 October 2013, this Court upheld Mrs Coote’s challenge to the trial judge’s findings on causation, and a challenge by Dr Kelly to the finding of breach of duty. A new trial was ordered. Mrs Coote also commenced proceedings on her own behalf for damages for mental distress and under the Compensation to Relatives Act 1897 (NSW).

The case for the plaintiff depended primarily on the evidence of Mrs Coote (supported by her late husband) that, before Mr Coote’s first visit to the respondent, the lesion had a black spot.

On 23 May 2016 a second trial commenced before Davies J. On 13 October 2016, Davies J dismissed all three proceedings, finding that neither breach of duty nor causation had been established. Mrs Coote appealed to this Court from that decision.

The main issues for determination on appeal were:

(1)   With respect to breach of duty, did the trial judge err in failing to accept the evidence of Mrs Coote and her late husband that the lesion had a black spot, or dark pigmentation, at the time Mr Coote first visited the respondent and thereafter?

(2)   With respect to causation, did the trial judge err in failing to find that the melanoma had probably not metastasised during the period Mr Coote was treated by the respondent?

The Court (Basten JA, Meagher JA and Simpson JA) dismissed the appeal and held:

In relation to question (1):

1. As the trial judge eschewed any reliance upon the impression created by witnesses in the course of the hearing, this Court was able to reconsider the factual findings made by the trial judge: [117].

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), discussed.

2. Mrs Coote’s evidence was that the lesion retained its black colour throughout the period August 2009 through to May 2010 and even when examined by two medical practitioners in 2011. That evidence was directly contradicted by four medical practitioners who treated Mr Coote. It was the constancy of her description of the lesion that rendered her description of its appearance at earlier times suspect. It is likely that the impressions of Mrs and Mr Coote were the result of the overwhelming effect of subsequent developments. The trial judge was correct not to accept the description given by Mrs and Mr Coote of the appearance of the lesion in August 2009: [121], [153], [155].

3. There was no real dispute as to the location of the lesion. If the precise location had been identified as an issue of importance, there should have been expert evidence as to why a plantar wart was less likely to occur on the instep than on the heel. There was no such evidence. There was no material error in the way in which the trial judge dealt with this issue: [105].

In relation to question (2):

5. To succeed on causation the appellant needed to establish that the lesion was a melanoma in September 2009, or at least before Mr Coote’s last visit to the respondent in May 2010, but had not then metastasised. The experts agreed that it was not possible to say whether metastasis to distant organs had taken place by 20 May 2010: [127].

6. However, no error was demonstrated in the conclusion of the trial judge that the plaintiff had not established that the lesion was a melanoma in 2009. Therefore, the hypothesis required in order to determine whether causation was established had not been made out. In that circumstance there was a degree of artificiality in reaching a conclusion as to causation and the better course was not to decide the question: [133].

Judgment

1. BASTEN JA: On 3 September 2009 Malcolm Coote was experiencing discomfort from a lump on the sole of his left foot. He visited his local general practitioner, Dr Steven Kelly, who diagnosed a plantar wart. The lesion was treated as a plantar wart for some 18 months until, in early March 2011, a biopsy revealed that it was a malignant melanoma. Although it was excised on 29 March 2011, it had metastasised and, despite further treatment, Mr Coote died on 23 May 2012.

2. On 25 October 2011 Mr Coote commenced proceedings against Dr Kelly seeking damages for the failure of the practitioner to diagnose the melanoma before it metastasised. The trial commenced on 27 February 2012 and, with commendable expedition, judgment was delivered on 14 March 2012. The trial judge, Schmidt J, found that Dr Kelly had been negligent, but that the negligence had not been shown to cause the harm identified. In other words, Mr Coote had failed to prove that metastasis had not commenced prior to 3 September 2009. [1]

   1. Coote v Dr Kelly [2012] NSWSC 219 (“Coote (No 1)”).

3. Mr Coote having died shortly after judgment was delivered, his widow, Melissa Coote (now Melissa Northam), commenced an appeal on behalf of his estate. [2] She challenged the finding on which Mr Coote had failed, namely causation. Dr Kelly challenged the finding as to breach of duty. This Court heard the appeal on 8 and 9 October 2013. Pursuant to a judgment delivered on 28 October 2013, both challenges were upheld. The judgment and orders made at the first trial were set aside and it was directed that there be a new trial. Before that occurred, there were various amendments to the pleadings in the original proceedings. In addition, Melissa Northam commenced two sets of proceedings in her own name; first, she claimed damages for mental distress flowing from the illness and death of Mr Coote; secondly, she claimed damages pursuant to the Compensation to Relatives Act 1897 (NSW). Those steps necessitated the preparation of further evidence with respect to her losses.

   2.    The proceedings on behalf of the estate continue to be referred to as Coote v Kelly.

4. A second trial of the negligence claim (and the fresh proceedings) commenced before Davies J in the Common Law Division on 23 May 2016. In a judgment delivered on 13 October 2016, all three proceedings were dismissed on the basis that no breach of duty had been established. [3] Davies J also concluded that, had he found negligence on the part of Dr Kelly, the plaintiff had, nevertheless, failed to establish causation. The judge made an assessment of damages against the possibility that he was wrong with respect to liability and causation.

   3. Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 (“Coote (No 2)”).

5. The matter now before this Court is an appeal from the judgment of Davies J. The appellant challenged, as she had to do to succeed, the findings with respect to both breach of duty and causation. There were also challenges to aspects of the assessment of damages under the Compensation to Relatives Act and the Civil Liability Act 2002 (NSW). For the reasons given below, the challenge to the finding that Dr Kelly (the respondent) did not breach his duty of care should not be accepted. Accordingly, the appeal must be dismissed.

Nature of case

6. The case in negligence asserted that the respondent owed the deceased a duty to take reasonable care and to exercise due and proper skill and care when providing medical treatment and advice to the deceased. It was also alleged that reasonably skilled general practitioners in September 2009 knew that melanomas could develop on the soles of the feet, with the result that consideration should be given to a possible diagnosis of melanoma for any pigmented lesion on the foot of a patient. These propositions were admitted. The critical issues at both trials were (a) whether the lesion on Mr Coote’s left foot was pigmented in September 2009 and (b), if so, whether Dr Kelly knew or should have known that.

7. Although the negligence particularised included the failure to examine the lesion “with good light and magnification”, the appellant’s case was that before Mr Coote’s first consultation with Dr Kelly she had looked at the lesion when her husband complained of discomfort and could see that there was a black spot about the size of a match head. She said that at first she thought it was a piece of tar which she tried, unsuccessfully, to remove with her fingernail. She also claimed a lay person’s familiarity with plantar warts and gave evidence that the lesion did not look anything like a plantar wart. In this regard, Mrs Coote stated that the appearance of the lesion never changed, although it grew in size over time.

8. Mr Coote’s evidence was that his wife had described the lesion to him in similar terms after she had inspected it and that he had later, after the treatment started, inspected the lesion himself using a mirror. He gave evidence at the first trial (which was before the Court in the second trial) that the lesion had dark pigmentation.

9. If that evidence had been accepted, the respondent acknowledged that a breach of duty would have been established. However, the trial judge found that the evidence was unreliable and did not accept it. It appears from the reasons given following the second trial that the case on breach of duty turned upon that finding of fact. However, on the appeal, the appellant sought to develop a further argument based on the proposition that the lesion was not on the weight-bearing part of the foot and was therefore in an atypical position for a plantar wart. Even if there were doubt as to whether the lesion appeared to be pigmented at the time it was observed by the respondent, the location of the lesion should, according to the appellant’s submission, have raised a concern as to the correctness of the diagnosis of plantar wart, sufficient to require the respondent to consider the possibility of an alternative diagnosis and carry out a biopsy.

10. This was at least a change in emphasis. There is no doubt that there had at all stages been an issue as to the precise location of the lesion (which was roughly where the arch of the instep meets the flat surface of the heel) and there had been evidence at the first trial from two general practitioners called as experts, as to the significance of location. At the second trial, the parties tendered the evidence of the general practitioner experts, who were not recalled. However, at the second trial six specialists gave expert evidence, none of whom was asked whether the precise location of the lesion should have been a material consideration for the respondent.

11. With respect to the causation issue, the finding of the trial judge turned on the pathology (evidence of metastasis was located in the lymph nodes in Mr Coote’s groin on 6 April 2011) and the evidence of the specialists as to when it could be said that the melanoma had first metastasised, with malignant cells being transported to regions distant from the left foot.

Breach of duty

(a)   evidence as to pigmentation

12. The evidence as to whether or not the lesion was pigmented in September 2009 fell into three categories. First, there was the evidence of Melissa Coote and Malcolm Coote as to what they had observed. Secondly, there was the evidence of Dr Kelly and other treating general practitioners as to what they had observed. Thirdly, there was the pathology obtained in March 2011, from which certain inferences might be drawn, retrospectively.

(i)   evidence of Mr and Mrs Coote

13. In a statement dated 24 February 2012, Melissa Coote said that she examined her husband’s left foot in about August 2009: [4]

“I saw on the sole of his foot, between the heel and the arch a little black mark about the size of a match head. It was not a perfect round shape. I thought it was a piece of black tar and went to scrape it off with my fingernail. It was raised above the surrounding skin and I was not able to scrape it off. I was not sure what it could be.”

She also gave evidence that she was familiar with plantar warts and said that “[t]he mark on Malcolm’s foot did not look like any of the plantar warts I have seen.” [5]

4.    Statement, par 16.

5.    Statement, par 19.

14. Mr Coote saw the respondent on four occasions between 3 September and 14 October 2009, and again on 20 May 2010. On each occasion the respondent applied cryotherapy (liquid nitrogen) to the lesion. Mrs Coote’s evidence continued: [6]

“During the time Malcolm was having cryotherapy treatment to the lesion, I noticed that it was growing in size. It became very black in the middle and more dark brown on the outsides. It looked like it had bled into the skin and it was leaching outwards. It was black and crusty following cryotherapy. It was also becoming more raised above the surrounding skin.”

6.    Statement, par 22.

15. Mr Coote prepared a lengthy statement dated 24 November 2011. He recounted the description given by his wife on inspecting the lesion in about August 2009 in the following terms: [7]

“There is a dark circular mark, about the size of a match head, between the heel and arch of your foot which is raised above the adjacent skin.”

Mr Coote said he did in fact examine the lesion during September and October 2009 using a mirror. He said that during that period “the lesion grew in size and the general appearance of it changed.” [8] He continued: [9]

“The changes in the lesion that I observed were that it was becoming darker in colour, crustier and more raised in appearance during September and October 2009. I used to remove the top of the wart because it was raised up and felt uncomfortable. The lesion was also becoming more asymmetrical in shape and was flaking around the perimeter.”

7.    Statement, par 19.

8.    Statement, par 36.

9.    Statement, par 37.

16. In the course of evidence given for the purposes of the first trial, Mr Coote was asked to draw the shape of his foot and indicate the approximate shape and size of the lesion. In describing what he had drawn, he said that his perspective was “looking at it from below, because I had my foot turned up looking at me.” [10] Several drawings were made, purportedly as at different dates.

    10.    Tcpt, 16/12/11, p 16(19).

17. In the course of cross-examination, Mr Coote agreed that he only became conscious of the lump when it started to interfere with his daily activities; that the lump was not precisely on the heel, but “towards the back of the arch towards the heel area”, so that it caused trouble because of “the pressure of the arch being applied to the instep of a shoe”. [11]

    11.    Tcpt, p 28(1)-(18).

18. Mr Coote was cross-examined as to his description of the lesion becoming darker, crustier and more raised in appearance after cryotherapy. He denied that he was talking about the colour being “a shade darker than your normal skin colour” and said it was “[g]rey going on black type of colour.” [12] He agreed that it was “black, essentially, from mid-September 2009 until it was finally excised and diagnosed”. [13]

    12.    Tcpt, p 32(12)-(17).

    13.    Tcpt, p 32(44).

19. Mrs Coote gave evidence at both trials. In the first trial she described the location of the lesion as “[o]n the nexus of the arch of the foot, the outside and the heel.” [14] In the course of the second trial, the cross-examiner squarely challenged her evidence that the lesion had been black at the time she first saw it and had continued to have black colouration thereafter. All her observations were made with the naked eye. She was not asked when or in what circumstances she first became aware of the importance of the colour of the lesion.

    14.    Tcpt, 28/02/12, p 84(34).

(ii)   evidence of treating doctors

20. At the first trial Dr Kelly gave evidence that he had “only vague recollections” of treating Mr Coote; he recalled “at least two occasions” when he treated a wart on his foot. [15] At the second trial Dr Kelly gave evidence that he had no clear recollection of treating Mr Coote, although he said he had, at the time of the first trial, “vague recollections and I still have a recollection of treating Mr Coote yes.” [16] Nevertheless, he was not, on either occasion, able to give an account of the first consultation, except by reference to his standard practice.

    15.    Tcpt, 29/02/12, pp 137-138.

    16.    Tcpt, 24/05/16, p 48(10).

21. Dr Kelly’s notes merely recorded the diagnosis, “plantar wart”, and the treatment, cryotherapy. He was asked in chief: [17]

“Q. Do you have a usual practice in recording any unusual features, and if so, what’s that?

A. That’s absolute. Unusual features are a red flag, and those are the first things that would be recorded.

…

Q. Nowhere in your notes, I suggest, do you use the word ‘pigmented’?

A. Nowhere in my notes I’ve used the word ‘pigmented’. If this lesion appeared pigmented, that would have been a red flag.”

He used the phrase “red flag” on many occasions.

17.    Tcpt, 29/02/12, p 139(47).

22. He had also been asked at the first trial: [18]

“Q. And what was the alternative or differential diagnosis or diagnoses that were entertained in your head?

A. Lesions on the foot always one considers malignancies. It’s how I’ve been trained, I guess, but that possibility was discarded because of the appearance of the lesion.”

18.    Tcpt, p 161(45).

23. He acknowledged that he had not used a dermatoscope, nor a magnifying glass and a bright light to assist with his inspection and had relied upon his naked eye. [19] He stated that pigmentation was “the hallmark of melanoma” and that it would be apparent to the naked eye. [20]

    19.    Tcpt, 29/02/12, p 160(50); Tcpt, 24/05/16, p 50.

    20.    Tcpt, 24/05/16, p 51(28)-(32).

23. Dr Kelly’s note of the consultation merely recorded “plantar wart” which he stated “implies certain characteristics, including thickening of the skin, lack of pigment.”

24. The cross-examiner focused on the inadequacy of the record: [21]

    21.    Tcpt, pp 61ff.

“Q. Well what it records is your conclusion from what you saw?

A. Correct.

Q. It doesn’t record what you saw at all does it?

A. The conclusion is based on the observations.

Q. [He was then read a passage from a standard text as to the appropriate diagnostic approach.] Can you tell us which of those diagnostic actions you took, did you look at the wart, at the lesion?

A. Yes. Well I’m – as I said I have no clear recollection but that would be my normal practice to do, and I did it by cryo so by the nature of it I am certain that it was observed.

Q. Yes, so did you feel it?

A. Yes I was applying cryotherapy so that’s part of that process.

…

Q. Did you measure it?

A. By observation yes.

Q. What did you estimate its size to be?

A. I, I didn’t record that.

Q. Right. The fact is that you can’t remember the colour of the lesion can you?

A. That’s correct.

…

Q. You can’t remember the colour of the lesion at any of those other consultations.

A. I don’t apply cryotheraphy to melanotic lesions.

…

Q. … So what’s the basis for you saying that in this case you were not applying cryotheraphy to a melanotic lesion?

A. That is not the general practice for a, a melanotic lesion, it’s not something that I would ever do.

Q. But you didn’t believe it was a melanotic lesion, did you?

A. I observed the lesion each time I treated it.

Q. How do you know that?

A. Because I don’t work with my eyes closed.

Q. No, but when you say you observe, you can see something without observing the detail of it, can’t you?

A. Colour is something that we perceive present or not.”

26. The cross-examiner also suggested that a plantar wart could have pigmentation, including black pigmentation. [22] Dr Kelly agreed with that but suggested that if it were pigmented, the lesion “would be assumed to be something more sinister and treated as such.” [23]

    22.    Tcpt, p 69.

    23.    Tcpt, p 69(22); see also p 72.

27. Following the last consultation on 20 May 2010, Mr Coote did not see another practitioner until, on 2 September 2010, he was seen by Dr Anthony Wall, a member of the same practice as the respondent. Dr Wall recorded the same diagnosis, namely “plantar wart” and continued cryotherapy. It appears that he did so at the request of Mr Coote, who had wished to see Dr Kelly again, and expected a continuation of the treatment provided on earlier occasions. It was common ground that Dr Wall expressed scepticism about the effectiveness of cryotherapy (and indeed other treatments). He nevertheless applied it. In order to do so, he must have observed the lesion at close quarters. In his medical notes he recorded “cryo plantar wart”. In his evidence at the first trial, Dr Wall gave an account of his observations, although he could not independently recall which foot he had treated. He gave the following evidence: [24]

“Q. And what did you observe when you examined his foot on this day?

A. Yes, I recall that I observed a hyperkeratotic lesion.

Q. Could you explain that to her Honour?

A. Hyperkeratotic refers to an abnormal thickening of the upper, outermost layers of the skin. I believe it’s the stratum corneum that becomes keratinised and very thick, so it’s like a thickened dry sort of skin.

Q. And you’ve got a picture in your head of that sitting here today?

A. I can, I can recall that that’s the lesion that I saw, was a hyperkeratotic lesion, yes.”

24.    Tcpt, 28/02/12, p 114(24)-(34).

28. He also said that he had observed that the surface of the lesion had a “yellowish discolouration”, but was not a “black lesion”. He stated that had it been black, “I would be alarmed that that was not a plantar wart. I would think that that would be likely to be a melanoma, unless proven otherwise. I would not freeze a black lesion on a foot.” [25] He also said that he would have recorded that fact in his notes because it was “an abnormal finding.”

    25.    Tcpt, p 115(5).

29. Dr Wall was challenged as to his recollection, although he said he had prepared a statement with respect to the matter some 10 or 11 months after the consultation. [26] He was also asked if he had used a dermatoscope in examining the lesion and said that he had. [27] He was challenged as to why he had not mentioned that in his evidence-in-chief, and said that he had not finished his account. [28] Dr Wall was challenged as to his having any independent recollection, but remained steadfast in his evidence that he had such a recollection.

    26.    Tcpt, p 119(10)-(15).

    27.    Tcpt, p 121(40).

    28.    Tcpt, pp 121-122.

30. Dr Wall’s evidence at the second trial, almost four years later, was less satisfactory. He was pressed again as to why he could say with confidence that he had a recollection of the consultation with Mr Coote in September 2010. He gave an account of Mr Coote being angry and having been accompanied by his wife. [29]

    29.    Tcpt, 25/05/16, p 110(12)-(21).

31. The trial judge was satisfied that Dr Wall was mistaken about his evidence of the confrontation and, in particular, the judge was affirmatively satisfied that Mrs Coote was not present at the consultation, she having denied being present and her denial being independently corroborated by records from the school at which she was employed. That led the trial judge to discount Dr Wall’s evidence at the second trial, but to accept that “his evidence at the first trial is likely to have been reliable”. [30]

    30. Coote (No 2) at [57].

32. It was significant that, given that there was clearly a melanoma six months later, Dr Wall accepted that the lesion must have been a melanoma when he saw it and that he had not identified it as such.

33. The third practitioner with whom Mr Coote consulted in relation to the lesion was Dr Rosalind Hiddins, whom he saw at another practice, on 11 January 2011. Dr Hiddins’ record of the visit noted that his arm, about which he had consulted her a week earlier, had improved. It then stated that he was “wanting warts cryo”. Under “Reason for visit” and under “Procedures” Dr Hiddins recorded, “Left Cryotherapy, Plantar wart”. She also noted that he was to continue treatment with “Wart-Off” at home and should be seen again “in 2 weeks for further cryotherapy”.

34. Dr Hiddins saw Mr Coote again on 28 January and recorded “on exam – large 5mm wart appears to be contracting”. She recorded that cryotherapy had been repeated.

35. He returned a fortnight later on 11 February. Dr Hiddins recorded:

“repeat visit

hasn’t been using Wart-Off in between

large wart measures 10mm diameter

wart closer to heel 5mm diameter – ? separately from normal tissue”

Dr Hiddins again provided cryotherapy and “advised on pumice and Wart-Off in between cryo”.

36. Dr Hiddins had given no statement to the respondent’s solicitors prior to the first trial and was led through her evidence. When asked to recount her recollection of the first consultation with respect to the lesion, on 11 January, she set out information which she said Mr Coote had supplied and then stated: [31]

“I think I examined the wart, and at that point, it looked predominantly flesh coloured. There were some tiny brown spots, and that appearance is quite similar to how a plantar wart would appear. Usually, there’s some brown spots in warts, and they are the appearance of thrombosed capillaries, so I was in agreeance with Malcolm that it closely resembled a wart, and the way that it behaved, sounded like a wart. I mentioned his – I had a talk to him about his previous therapy. He said that – I think he’d only had some periodic applications of the cryotherapy, so I suggested to him it may be more beneficial to come in every second week for cryotheraphy, as well as having a topical salicylic acid preparation to do at home in between treatments, and I asked him to come back in two weeks to have further cryotherapy done.”

31.    Tcpt, 29/02/12, p 177.

37. Dr Hiddins was asked if she actually had an image in her head, sitting in the witness box, as to what the lesion looked like on that occasion and replied that she did. She stated: [32]

“The lesion was approximately 5mm in diameter, it was fairly symmetrical, a nice circular appearance to it, it was predominately fresh [flesh?] coloured and it had very small brown spots scattered throughout. At that point there was only one lesion and it was on the sole of the foot.”

32.    Tcpt, p 178(10).

38. Dr Hiddins then gave evidence about the second consultation, on 28 January, about two weeks after the first consultation. She described the consultation in the following terms: [33]

“A. He said at that point that he had been using the salicylic acid preparation and at the point when I examined the wart it appeared that it had improved, it was actually shrinking in its appearance. And to me that confirmed my suspicion that it was a wart and it was responding to the treatment I had started. So again on that second visit I pared the wart and applied the cryotherapy and again said continue with the topical acid and come back in another two weeks today.

Q. Do you have an image, today, what it looked like on the second occasion [of] your treatment?

A. Yes, I do. It appeared to be quite similar to the first presentation. It was still a flesh coloured with lesion [sic], with small brown spots and it actually had more of a sort of dry flaky top to it at that point. So – and it was a little bit more shrivelled rather than the regular round appearance that it was on the previous treatment.”

33.    Tcpt, p 178(25)-(40).

39. As to the third consultation (on 11 February 2011) Dr Hiddins gave the following description at the first trial: [34]

    34.    Tcpt, p 179.

“At that point there actually was a second lesion on the wart, adjacent to the wart, quite close together. And when I asked Malcolm what he had been doing in between he said that he had not been using the salicylic acid in between those two week [sic] period.

…

Q. Was [it] a significant feature to you at the time do you think or can you remember?

A. It’s not unusual for warts to often spread, if you have started treatment. So to me it is quite common for warts to actually get worse before they improve.

Q. If you’ve got a mental picture in your head could you tell her Honour what features or any additional features were of this lesion?

A. Yes, that at the point it had actually grown in size from the 5mm to 10mm and there was an additional lesion adjacent to it that was 5mm in diameter and again it was in keeping with the same appearance as to how it was previously[,] it was a predominantly coloured flesh lesion [sic] with the brown spots.

Q. There was any additional scaliness or shrivelling, do you recall?

A. Not at that point, no.”

40. The evidence given by Dr Hiddins, from her notes and a recollection of the consultations, was potentially damaging to the appellant’s case in that it was categorically inconsistent with the proposition that, at least on the first three consultations, the lesion was black or had dark pigmentation. The description given by Mr Coote was put to Dr Hiddins who denied it was what she had observed. [35]

    35.    Tcpt, pp 190-191.

41. The cross-examiner raised three other main challenges to her account. First, he pointed out that there was no mention of colour in any of the notes of her consultations, a point which she accepted. [36] Secondly, it was suggested to her that she had received a letter from the solicitors for Dr Kelly indicating that they might seek contribution from her in respect of the proceedings brought against Dr Kelly by Mr Coote. She agreed that she had received such a letter and that it contained “the possibility of some sort of allegation of fault” on her part. [37] She agreed with the proposition that if there were only very minor pigmentation when she first saw Mr Coote, “it would make it more difficult for the other insurers to suggest that [she] had not made a timely diagnosis”. [38] Curiously, beyond insinuation, it was never squarely put to Dr Hiddins that she had tailored her evidence to suit her own interest.

    36.    Tcpt, p 186(8).

    37.    Tcpt, p 184(15).

    38.    Tcpt, p 187(5).

42. Thirdly, with respect to the first consultation, she was asked whether the following conversation, of which Mr Coote had given evidence, had occurred, namely: [39]

“At the beginning of the consultation I said to her words to the effect ‘I have a plantar wart on the bottom of my left foot and it’s very painful.’ She examined my foot and said to me words to the effect ‘Is that a plantar wart?’”

Dr Hiddins’ response was, “I don’t recall him saying that, no.” She was then asked if she denied that “he said that” which she did not, but merely repeated that she could not recall it. The inference, namely that she had queried whether it was a plantar wart, being herself uncertain, but had put her doubts aside and merely followed his instructions, was never squarely put. However, she could not recall any further conversation along the same lines. [40]

39.    Tcpt, p 187(35)-(40).

40.    Tcpt, pp 187(48)-188(12).

43. The final question and answer were as follows: [41]

“Q. Do you admit, and I want to give you every fair chance to answer this doctor, putting aside for the moment any suggestion of conscious or subconscious motivation to describe other than accurately what you saw, do you admit of the possibility that you have made a genuine mistake as to the colour of this lesion, do you admit that possibility and an innocent mistake?

A. No, I am quite confident in my description.”

41.    Tcpt, p 196(15)-(20).

44. That, however, was not an end of the evidence given by Dr Hiddins. She had seen Mr Coote for a fourth time on 24 February 2011. She recounted that consultation in the following terms: [42]

“On 24 February about two weeks later the lesion actually had dramatically changed. It had gone from a flesh coloured lesion to a more purple pink type lesion and that the [at that?] point it was quite painful for him to walk. When I pared that wart at that time it actually bled quite easily so I abandoned that. And I actually asked my supervisor, Dr Cooke, to pop in to have a second opinion of what he thought it might be. At that point Dr Cooke had examined the lesion and he said he wasn’t quite sure, it may have been something like a granulation tissue which can happen if you expose the skin to trauma and it causes a type of scarring. So he recommended that we did not treat the lesion at that consultation and to leave it for two weeks to see what progressed and how it resolved – if it would resolve.”

42.    Tcpt, pp 179-180.

45. Her fifth consultation occurred on 11 March 2011. She noted that “the lesion had actually grown from what it was on the previous treatment”. Her evidence continued: [43]

“At that point I was quite concerned, it was a lot darker than when he had first presented and I was a bit suspicious that perhaps it was a cancerous lesion at that point. I recommended to Malcolm that we take a biopsy of the lesion to confirm the diagnosis and I also examined him for any lymph node – any lumps or lymph nodes that may indicate a metastatic spread to the rest of the body.

… I could not detect any lymph nodes.

Q. When you say, it had grown quite significantly, over what timeframe are you making that comparison?

A. It was from the previous visit, so in that two week time period it had – it had looked obvious that it had grown. I can’t – I can’t recall exactly how much but it was obvious that it had grown.

Q. How did it compare from the first time that you saw him on 11 January?

A. It was completely different, it did not – it didn’t reassemble [resemble?] the appearance that it was on 11 January as I previously said it was at the 11th it was flesh coloured with brown spots and on 11 March it was a very dark purple, it was fairly much a consistent purple throughout and much larger.”

43.    Tcpt, pp 180-181.

46. In the course of cross-examination, counsel showed Dr Hiddins a photograph of Mr Coote’s left sole as at 28 March 2011. [44] She was then asked:

“Q. Now, Dr Hiddins, you will agree, I suggest, that the dark pigmentation illustrated there was of the same hue or colour as when you last saw it … at the time the biopsy was sent for sample?

A. No, it’s – it’s different again. It is much darker in the brown appearance.

…

Q. And you’re suggesting that there’s a change in colour between the lesion you saw on 11 March and the lesion depicted in the photograph just shown to you?

A. Yes, that’s correct.

Q. Do you say it’s even darker than when you saw it?

A. I remember on the 11th that it was quite a purple bluish hue, whereas on the photo here it’s quite brown and almost a black colour.”

44.    Tcpt, p 186(10).

47. It is appropriate to note that, from a bare reading of the transcript, Dr Hiddins’ answers to questions were clear, concise and responsive. If her evidence were to be accepted by the trial judge, it would provide a serious obstacle to the success of the appellant’s proceedings.

48. Dr Hiddins’ supervisor in the practice was Dr Cooke. As noted above, Dr Cooke had been consulted by Dr Hiddins in respect of the lesion on 24 February 2011. He did not give evidence at the first trial. At the second trial, he gave evidence to the following effect: [45]

“I had a look at the gentleman’s foot, Mr Coote’s foot, and the lesion didn’t appear like I would have expected a plantar wart to look after it had a number of sessions of cryotherapy. It had a, a moist fleshy slightly pearly appearance and I thought it appropriate to give it a week or two to settle down. After lesions have been frozen they can – and patients are also putting wart paint on them – they can get a chemical burn appearance and sometimes difficult to decide exactly how much is a lesion and how much is the side effect of the treatment. So I suggested to Dr Hiddins that we give it a week or two to settle down and then review it with regard to biopsy if it was suspicious.”

45.    Tcpt, 25/05/16, pp 124-125.

49. In cross-examination, he confirmed that the appearance was “pearly, opalescent.” The cross-examination was brief, but included the following passage: [46]

“Q. Did it immediately strike you as being different from what you would have expected?

A. I looked at it and thought it looked unusual, yes.

Q. … [B]ut in what way was it unusual, what would you have expected to see if it were merely a plantar wart which had been subjected to cryotherapy?

A. Either it would have had a black hard crust or a yellowish fibrousy crust layer, softer crust layer. As I understand Dr Hiddins had already cleared that, scraped the layer – the top layer off, then you either see black spots which are the dead roots of the wart or you see a lot more healthy pink flesh. But that you can see the circles of the roots of the wart … and I couldn’t see any of that at the time.”

46.    Tcpt, p 126.

50. There was no challenge to Dr Cooke’s experience (25 years as a general practitioner [47] ) nor to the accuracy of his description. It was not suggested to Dr Cooke that when he first saw it the lesion had black or dark pigmentation.

    47.    Tcpt, p 128(12).

(iii)   evidence of specialist experts

51. Thirdly, there was the evidence of the specialists. A number of propositions were uncontroversial. First, it was common ground that the melanoma excised in March 2011 was an acral lentiginous melanoma. Secondly, the experts agreed that a plantar wart could not transform itself into a melanoma because the wart was a product of human papilloma virus and the melanoma was the result of the proliferation of cells (melanocytes) and it was not presently understood to be a process in which a virus played any part. Thirdly, it was agreed that there was a category of amelanotic melanomas. Because these did not involve melanin, they had no pigmentation. However, this was not an amelanotic melanoma and the evidence did not support the view that it could ever have been such.

51. Beyond those propositions, the specialists were divided as to what could be inferred from the known pathology. One critical question was whether the lesion treated by the respondent between September 2009 and May 2010 was in fact the melanoma which was ultimately excised in March 2011.

52. The principal specialist expert for the claimants was Emeritus Professor William (Bill) McCarthy, who had been Professor of Surgery (Melanoma and Skin Oncology) at the University of Sydney. The other specialist for the claimants was Professor Roger Sinclair, whose expertise was in pathology. (Professor Sinclair had not been a witness at the first trial.)

53. The experts who appeared for the respondent were Dr Greg Crosland, dermatologist, Dr Ian Katz and Professor Stanley McCarthy (pathologists) and Professor Brendon Coventry, a surgeon with a special interest in the treatment of melanoma and skin cancers.

54. The questions asked of the expert specialists in the conclave were extensive, overlapping and in some cases poorly formulated. Many of the topics raised were not addressed in the joint evidence of the specialists. Importantly for present purposes, question 9 related to the first consultation on 3 September 2009:

“9.   Is it possible to say, in relation to the lesion as at 3 September 2009:

(a)   That it, or any part of it, did comprise a plantar wart?

(b)   That it, or any part of it, did comprise an acral lentiginous melanoma?”

56. The question encapsulated the concepts of “possibility” and fact (“did comprise”). One might have expected a lawyer to ask, “was it more probable than not that the lesion comprised …”. In any event, the experts were unanimous that the answer with respect to (a) was “no”. The respondent’s experts said that the answer to (b) was also “no”. However, Professors W McCarthy and Sinclair said that the answer to (b) was “yes because we know that it was an ALM [melanoma] when finally diagnosed and therefore an ALM from the first presentation.”

57. Question 10 specified an assumption as to colour (“grey going on black” or “black”) and asked “what was the lesion and what was the significance if any of: (a) the height above the skin surface; (b) its diameter” and both. Question 9 (above) contained no assumptions, and it is therefore difficult to know on what basis it was answered. Question 10 contained an express assumption as to colour and, at least by implication, an assumption that the height and diameter of the lesion were known. Separate answers to the question revealed the problems underlying the question.

58. Question 12 was a mirror of question 10, except that the first assumption was reversed, namely that the lesion was not dark or black in colour and the words “on the balance of probabilities” were added. To that question the following answer was given:

“AGREED BY ALL: assuming this question is asking us to look at the question prospectively as at 3 September 2009, the answers are no. As of 3 September 2009 and assuming that the lesion was not dark or black in colour, it was not possible to say what the lesion was. Assuming the above, the height of the lesion and its diameter is of uncertain significance.”

59. The question gave rise to a series of separate views as to the significance of pigmentation in melanomas. Two ideas may be noted. First, Professor W McCarthy stated:

“It was not an amelanotic melanoma given the complete pigmentation in the later diagnosed melanoma. I could not find any record of a plantar wart and an ALM existing concurrently. The lesion most commonly misdiagnosed as a plantar wart is a verrucous melanoma because it has a wart-like projection of its surface.”

60. There was a second possibility noted by Professor W McCarthy:

“It is certainly not true that a lightly pigmented melanoma cannot become a deeply pigmented melanoma. This is indeed a common occurrence. Our agreement was that the biology of a developing melanoma does not allow non-pigmented tumour cells to become pigmented and therefore a non-pigmented melanoma will not become a pigmented melanoma.”

61. The two possibilities noted by Professor W McCarthy, namely of a verrucous melanoma and a melanoma which commenced with light pigmentation, were inconsistent with the descriptions given by the deceased and Mrs Coote. They might readily, however, have explained a misdiagnosis by the respondent. The difficulty for the appellant was that the alternative hypotheses were not necessarily demonstrative of negligence. Indeed, at the first trial, Professor William McCarthy had volunteered the following statement: [48]

“My contention, this man had melanoma from a first, a small diagnosis by the Lucas [verrucous?] element around it, no such thing two existing together, so this was a difficult melanoma, probably very difficult to diagnose, then became a very nasty melanoma, somewhere along the track evidence should have been available well before the diagnosis was made.”

48.    Tcpt, 02/03/12, p 321(35)-(40).

62. The grammar of that statement suggests some inaccuracy of transcription, but its meaning was clear enough to ensure that another parameter was open for consideration at the second trial, had either party wished to embrace it. The specific questions did not address the additional possibilities, but the judge did. After reading that opinion, the judge added two further passages from Professor McCarthy’s report of 28 February 2012 (pre-dating the first trial); (some additional words, placed in square brackets, were not repeated in the question at the second trial but are added to give context): [49]

In your report of 28 February 2012, you were talking about amelanotic melanomas and you accepted that they do occur and you said, '[It is highly unlikely that such an obvious melanoma with heavy pigmentation in March 2011 would not have some evidence of melanoma on dermoscopic examination in the two examinations in 2010 and possibly in 2009. However fully amelanotic melanoma does occur] so it is possible that even dermatoscopic examination in 2009 might not have detected characteristic pigmentation,’ and you said at the end:

‘[This melanoma was a highly advanced level IV melanoma measuring 4.4 in tumour thickness in March 2011. It would be quite surprising if there is no evidence of the melanoma six months earlier.] The melanoma may not have been clearly obvious in September 2010 but it would be surprising if there was no evidence of melanoma at that time, particularly if [the lesion was] examined with a dermatoscope.’”

He was asked if he adhered to those statements.

49.    Tcpt, 30/05/16, pp 209-210.

63. The lengthy question, involving three separate statements and without significant contextual elements, may have been confusing to the witness. In any event, Professor McCarthy’s response was as follows: [50]

“I don’t, I certainly don’t recall saying that nothing would have been detected if a dermatoscope had done it in 2009. If I actually said that, I’m surprised because what I contended all along in this debate is that this lesion has to have always been a melanoma. What I did say was that the most common mistakes with acral lentiginous melanoma and verrucous melanoma is to call it a plantar wart, because it has this hyperkeratotic surface. But in both of those, there is usually some small amount of pigment which can be detected by a dermoscopy and of course as the thing develops, you would certainly detect by any form of biopsy.

…

Right at the end, it was even bigger, so it kept growing despite being treated. So my contention is it was a melanoma all the time. It was probably subtle and it was one of these types of melanoma which have minimum pigment but if looked at properly, the pigment would have been seen.”

50.    Tcpt, p 210(8)-(13).

(b)   addressing the conflicting testimony

64. The evidence of Mrs Coote and the respondent could not stand together. Dr Kelly undoubtedly inspected the lesion; there was no reason to doubt that Mrs Coote did also. Both used the naked eye. Dr Kelly knew the significance of a black or dark pigmentation; so far as the evidence went, at that time Mrs Coote did not. Neither measured the lesion, nor took notes of what they had seen. There was no reason to expect Mrs Coote to do so, but there was reason to expect Dr Kelly to do so in the course of his professional practice, although he said he would not record the observations consistent with his diagnosis, but only unusual matters. The conflict in evidence could not be resolved by reference to contemporaneous objective circumstances.

65. There was a further element which cast doubt on the account given by Mrs Coote and her husband. It was that not only the respondent, but other practitioners viewed the lesion over the period during which the Cootes asserted that there was no change, other than an increase in size and (in the case of the deceased) some darkening. They both said that at all stages the lesion was darkly pigmented.

66. The cross-examination of Dr Hiddins at the second trial appeared to develop a particular theme, namely that Dr Hiddins was inexperienced; that she had expressed doubt to Mr Coote at the first consultation that the lesion was in fact a plantar wart; and that what happened over time was not that the appearance of the lesion changed, but that her appreciation of it changed. [51] When she used the word “speckles” in place of her earlier language of brown spots, she was cross-examined as to whether she had actually meant “freckles”. [52]

    51.    Tcpt, 25/05/16, pp 92(15)-(35); 102(10)-(18); 103(5).

    52.    Tcpt, p 103(8)-(30).

67. The written submissions on the appeal were dismissive of Dr Hiddins’ evidence on the basis of her “lack of experience at the relevant time.” How that affected her powers of observation and recollection was not explained. It was also submitted “that she did not know that ‘lentiginous’ referred to a freckled appearance” and “then volunteered that an acral melanoma was a melanoma on the palms or soles of the hands or feet. When it was suggested to her that this referred to a lesion on a hairless part of the body, she confessed to not knowing the exact definition of it.”

68. These criticisms were specious. There was no expert evidence to suggest that the term “lentiginous” referred to a “freckled appearance”, rather than having the appearance of a freckle, that is of pigmented skin. It was incorrect to say she volunteered a meaning for “acral melanoma”; she was answering a question which asked what she thought the description meant. [53] Her answer, “acral melanoma refers to a melanoma on the palms or soles of the hands and feet” was consistent with other evidence in the case. To suggest, as the cross-examiner did that it “actually refers to a lesion on a hairless part of the body”, suggesting that that meaning was inconsistent with the one she had given, was disingenuous. The etymology was correctly reflected in Dr Hiddins’ answer.

    53.    Tcpt, p 94(5).

69. The submissions further suggested that the evidence revealed “shortcomings in Dr Hiddins’ experience and medical knowledge”. She acknowledged the former, but there was no evidence of the latter. It was submitted that these facts “lessen the probability that she would have questioned the diagnosis of ‘plantar wart’ by the doctors that preceded her.” It was said that she had “conceded that she would have deferred to the opinions of more experienced doctors who had treated the lesion before her.” She did not make a concession in those terms. The relevant question and answer were as follows: [54]

“Q. You would naturally, I suggest to you, defer to the fact that other much more experienced doctors than you had treated this as being a plantar wart?

A. Yes, that would have influence on my decision.”

54.    Tcpt, p 104(1).

70. The submissions also referred to the following interchange: [55]

    55.    Tcpt, p 102(30)-(45).

“Q. You didn’t make a base measurement on the first occasion that you saw him?

A. No.

Q. Why?

A. It wasn’t part of my routine practice of treatment of warts to measure them at that point.

Q. That’s making an assumption that when someone presented to you with what was said to be a plantar wart that it was a plantar wart, wasn’t it?

A. That’s correct.

Q. That’s the only assumption which would cause you not to measure them or do anything which would give you a base from which you could follow any changes?

A. I – yes, that – ideally it would be good to measure it, yes.”

71. It is difficult to make anything of this interchange. There was no apparent connection between the nature of the diagnosis and the failure to measure. Further, this passage was unrelated to the suggestion that there had been an earlier diagnosis by a more experienced practitioner. On any view, it has little to do with Dr Hiddins’ powers of observation and recollection.

72. The submissions referred to Dr Hiddins’ evidence that when she saw the deceased on the first three consultations, the lesion had “very small brown dots scattered throughout”. She was then said to have agreed in cross-examination “that there was no doubt that when she first saw the deceased there was pigmentation which, although she denied it was ‘black’ … she eventually conceded [it] was ‘dark brown’.” There were three fallacies in this submission. The first was the attempt to conflate small brown dots with pigmentation. The second was to note the denial of Mr Coote’s evidence that the lesion was “black” without noting that she also denied that it was “a definite dark colour all over”. [56] Thirdly, she emphatically did not concede it was “dark brown”, prior to the change in colouration, well after the third consultation. The reference given to the evidence in the second trial was that the colour on 11 February was “predominately flesh coloured … with speckles.” [57] Having refused to equate what she described as speckles with freckles, and having reverted to her earlier description of “brown spots”, she agreed that the spots were “dark brown”. That evidence remained consistent at all times. To describe it as an eventual concession was misleading. It was “eventual” in the sense that it took several questions and answers to correct a line of cross-examination which was based on a false premise. Further, it could only have been a concession if it were the lesion which was “dark brown” and not the spots.

    56.    Tcpt, 29/02/12, p 190(36)-(44).

    57.    Tcpt, 25/05/16, p 103(10).

73. The appellant submitted in writing that Dr Hiddins’ observations “did not and could not contradict the evidence of the deceased and the appellant regarding pigmentation of the lesion.” That proposition appeared to be based on a confusion between the reference to brown spots and the concept of “pigmentation”. It seems that the elision was sought to be justified by reference to the fact that it is only “recent cryotherapy” which will leave the brown spots of thrombosed capillaries, and that recent cryotherapy must be less than four months old. No expert evidence was cited in support of that submission and it therefore cannot be accepted.

74. The final written submission in this regard was that the trial judge failed “to grapple with the fact that not only was the existence of dark brown spots unable to be explained by any recent cryotherapy, it was consistent with the appellant and deceased’s evidence that it was darkly pigmented and, therefore, was a melanoma when the deceased saw Dr Hiddins.”

75. Although there was a suggestion at the first trial [58] that she had an interest in giving certain evidence, in effect inconsistent with that of Mr and Mrs Coote (which she accepted), the possibility that she had consciously tailored her evidence was not expressly put to her. The trial judge discounted the challenges to the credibility of all witnesses, treating the question for him purely as one of reliability.

    58.    Tcpt, 29/02/12, p 184(15).

76. There is no doubt that the lesion was a melanoma when investigated by Dr Hiddins. She did not, initially, consider that diagnosis. However, it was her description and not her diagnosis which was relevant. Furthermore, her description was consistent with that of Dr Cooke. Dr Cooke described the appearance as “unusual”; it was the change in appearance which led Dr Hiddins, on her evidence, to call Dr Cooke in. Dr Cooke was directly asked if when he saw it, he suspected it was a melanoma. He said that he suspected “a cancer, a tumour, I would say a tumour” and when it was suggested, “not necessarily a melanoma”, he answered, “but equally a caustic burn effect and so I thought to withhold the cryotherapy …”. [59] He did not agree that the lesion, when he saw it, was as dark as it appeared in the picture taken five weeks later. It therefore could not have been black or very dark in colour when he saw it. It was not suggested to him that it had the colour of a typical melanoma.

    59.    Tcpt, p 127(35)-(43).

77. The underlying proposition presented in the written submissions for the appellant was that the respondent had failed to recognise or notice the dark (black) pigmentation in the lesion before he first treated it. That mistake was in effect repeated by subsequent practitioners who simply assumed that the original diagnosis was correct and failed to exercise independent judgment. With respect to the respondent himself, the proposition must have been either that the natural pigmentation was obscured by the course of cryotherapy, or that he had failed later to question his own initial diagnosis.

78. With respect to the respondent, the former explanation is inconsistent with the contention that the effect of the cryotherapy would have dissipated between the time when administered by Dr Wall and when Mr Coote was seen by Dr Hiddins. The period between the fourth and fifth treatments by the respondent was a longer period. The period between the fifth treatment by the respondent and the treatment by Dr Wall was a little over three months, and arguably the same problem arose in that regard.

79. There was a problem with this hypothesis, in any event. It relied upon a brief passage in a report by Dr Crosland of 1 February 2012 in which he stated:

“Cryotherapy, when properly applied, will cause rupture of the superficial blood vessels in the skin which, in turn, produces a dark red/black/brown pigmentation in the treated skin. This pigmentation will persist for some weeks ….”

80. The appellant’s case assumed that that description applied to what Dr Hiddins had described as being visible (presumably under magnification, which she used) as brown spots which she had described as having “the appearance of thrombosed capillaries”. It is by no means self-evident that that was the kind of colouration that Dr Crosland was addressing. The issue was not pursued with the specialists, although, if the contention had been foreseen after the first trial, the explanation should have been sought.

81. If, as Mrs Coote maintained, with the support of her husband, the colour of the lesion did not change throughout the period of treatment, it was necessary to explain why none of the practitioners observed it, until Dr Hiddins remarked upon the unusual appearance on the third consultation with her.

82. The respondent may have been blinded by his own initial diagnosis; but it is then necessary to reject his evidence that he would have observed such a colour on subsequent occasions on which he administered cryotherapy. On each such occasion, according to Mr and Mrs Coote, the black colouration was visible to the naked eye.

83. Even accepting that the respondent did not see something which would have contradicted his own established opinion, it is necessary to explain why Dr Wall did not observe the pigmentation. While the respondent was working in the same practice with him, he was happy to express his difference of opinion as to the effectiveness of cryotherapy. It is therefore necessary to explain why he would not have expressed an opinion as to the diagnosis, if he had noticed pigmentation, especially if it were, as Mrs Coote alleged, “black”. Nor could he fail to have looked at the lesion entirely, because he too administered cryotherapy.

80. Accepting, further, that two trained medical practitioners, whose knowledge and experience in this respect were not challenged, failed to observe or to register what was commonly regarded as “a red flag” for treatment of skin lesions, there remains the question why Dr Hiddins made the same error. The cross-examination of Dr Hiddins in this regard was somewhat double-edged. On the one hand she was challenged as to her failure to obtain a full history of prior treatment and, on the other, it was said that she had deferred to the diagnosis of a senior colleague, although it was not suggested she knew who that might be. Although she knew, by the time she gave evidence, the identity of the respondent, she expressly stated that she had had no contact with him (or with Dr Wall). It was not suggested to her in cross-examination that her training had not included the significance of black or dark pigmentation in a skin lesion. Indeed, such a suggestion would have been remarkable in a context where she took steps to obtain a second opinion and, in due course, a biopsy once she witnessed a change in colour of the lesion.

81. While it was true that she did not record the colour of the lesion in her notes, as with the other practitioners, the short answer was that it was not necessary to record the absence of those markers which would have been inconsistent with the diagnosis of plantar wart, had they been present. Further, she was able to speak with an actual recollection of the consultations and with an image of the lesion, as she saw it, in her mind.

82. Although Dr Hiddins prepared no written statement, she was alerted to the possibility that she may have failed to diagnose a melanoma, with potentially fatal results, within a few weeks of first seeing Mr Coote. She was alerted to the existence of litigation, in which she might be implicated, some 10 months later. There were good reasons why, within the limited period of her practice to that time, she would recollect the events of the consultations which had occurred only 12 months before she was required to give evidence at the first trial. Accordingly, the weight placed on her evidence by the trial judge was well warranted; the inconsistency between her evidence and that of Mr and Mrs Coote was clear.

83. From a reading of the transcript, it is by no means apparent that any greater doubt was cast on Dr Hiddins’ evidence in the second trial than had been in the first. That view is confirmed by the findings of the trial judge:

“[76]   I was impressed with Dr Hiddins. She struck me as a careful doctor although very junior at the time of these events. Of all the doctors she made the most detailed notes which are very helpful in reaching a view about the appearance of the lesion at the times she saw the deceased. Her memory of the consultations was good, perhaps aided by the fact that she was a relatively new doctor and perhaps aided by her notes. Although she had not seen a melanoma by the time she saw the deceased she had seen a number of plantar warts and she was well aware of melanoma and what to look for in a lesion. It is significant also that she examined the lesion under magnification.

[77]   I accept that Dr Hiddins had her own interests to protect because a letter claiming contribution from her had been sent by the Defendant’s lawyers. She was not, however, at all defensive in the way she gave her evidence.

[78]   Dr Hiddins’ evidence was entirely supportive of the Defendant’s assessment that the lesion was a plantar wart. In particular, her description of it and its lack of pigmentation until 24 February provides support for the evidence of the Defendant and Dr Wall as to what they saw.”

88. Finally, the evidence of Dr Cooke, treated but lightly in the appellant’s submissions, was also inconsistent with the evidence of the Cootes.

(c)   conclusions as to conflicting evidence

89. Was there any explanation for what was, to all appearances, a direct inconsistency between the evidence of four medical practitioners, on the one hand, and the patient and his wife on the other? The trial judge accepted that the explanation lay in the fallibility of human recollection. At the time that Mr and Mrs Coote made their initial observations of a small lesion on Mr Coote’s foot, they had no reason to believe that there was anything sinister or suggestive of a malignant tumour. Although Mrs Coote was later to say that the lesion did not look like a plantar wart to her, at the time when she knew that her husband’s general practitioner had so diagnosed it and was treating it, over many months, she did not even suggest obtaining a second opinion. That is not to be critical; it is merely to note that at the time the early observations were made, the whole affair was treated as mundane. When a biopsy was taken and the sinister news was revealed in March 2011, the emotional nature of the event can readily be appreciated and, indeed, was a central element in the claim brought by Mrs Coote for mental distress. It is entirely possible, as the trial judge noted, for temporal elements to become confused in recollection and for initial impressions to be overridden by subsequent events and by the very process of repeated recall.

90. Although Mrs Coote’s description of attempting to remove the black prominence, thinking it was a piece of tar, is superficially persuasive, it is not known when the image first arose in her mind. Further, there was evidence that cryotherapy could produce discoloured and flaky skin and that Mr Coote pared back the lesion with a Swiss army knife to reduce discomfort.

91. There remained the evidence of the specialists to which reference has been made. Much of the oral evidence was directed to an assessment of the pathology in an attempt to explore whether there was any objective evidence to support the existence of a plantar wart. The judge noted that the evidence of Professors Stanley McCarthy and Roger Sinclair “could not exclude the possibility of the previous presence of a wart but they thought it was unlikely.”[60] That was in part an assessment based on the structure of the excised lesion and the fact that papilloma virus nuclei were found in the area. Although Professor Stanley McCarthy said only that the existence of a plantar wart could not be excluded, Professor Sinclair was more precise, putting the possibility at around 35%.

    60. Coote (No 2) at [95].

92. Before reaching a conclusion as to this evidence, it is necessary to return to the matter which was the focus of significant attention at the hearing of the appeal, namely the location of the lesion.

(d)   location of lesion

93. The appellant submitted that the lesion was not located on the weight-bearing part of the heel and was therefore in an atypical position for a plantar wart. That, in the opinion of one of the general practitioner experts, should have led to a differential diagnosis requiring consideration of possibilities other than a plantar wart. It was said to be an issue ignored by the trial judge.

94. In fact, in reaching his conclusions on breach of duty, the trial judge noted the difference of opinion as to whether the location of the lesion was typical for a plantar wart, or atypical. He stated:[61]

“It is not possible for me to resolve this difference from anything that appears in the transcript of their evidence nor from anything in the joint report apart from observing that it is simply another factor, along with the size, colour and other appearance of the lesion as well as the opinion of the various non-expert doctors which must be taken into account.”

61. Coote (No 2) at [119].

95. That finding was not consistent with the finding which had earlier been made in considering the expert evidence of the general practitioners. For the most part, their evidence depended upon the assumptions as to the nature of the lesion when treated by the respondent. Their criticisms of the conduct of the respondent depended on acceptance, broadly speaking, of the allegations made by Mr and Mrs Coote. However, there was a difference of opinion as to whether nor not the lesion was located on a weight-bearing part of the foot. That too depended upon evidence as to position of the lesion in September 2009, which was but crudely apparent from drawings provided by Mrs Coote in the course of her evidence.

96. However, in dealing with that issue, the judge stated:[62]

“I am satisfied that the lesion was on a weight-bearing part of the foot. It was not in an atypical position on the foot to give rise to a suspicion that it may have been other than a plantar wart.”

62. Coote (No 2) at [88].

97. The justification for an affirmative finding in those terms was not entirely clear. It appears to have drawn upon the uncontroversial evidence that a relatively small lump was causing significant discomfort to Mr Coote. No doubt the lump would be more uncomfortable the closer it was to the weight-bearing part of the foot, in this case the heel. Further, the judge had earlier noted the evidence of Dr Hiddins to the following effect:[63]

“She said that the lesion was on the instep or the arch of the foot, close to the heel. It was not on the weight bearing part of the foot but close to the heel.”

63. Coote (No 2) at [61].

98. In other respects, the judge accepted the evidence of Dr Hiddins; it is not clear why he rejected that aspect of the evidence, if he did, or whether he had a different understanding of the term “weight-bearing” to the doctor. [64]

    64.    Tcpt, 25/05/16, p 87(17).

99. Curiously, it was not suggested to Dr Hiddins that the location of the lesion was a counter-indication with respect to a diagnosis of plantar wart. Nor was there any question raised with the specialists in relation to that issue. In other words, none of the specialist experts suggested that the location of the lesion should have raised a doubt as to the correctness of the diagnosis of plantar wart. That evidence came only from the expert general practitioner, Dr Lynch.

100. The list of issues for the general practitioner experts’ conclave (provided to Dr Lynch and Dr Jammal) included no reference to the location of the wart, other than being “on the sole of his left foot.” In their joint report, and in answer to a question as to whether the respondent failed to act in accordance with competent professional practice in failing to consider an ALM as a differential diagnosis, they stated that that was not so, “in circumstances where the lesion looks typical of a plantar wart (as described in the assumptions); and where the lesion lies in a typical site for a plantar wart; and where there are no atypical features in the lesion”.

101. In their joint evidence, Drs Lynch and Jammal were asked to assume that the lesion was located “right at that nexus point of the heel, the outside foot, and the arch”. [65] On that assumption, Dr Lynch said that the lesion was “not in a place that would comfortably fit with a typical plantar wart, and as such, is atypical.” The consequence, he said, was that a full history should have been taken. [66] Dr Jammal considered that plantar warts were “more likely to occur more towards the centre of the heel” but disagreed that the proposed location was “atypical, because it’s still relatively in the weight-bearing area.” [67] In the judgment following the first trial, Schmidt J (who was the only judge to hear their evidence) noted the disagreement as to whether the location of the lesion was atypical for a plantar wart. [68] Schmidt J did not resolve the conflict, presumably taking it into account as one factor relevant to the finding she made that Mr Coote did in fact have a plantar wart in September 2009. [69]

     65.    Tcpt, 01/03/12, p 212(43).

     66.    Tcpt, pp 212(50)-213(10).

     67.    Tcpt, pp 213-214.

     68. Coote (No 1) at [45].

     69. Coote (No 1) at [62].

102. Davies J also noted the disagreement, in the following passage:

“[119]   The only difference of significance between the expert general practitioners was whether the lesion was located on an atypical part of the sole of the foot for a plantar wart. Dr Lynch thought that the location was atypical and that this should have alerted the Defendant to the possibility that the lesion was not a plantar wart. Dr Jammal thought its position was typical for a plantar wart. It is not possible for me to resolve this difference from anything that appears in the transcript of their evidence nor from anything in the joint report apart from observing that it is simply another factor, along with the size, colour and other appearance of the lesion as well as the opinion of the various non-expert doctors which must be taken into account.

[120]   Nothing said by the specialist doctors assists in resolving that aspect of the matter. One matter of significance, however, is that the pain and the need to limp (according to the deceased’s evidence) points to a weight-bearing part of the foot where a plantar wart would typically appear, as I noted earlier. I am not persuaded, taking all of those things into account, that the position of this lesion on the deceased’s foot should have required a different approach by the Defendant from what he did.”

103. There is a danger in an appellate court placing weight upon a specific factor which was not fully explored in the evidence, because of the way the case was presented below. The need for caution is illustrated by a passage in the evidence of the specialist experts, in which a somewhat free-ranging discussion evolved. In answering the question posed by the trial judge and set out at [62] above, Professor William McCarthy stated: [70]

“So that is my feeling, that you cannot explain this particular man’s problems by saying he had a viral wart there which became a melanoma. That’s not biologically possible. So there must have been a melanoma either then or subsequently. If you were to examine it properly and if you had noted that it has not responded to standard therapy for a period of nine months, then you haven’t done the right thing by the patient. The other thing that hasn’t been raised here is this man’s age. It should have been a triggering that this was not just a viral wart because of the man’s age, which is a rare time to have this kind of thing, and it did not respond to numerous treatments.”

70.    Tcpt, 30/05/16, p 210(18).

104. This passage appeared to raise the possibility that Dr Kelly may have been negligent in (a) not taking into account Mr Coote’s age in diagnosing a viral wart and (b) at least in May 2010, not taking into account the failure of the lesion to respond to standard treatment for a viral wart. These statements led the specialist dermatologist, Dr Crosland, to respond in the following terms: [71]

“… I would say I’ve seen many, many, many resistant warts in people of all ages. I rarely see children in my practice, I see a lot of plantar warts in people who are 30, 40, even 50 years of age that make our treatments look ineffective. Cryotherapy, salicylic acid, other poisons you might say to be put on the skin to try and defeat the virus. They are very, very resistant lesions. There’s a saying that two-thirds of warts last two years or more, so they are difficult to treat.

HIS HONOUR: That’s even with the acid and the cryotherapy and the paring?

WITNESS CROSLAND: Correct, and particularly with regard to plantar warts because we’ve seen these photographs of the very thick outer layer of the skin, even in the normal skin let alone what has been reactive or due to the wart or due to trauma or due to the melanoma but the skin of the sole of the foot and it resists treatment very well because of that.”

71.    Tcpt, p 211(20)-(35).

105. The appellant’s submission that Davies J ignored the issue as to the location of the lesion cannot be accepted. Indeed, although some of the diagrams produced by Mr Coote and Mrs Coote were not particularly helpful, there was no real dispute as to the location of the lesion. If the precise location had been identified as an issue of importance, there would no doubt have been evidence as to why a plantar wart was less likely to occur on the instep than on the heel. There was no such evidence. In these circumstances, there was no material error in the way in which the trial judge dealt with this issue.

(e)   identification of lesion

106. Unlike Schmidt J, Davies J made no finding as to whether the lesion treated between September 2009 and May 2010 by the respondent was, or was partly, a plantar wart. In the light of the answer given by the specialist experts to question 9,[72] that negative finding was unimpeachable.

     72. Set out at [55] above.

107. That, however, did not resolve the issue as to breach of duty. The next question was whether it could be said, on the balance of probabilities, that the lesion was a melanoma at any point in the period from 3 September 2009 up to 20 May 2010. Davies J was not satisfied that a melanoma was present in that period. [73] The judge accepted that “the closer one gets to 24 February 2011 the more likely it is that [a melanoma] was present.”[74]

     73. Coote (No 2) at [121].

     74. Coote (No 2) at [103].

108. This negative finding was not determinative, but it was controversial, given the evidence of the specialist experts.

109. In this respect, the formulation of the questions considered by the conclave of specialist experts was unhelpful. The questions commenced by raising general issues as to the factors relevant to metastasis. Equally curiously, the first specific question asked whether it was possible to say that the lesion was metastatic at the various dates on which Mr Coote was seen by the respondent. One might have expected that the first specific question would be whether it was probable that the lesion was a melanoma at those dates. Question 8 asked whether, if the lesion had the features described by Mrs Coote, it was possible to say whether metastasis had taken place at the various dates on which Mr Coote was seen by the respondent. All the experts agreed that it was not possible to say. Professor William McCarthy added the following answer:

“However this lesion was definitely a melanoma in March 2011. It was a deep melanoma and it had already spread to the lymph nodes and subsequently a few months later into the general circulation of the general body.

This means that you can extrapolate back from March 2011, when we know it was a very advanced melanoma, and say that prior to that there is a high probability that this lesion was metastatic and would have spread to other organs and the closer you get to March 2011 the more secure you can be of making that assessment. So, at least three months prior to March 2011.

The further you go back, the less you are able to give a confident answer. So at May 2010 you could not give a confident answer.

The answer is no, but it is more likely then, than it was at earlier dates.”

110. Part (b) of Q 9 asked, without identifying any features of the lesion, whether it was possible to say that as at 3 September 2009 it, or any part of it, comprised an acral lentiginous melanoma. Professors William McCarthy and Sinclair answered that question in the affirmative “because we know that it was an ALM when finally diagnosed and therefore an ALM from the first presentation.” The other four experts answered the question “no.” However, question 12 asked a similar question to question 9, but included the assumption that the lesion was not dark or black in colour as at 3 September 2009. The question also asked about the relevance of the height of the lesion above the skin surface and its diameter. The fact that there were three questions in one was unhelpful, but the answer, as set out above, was unanimously in the negative, assuming that the question was to be answered “prospectively” meaning, it appears, without the subsequent knowledge as to the excised melanoma.

111. This issue was explored further in the oral evidence in the context of a discussion of the rate of growth of the tumour as revealed by the measurements taken by Dr Hiddins in February 2011 and the pathology revealed in March 2011. This discussion, initiated by Professor Coventry, led the judge to ask whether the fact that it was a rapidly growing tumour when excised allowed one to say anything about its rate of growth prior to that time. [75] Professor Coventry responded: [76]

“I’m not saying anything about the time of origin because we cannot. There is nothing we can really say about the time of origin.”

75.    Tcpt, 30/05/16, p 218(33).

76.    Tcpt, p 218(36).

112. Professor William McCarthy took up the issue, referring to the critical measurement of the depth of the tumour when it was excised. [77]

“So I’m saying that you have to go back from the 4.4 millimetre deep to try and find out when it starts and it’s very difficult not to take it even right back, because we also know that melanoma, ordinary melanoma, will be growing in the tissues for at least four – three to four months before anything appears on the surface, so the melanoma was there even before you had any chance to find it was there.

So I’m saying that if you use as much logic as we can throw into this, this lesion was there for a minimum of nine or ten months but probably for 18 months or maybe even two years.”

77.    Tcpt, p 221(5)-(12).

113. That statement was immediately followed by the judge noting that it was 4.30pm. No other member of the conclave commented on that evidence and the session terminated shortly thereafter. However, it is clear from his earlier statement that Professor Coventry, the other oncologist, was not prepared to endorse that timeframe. Accordingly, no error was demonstrated in the conclusion of the trial judge that he was not satisfied on the balance of probabilities that the lesion was a melanoma in 2009.

(f)   conclusions as to breach of duty

114. The critical issue in determining whether there had been a want of reasonable care taken by Dr Kelly in treating Mr Coote was the appearance of the lesion whilst Dr Kelly was treating him. In the course of oral submissions, senior counsel for the appellant stated: [78]

“Our case comes down to this, that there was enough in the objective material that, even if you didn't accept the reliability of Mr and Mrs Coote, as they then were, this was a melanoma from day one. It was at least pigmented, for all the reasons we've given, namely that it could not have been unpigmented then become pigmented. We say that the minimum that needs to be accepted for us to succeed from Mr and Mrs Coote is that there was a pigment in the lesion when he first went to see Dr Kelly. Whatever happened after that, we say, does not undermine the proposition that something triggered going to Dr Kelly. There's no doubt it was a lesion. The question is, did it have a black pigment? We say about that, well, if you look at the way that Mr Coote brought it to the attention of Mrs Coote, who tried to scrape it off because she thought it was a piece of tar, that's pretty strong evidence that it must have had the appearance of pigmentation.”

78.    Tcpt, CA 12/07/17, pp 19(46)-20(9).

115. Counsel also sought to obtain support from the fact that Dr Hiddins saw brown spots, which she thought were thrombosed capillaries in a wart, but in circumstances where, two months later, a biopsy showed only melanoma.

116. One question which is raised by this challenge is the extent to which this Court should be constrained in reviewing the finding of the trial judge as to what Mr and Mrs Coote observed. The judge stated expressly that he considered “that all of the witnesses were endeavouring to tell the truth in the accounts they gave of the disputed events. The issues in relation to breach have always been about reliability and not honesty.”[79] The trial judge then cited a number of judicial warnings about the fluidity and malleability of memory and “the misconception that memory operates like a camera or other device that makes a fixed record of an experience.”[80] In addition, the judge quoted the further passage from Leggatt J in Gestmin:[81]

“It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.”

79. Coote (No 2) at [99].

80. Coote (No 2) at [101], quoting Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [17].

81. Gestmin at [21].

117. Accepting the validity of these assertions, which were not challenged on the appeal, there remains a question as to the extent to which the trial judge, in a case where honesty is not in question, enjoys an advantage over an appellate court which relies upon a transcript of evidence. [82] There may be a significant doubt as to whether the trial judge hearing oral testimony which may have been affected by unconscious processes of reconstruction has much of an advantage over the appellate court reading the transcript. A trial judge will often work from a transcript in writing a judgment and, in doing so, will no doubt revisit impressions created by hearing the oral evidence. A comparison of remarks made by judges in the course of either evidence or submissions, when compared with the final judgment, will demonstrate that initial impressions are not uncommonly reformulated upon reconsideration after the hearing. In the present case, the judgment of the trial judge eschewed any express reliance upon the impression created by witnesses in the course of the hearing. Accordingly, and favourably to the position of the appellant, this Court should be willing to reconsider the factual findings made by the trial judge.

     82. Cf Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ).

118. Adopting that approach (which may unduly favour intervention) I am nevertheless satisfied that the challenges raised by the appellant must fail. There is undoubtedly a possibility that the description of the lesion given by Mr and Mrs Coote as at September 2009, that there was visible pigmentation which the respondent failed to identify, was accurate. However, I would not be satisfied on the balance of probabilities that such a finding should be made. First, the proposition that the colour did not change (except, in the view of Mr Coote, in so far as it darkened) is very difficult to reconcile with the observations of the respondent, Dr Wall, Dr Hiddins and Dr Cooke. In particular, Dr Hiddins’ evidence of the change in colouration triggering a reconsideration of her own diagnosis is powerful evidence against the acceptance of Mr and Mrs Coote’s description. Similarly, their evidence as to the size and growth of the lesion is inconsistent with Dr Hiddins’ evidence; as recorded in her contemporaneous notes, on 20 January 2011 the lesion was a “large 5mm wart [which] appears to be contracting”.

119. The specialists, including Professor William McCarthy, raised the possibility that it was, at all stages, a verrucous melanoma, that is, one having a wart-like appearance. Further, Professors Coventry and William McCarthy accepted that even a pigmented melanoma might have light pigmentation at the outset and grow darker over time.

120. Those two possibilities raised an entirely new question as to whether the respondent was negligent in failing to diagnose the lesion between September 2009 and May 2010. Professor McCarthy acknowledged the difficulty of diagnosis of a verrucous melanoma. There was no expert evidence supporting a finding that the respondent was negligent in failing to biopsy or refer for specialist attention any lesion having a verrucous appearance.

121. Except for the challenge to the judge’s finding with respect to the significance of the location of the lesion, which is addressed above, there was no challenge to the process by which he reasoned. Taking into account the whole of the evidence, it is not possible to be satisfied on the balance of probabilities that the description given by Mr and Mrs Coote of the appearance of the lesion in August 2009 through to May 2010 can be accepted. It is likely that their impressions were the result of the overwhelming effect of subsequent developments.

122. As the case was run, the appellant must fail unless the Court is affirmatively satisfied, not as a certainty, but as a probability, that the description given by the Cootes is accurate. I would not be so satisfied and accordingly would dismiss the appeal against the finding that there was no breach of duty established on the part of the respondent.

Causation

123. The case was run on the basis that the melanoma needed to be removed before it metastasised and that the harm which Mr Coote failed to avoid because of the negligence of the respondent was metastasis.

124. In this regard, the claim needed to chart a narrow course in order to succeed. If the lesion were in fact a melanoma in, say, August-September 2009, it is likely that Mr Coote was conscious of it because it was raised above the level of the surrounding skin. Indeed, that was how it was described by Mrs Coote. She described it as raised about a millimetre above the skin. [83] It was certainly high enough for Mr Coote to pare it back with a Swiss army knife.

     83.    Tcpt, 27/02/12, p 49(37).

125. Professor William McCarthy gave evidence that a melanoma will start under the skin and may grow for three or four months before there is any superficial presence. In cross-examination, prior to the first trial, Mr Coote described the height of the lesion as follows: [84]

“A. … I had a Swiss army knife, actually. I used to pare the skin back with a Swiss army knife.

…

Q. Can you give the Court an indication as to whether you were able to peel the skin off until it was flat with the surface?

A. No, it was never that flat. It was always higher than the adjacent skin around it.

Q. Can you give the Court some evidence as to how high you think – and we are talking about September/October 2009 – how high it was?

A. Maybe a millimetre, a couple of millimetres, I guess.”

84.    Tcpt, 16/12/11, p 31.

126. In his first report, dated 1 February 2012, Dr Crosland noted that evidence and stated:

“If, therefore, the plaintiff’s melanoma, at the time he and his wife noticed it in August/September/October 2009 … was raised above the surrounding skin by 1-3mm (and sufficiently prominent to cause localised pain as a result of a pressure effect when standing, walking, etc), I believe that it is entirely possible that the melanoma was already in an advanced or invasive stage and that spread or metastasis of the melanoma to lymph nodes and/or blood vessels had already occurred. If the middle figure of 2mm of elevation is taken, and assuming the correlation with the Breslow thickness to be reasonable (and this correlation strengthens somewhat as the Breslow thickness increases), the 5 year survival figure is in the order of 50% (a little greater, say 10%, if no nodes involved …).”

127. In short, to succeed, the appellant needed to establish that a melanoma existed in August 2009-May 2010, but had not then metastasised. As noted above, the specialists said that it was not possible to say whether metastasis to distant organs had taken place by 20 May 2010.

128. Question 11 was in the following terms:

“Assuming the lesion was ‘grey going on black’ or black in colour, had metastasis to distant organs occurred as at 3 September 2009?

AGREED BY ALL: The answer is ‘unknown’. The answer is no different regardless of which party’s assumptions we proceed under.”

129. The questions referred, somewhat indiscriminately, to “metastasis”, “metastatic spread or distribution”, “metastatic spread to distant organs” and, as noted before, referred somewhat randomly to possibilities, probabilities and events. The pleading identified the harm which would have been prevented by proper diagnosis as that “the melanoma would not have grown and invaded healthy tissue, thereby increasing tumour thickness and it would not have metastasised to distant organs.” The significance of these various formulations was not addressed.

130. By reference to this material, the trial judge was not satisfied that, if there had been a melanoma in late 2009, it had not already metastasised. There was some degree of awkwardness in asking whether a melanoma, which had not been shown probably to exist in that period, had been shown probably not to have metastasised. In other words, it is not clear what aspects of the evidence were to be discounted in accepting the counterfactual assumption.

131. However, on the assumption that the lesion was (contrary to the actual finding) a melanoma in September 2009, one might be justified in discounting the answers to questions 8 and 11, namely that it was not possible to say whether there had been a metastatic spread to distant organs at the relevant dates. Arguably, greater weight may be given to the affirmative answer to question 40. Question 40 and the answer were in the following terms:

“40.   Assuming the lesion was ‘grey going on black’ or black in colour, had metastasis to distant organs occurred as at 11 January 2011?

AGREED BY ALL: Given that by March excision of the lesion demonstrated a thickness of 4.4mm, it is likely that at 11 January the lesion was already thick with considerable potential for metastasis to have occurred. In general the passage of time during the existence of the lesion carries an increasing risk of metastatic disease.”

132. The only other relevant material arose from the clinical findings. The first clinical evidence of metastasis appears to have been the result of a biopsy of lymph nodes in Mr Coote’s groin, which proved positive on 6 April 2011. (No lumps had been detected by Dr Hiddins when she undertook a manual examination of the lymph nodes on 11 March 2011.)

133. On one view, the hypothetical exercise required in order to determine whether causation was established was inappropriate. The answer to question 40 set out above would support an inference that as at August 2009-May 2010, it was probable that the melanoma had not metastasised. However, there is a degree of artificiality in reaching such a conclusion and the better course is not to address the question of causation.

Damages

134. Elements of the contingent assessment of damages by the trial judge were challenged . His reasoning was, in some respects, cursory and can readily be revisited, if that were to become necessary. Neither of the substantive challenges required any further assessment of the evidence and, indeed, could be undertaken without further submissions.

Conclusion

135. The appeal must be dismissed in respect of all three proceedings; the appellant must pay the respondent’s costs in this Court.

136. MEAGHER JA: I agree with Basten JA.

137. SIMPSON JA: The relevant facts and circumstances are comprehensively set out in the judgment of Basten JA which I have read in draft. I will restate only so much as is necessary to express my reasons for arriving at the same result.

138. In my opinion, the key question, on which all else hangs, is the appearance (in particular, the colour) of the lesion on Mr Coote’s foot, not only on 3 September 2009 when he first consulted Dr Kelly, but at all times thereafter. It was common ground that, if the lesion had a coloured or pigmented appearance, Dr Kelly’s undoubted duty of care required that he refer Mr Coote for further investigation. What such investigation would or might have revealed cannot now be known.

139. The evidence of Mrs Coote was that, when her husband first had her look at his foot to see what was causing his pain, she saw:

“… a little black mark about the size of a match head …”

She thought:

“… it was a piece of black tar and went to scrape it off with my fingernail …”

140. That evidence was given substantial corroboration by Mr Coote’s account of what his wife told him when she looked at the foot. He recorded in his statement that she said:

“There is a dark circular mark, about the size of a match head, between the heel and arch of your foot which is raised above the adjacent skin.”

141. Thereafter Mrs Coote insisted that throughout the course of treatment (from 3 September 2009 until 16 March 2011, when the lesion was finally diagnosed as a melanoma) it did not change colour. Both Mr and Mrs Coote were subjected to searching cross-examination and adhered to their evidence. Despite the cross-examination, Mrs Coote never departed from her evidence of the colour of the lesion.

142. Since no credit issues emerged, and no specific question (other than the accuracy of her description) casting doubt on her reliability was identified, it would, ordinarily, be difficult to see why her evidence should not be accepted.

143. It was, however, in conflict, not only with the direct evidence given by Dr Kelly, but with the inferences plainly available from his evidence. His evidence was that he had no real recollection of the initial consultation with Mr Coote, but that he was aware of the significance of colouration or pigmentation in a lesion in the foot, that he was aware that melanoma could occur in a foot and that, had he observed pigmentation when he examined Mr Coote’s foot on 3 September 2009, he would have regarded that as a “red flag” (and, presumably, have taken steps for further investigation).

144. The obvious inference, therefore, was that there was no colouration or pigmentation at that time, or on the subsequent occasions when he applied cryotherapy. Obviously, in order to apply cryotherapy, he had to examine the lesion. This strengthened the inference that there was no colouration.

145. It may be thought that direct evidence, unshaken by cross-examination, should, in the event of a conflict, be preferred over inferential evidence. Application of that principle (if it is a principle) would result in acceptance of Mrs Coote’s description and rejection of the inference sought on behalf of Dr Kelly to be drawn. It cannot always be the case, however, that direct evidence is to be preferred over inferential evidence.

146. In this case, to conclude that the lesion had the colour described by Mrs Coote would be to conclude that, on five occasions between 3 September 2009 and 20 May 2010, Dr Kelly failed to observe that the lesion he was treating was black. It is also to conclude that, on 2 September 2010 when Dr Wall examined Mr Coote’s foot, he, too, failed to observe the black colouration. Such a conclusion is as unpalatable as rejecting Mrs Coote’s description of what she claimed to have seen. It is inherently unlikely, but not beyond the realms of possibility, that two apparently competent general practitioners failed, on a total of six occasions, to observe a significant warning sign. Given the competing evidence, it was at trial, and is on appeal, necessary to subject the evidence on both sides to scrutiny.

147. The primary judge was confronted with a stark choice:

• to accept the clear, unequivocal and unshaken evidence of Mrs Coote (supported to an extent as it was by that of Mr Coote); acceptance of that evidence necessarily entailed the finding that Dr Kelly had, on five occasions, inspected Mr Coote’s foot and failed to observe a dramatic and important sign, and that Dr Wall had failed in the same way; or

• to draw the inference proposed on behalf of Dr Kelly, that it was improbable that he (repeatedly) and Dr Wall had failed in their duty to Mr Coote by overlooking an important and obvious sign, and that, therefore, the lesion did not have the appearance attributed to it by Mrs Coote.

148. The primary judge opted for the latter. He was “entirely satisfied” that when Drs Kelly and Wall saw the lesion it had the appearance of a plantar wart, was not pigmented and was certainly not black. In reaching this conclusion he relied, in part, on evidence given by Mrs Coote that Mr Coote had (or had developed since the diagnosis of melanoma) a faulty memory “for events”. When that evidence is examined, it gives, on my opinion, only slight support to the ultimate conclusion. What Mrs Coote said was that Mr Coote’s memory for the timing of events was (or had become) faulty. That cannot significantly affect the central part of Mr Coote’s evidence, which was that, on the first occasion he had asked Mrs Coote to look at his foot, she had given the description set out above that she did. That, in turn, was firmly anchored in time by reference to the first consultation with the Dr Kelly. Further, the bulk of the evidence of colouration was given by Mrs Coote, and, in any event, issues of timing did not arise because she said that the lesion never changed colour.

148. A second reason given for accepting the evidence of Dr Kelly over that of Mr Coote related to inconsistencies in the evidence given by Mr and Mrs Coote concerning the size and shape of the lesion.

149. I have come to the view that the issue is concluded by the evidence of Dr Hiddins and Dr Cooke. Both gave clear descriptions of the lesion they observed, long after the initial diagnosis made by Dr Kelly of plantar wart. Dr Hiddins described it as “predominantly flesh coloured”, with very small brown dots scattered throughout when she first saw it on 11 January 2011. Dr Cooke described it as:

“… a moist fleshy pearly looking lesion …”

151. Neither description was such as convincingly to suggest melanoma, although Dr Cooke was sufficiently concerned to propose (although not immediately or urgently) further investigation if the lesion had not “settled” within a week or two, and contemplated melanoma as a differential diagnosis, and Dr Hiddins was sufficiently concerned to call in Dr Cooke for a second opinion from a more senior and experienced colleague. The very fact that Dr Hiddins took that step suggests that each would have paid particular attention to the appearance of the lesion.

152. One of the medical specialists (Dr W McCarthy) was convinced, by extrapolation from the ultimate diagnosis of melanoma, that the lesion had always been a melanoma. That was not a consensus view among the medical practitioners, but, in any event, does not answer the key question, which is whether the appearance of the lesion was such that it should have alerted Dr Kelly to the possibility of melanoma.

153. Mrs Coote’s case on that issue depended entirely on acceptance of her description of the lesion. One telling part of her evidence was that the lesion retained its black colour throughout, even at the time of the examinations by Drs Hiddins and Cooke. Her evidence in that respect was directly contradicted by those medical practitioners. It is that that renders her description of the lesion at earlier times suspect. If she was wrong (as it was and is legitimate to conclude that she was) about the appearance of the lesion in 2011, then she equally may – or must – have been wrong at earlier times.

154. It is not necessary nor possible to find an explanation for what was, in my view, mistaken evidence by Mrs Coote. As earlier mentioned, her credibility was not challenged, and, in particular, it was never suggested that she had fabricated her evidence in order to substantiate her case. Why she was mistaken remains a mystery. But the conflict in the evidence establishes that she was.

155. In these circumstances, the finding that the lesion did not have an appearance as described by her cannot be said to have been wrong.

156. In other respects I agree with the judgment of Basten JA.

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Endnotes

Amendments

10 August 2017 - Coversheet - correcting name of barrister

Decision last updated: 10 August 2017