Davy v Minister of Health - [2008] WADC 176

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DAVY -v- MINISTER OF HEALTH [2008] WADC 176

CORAM: WAGER DCJ

DELIVERED : 19 DECEMBER 2008

FILE NO/S: CIV 362 of 2007

BETWEEN: MARLENE JOYCE DAVY
Plaintiff
AND
MINISTER OF HEALTH
Defendant

Catchwords:

Tort - Duty of care of a medical practitioner - Patient and doctor relationship - Turns on own facts

Legislation:

Civil Liability Act
Evidence Act 1906
Hospital and Health Services Act 1927

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Bradford & Co
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Chappel v Hart (1998) 195 CLR 230
Newman v Nugent (1992) 12 WAR 119
Perre v Apand Pty Ltd [1999] 198 CLR 180

WAGER DCJ: The plaintiff was under the care of Sir Charles Gairdner Hospital's orthopaedic outpatient clinic ("the clinic") following a total knee replacement of her left knee on 5 February 2004.
In June 2005 as a result of a fall the plaintiff developed a lump on her left knee. At an appointment with her general practitioner Dr Hewett in late June/early July 2005 Dr Hewett advised her to re‑attend his surgery in order to telephone the clinic to arrange for an urgent appointment in relation to her knee in light of the total knee replacement. The plaintiff claims that she was present and overheard a telephone call made by Dr Hewett to the clinic on 4 July 2005 when her details were provided and that Dr Hewett indicated to a woman that she needed an urgent appointment. The plaintiff says that the clinic was to contact her in relation to an appointment time.
The plaintiff claims that there was no contact from the clinic. The plaintiff therefore telephoned the clinic repeatedly in mid to late July 2005 in order to arrange an appointment. An appointment was arranged for her by the clinic for 12 August 2005 however the plaintiff claims that she was unaware of this date and continued to call the clinic through mid to late July to arrange for an appointment time. On 2 August 2005 an infection in the plaintiff's left knee caused the skin over the knee to break and to ooze pus. The prosthetic implant was visible. On 4 August 2005 the plaintiff self admitted to the Sir Charles Gairdner Hospital emergency department as a result of her concerns about her knee. The left knee was infected and as a result of the infection the plaintiff required prolonged treatment including surgery. She now has a permanent disability in her left knee.
The plaintiff claims that as a patient of the clinic the staff of the clinic owed her a duty of care. She submits that her treatment, disability, pain and suffering could have been avoided had the clinic staff made an appointment for her to be examined within a reasonable period from 4 July 2005. Alternatively, the plaintiff claims that the delay in treatment denied her the opportunity of a better outcome for her left knee.
The defendant submits that there is no reliable evidence that a telephone call was made to the clinic on 4 July 2005 as alleged. The clinic records show that the plaintiff was allocated an appointment on 18 July 2005 for 12 August 2005. The practice of the clinic was to advise the patient to go to the emergency department or to see her general practitioner if urgent problems arose prior to the appointment time. The defendant submits that the plaintiff saw her general practitioner on an almost twice weekly basis from the date of the detection of the lump in her knee until two days prior to her admission to the emergency department but that the general practitioner never made an attempt to contact the clinic. It is submitted that there is no evidence of a breach of the duty of care that the defendant owed to her.
It is accepted that as a result of her left knee infection the plaintiff had to undergo protracted medical procedures. It is conceded that this was regrettable however it is submitted that there is no causal link between the treatment she ultimately required and the defendant's duty to her.

The evidence – the plaintiff Mrs Davy

Mrs Davy is a 63 year old war widow. She raised three children from her first marriage. Her second husband died in 2004. Mrs Davy worked productively for all of her life up until she was aged in her late fifties.
Mrs Davy suffers from a number of health problems including type 2 diabetes, rheumatoid arthritis and a difficulty with her wrist consistent with carpel tunnel syndrome. She has suffered a heart attack, had a twisted bowel requiring the use of a colostomy bag, suffers whiplash and back pain that arose from a motor vehicle accident in 2002 and experiences depression and sleeplessness aggravated by the death of her husband and by pressures from her step‑daughter. In 2007 she underwent a total knee replacement of her right knee. Medication and medical referrals relevant to her conditions were provided for her by her general practitioner Dr Ian Hewett from the 1980s until December 2006 when Dr Hewett died.
Mrs Davy has experienced left knee problems since the 1980s culminating in the removal of her left kneecap. She was referred to Professor Nivbrand, orthopaedic surgeon by Dr Edelman in 2003. Professor Nivbrand who is the head of an orthopaedic team that operates at the clinic performed a total knee replacement on the plaintiff on 5 February 2004. The plaintiff was seen at the clinic on a regular basis by Professor Nivbrand and registrars who were part of his team after her surgery on 5 February 2004. In April 2005 a registrar at the clinic assessed that the plaintiff's total knee replacement was progressing well and booked her next appointment for assessment for February 2006 effectively for a yearly check up.
Accordingly it is submitted that there was an ongoing patient and doctor relationship between Mrs Davy and the clinic at Sir Charles Gairdner Hospital its servants and agents pursuant to the Hospital and Health Services Act 1927.
Following surgery to her left knee in 2004 Mrs Davy suffered a number of falls including a fall in January 2005 in Victoria that caused an abrasion on her left knee that required suturing. No permanent injury resulted from this fall.
In about mid‑June 2005 Mrs Davy tripped and again hit her left knee. The skin on her knee did not break but it had the appearance of a rash like abrasion. Mrs Davy estimates that it was some days to about two weeks later that she noticed that a lump that is described as being the size of a cherry appeared on her left knee. Mrs Davy says that she brought the lump on her knee to Dr Hewett's attention at her appointment on 2 July 2005, however, medical notes of Dr Hewett record a lump on the knee one week earlier being 25 June 2005. Mrs Davy concedes that it is possible that the doctor noted the lump on 25 June 2005 however she says that the lump was not sore at that time. Mrs Davy recollects that by 4 July 2005 the lump was warm and that by 10 July 2005 it was both warm and painful.
The plaintiff states that because her appointment with Dr Hewett on 2 July 2005 fell on a Saturday which was a day when a call could not be made to the clinic Dr Hewett told her to come into his surgery on Monday 4 July 2005 so that he could telephone the clinic to arrange an appointment for her. Dr Hewett's medical notes for 2 July 2005 do not refer to Mrs Davy's knee. No appointment nor any attendance at all on 4 July 2005 is recorded in Dr Hewett's notes nor has an attendance on that date been the subject of any payment or claim through the Department of Veterans' Affairs, the relevant authority responsible for Mrs Davy's medical care in light of her status as a war widow.
Mrs Davy's evidence in chief in relation to the telephone conversation of 4 July 2005 is as follows (T28):
"Tell us what he did? --- He asked me for the number to Sir Charles Gairdner Hospital. I gave it to him. Then he rung them – he rang Sir Charles Gairdner. He put the phone on speaker phone so I could hear and he asked to ‑ to be put through to the orthopaedic section and he asked for ‑ the person on – woman on the phone could he – could he please – please speak to an orthopaedic surgeon as he was worried about my knee and it needed to be seen to urgently.
To your knowledge did he speak to an orthopaedic surgeon?---No, he did not.
Who did he speak to?---I don't know who the person was on the other end of the phone, but I – it was ‑ wasn't a nurse or anything, I presume it was just a receptionist that they have there.
What was the gender of the person on the other end of the phone?---I do not – it was her ‑ she was a – it was a female, that's all I know.
…
And what did she say in relation to Dr Hewett's request?---That he – she was – they were flat out, they were very busy and they were very short staffed and she would get back – would get back in touch with me.
Did you supply a telephone number for her to get in touch with you?---Yes, I did.
Did Dr Hewett do that on your behalf?---Yes, he did."
Mrs Davy states that she was not contacted by the clinic on 4 July 2005 or thereafter.
After 4 July 2005 Mrs Davy saw Dr Hewett on 9 July and 13 July 2005 however he did not look at her knee. She says that on 16 July 2005 he examined her knee again although this is not recorded in her medical notes. The plaintiff says that Dr Hewett said he attempted to call the clinic after 4 July 2005. There is no independent record of telephone calls and the evidence of alleged calls is hearsay. It is the plaintiff's evidence that no appointment had been made for her by the clinic at this time.
Mrs Davy's Telstra telephone records show that she called the general number of Sir Charles Gairdner Hospital on 16 July 2005. She agrees that this date was a Saturday and concedes that the clinic was only staffed from Monday through to Friday so that no appointment could have resulted from her call. She rang the general Sir Charles Gairdner Hospital number again two days later on 18 July 2005 at 8.29 am. This is the first record of a call to the relevant number in July 2005 on a date when the clinic was open. The records of the clinic from that date that were entered by Ms Holdcroft, receptionist, indicate that an appointment time was scheduled for Mrs Davy on that date, 18 July 2005, at 8.32 am (which is three minutes after Mrs Davy initiated the call), for a date of 12 August 2005. However, it is Mrs Davy's evidence that she was not advised of an appointment time on 18 July 2005 and was not given an appointment on that date. The plaintiff says that she called the general Sir Charles Gairdner Hospital number again on 22 July and 23 July (a date that she agrees was a Saturday and therefore the clinic would not be operating), on 25 July and on three occasions on 31 July (a date that she agrees was a Sunday and therefore the clinic would not be operating). The Telstra records show that the plaintiff also called the general Sir Charles Gairdner Hospital number on 1 August 2005 when she says that she was advised that an appointment for 12 August 2005 had already been set. She called again twice on 3 August 2005.
In evidence in chief in relation to the telephone calls she says: (T30)
"Well can you just give us the gist of what was said, in those telephone calls?---I said that my GP said that it was imp ‑ urgent that I see Professor Nivbrand over my knee, because it – he was worried and that something must have gone wrong after I had the fall, and could I please have an appointment as soon as possible.
…
Did you have any luck of getting an appointment on each of the occasions? --- No, I did not."
At (T31):
"What did they tell you when you phoned and asked for an appointment on so many occasions?---They said---just said they would get in touch with me, but they never did."
Dr Hewett's medical records show that Mrs Davy had also seen him on 20 July, 23 July, 30 July and 2 August 2005. On 2 August 2005 Mrs Davy received a card in the mail confirming an appointment at the clinic for 12 August 2005. Later on 2 August 2005 her knee, which she described as becoming redder and more painful, burst. She was assisted by a neighbour to the pharmacy. The pharmacist bandaged her knee. At (T32) she says:
" … and said to me I should go to the doc – to hospital, I said no I've got an appointment and I just said I would see how I go tonight."
Mrs Davy's evidence in chief in relation to 3 August (T32) is:
"What happened?---I rang up Sir Charles Gairdner and told them that my knee had broken open and could I please get into see somebody and they told me that it was no good coming there at that time, because there was nobody in the orthopaedic section.
…
So what did you eventually then do?---I rung the Sir Charles Gairdner up; the orthopaedic section on 3 August and said to them, 'Can you please move my appointment quicker, because', I said, 'my knee's broken open'.
Sorry you told us that. So, they didn't move it forward on that day?---No they did not.
So what did you do?---I said to them, 'Well in that case I will come into the emergency department', but as it was so late that day, I said to my girlfriend, Beryl, would she please drive me in the next day, which was on Thursday, 4 August."
The plaintiff was seen by the registrar and Dr Cooper on 4 August 2005. Following admission on 4 August 2005 she was seen by Professor Nivbrand on 5 August 2005.
Although Professor Nivbrand subsequently washed out her knee and commenced an aggressive regime of intravenous antibiotics the infection was so serious that the knee prosthetic ultimately had to be removed and replaced.
In cross‑examination the plaintiff agrees that her evidence in chief is inconsistent with her earlier pleadings and that it is inconsistent with her answers to the defendant's interrogatories filed on the plaintiff's behalf dated 5 November 2007 ("the answers"). Contrary to her evidence the plaintiff's answers include that her knee was already painful on 4 July 2005 (interrogatory 5). In relation to the call made on 4 July 2005 her answer to interrogatory 4(c) notes:
"Dr Hewett rang SCGH while the plaintiff was with him. After the telephone call Dr Hewett said that SCGH had no appointments available and that SCGH would call her to make an appointment within the next day or so."
She denies having seen any other medical practitioner in the intervening period.
In her answer to interrogatory 28 the plaintiff refers to her knee oozing yellow fluid on 2 August 2005. Answer 28(c) notes:
"The plaintiff advised the pharmacist that she had an appointment at Sir Charles Gairdner Hospital on 4 August 2005".
In the context of an appointment on 4 August 2005 the plaintiff's answer to and the interrogatory 38(e) is as follows:
"What was the substance of each and every telephone discussion (to Sir Charles Gairdner Hospital made between 2 July and 4 July 2005)?
Answer: 'On 23 July the Plaintiff complained that she had not heard from Sir Charles Gairdner Hospital pursuant to Dr Hewett's call on 4 July and that she was concerned about the ongoing condition of her knee. She was advised that somebody would call to confirm a time for an examination.
On 25 July the plaintiff complained that her knee was still sore and that she still had not been given a date for an examination. She was given an appointment for 4 August. The plaintiff told the staff that that date was too far away given the condition of her knee. The staff at Sir Charles Gairdner Hospital told her that that was the best they could do. On 30 July the Plaintiff told the staff at Sir Charles Gairdner Hospital that her knee was becoming very painful and felt hot. She was told that she simply had to wait for her examination on 4 August.
On 1 August the Plaintiff told the staff at Sir Charles Gairdner Hospital that the lump on her knee had started to ooze. She was told by staff at Sir Charles Gairdner Hospital that it was too late in the afternoon to see an orthopaedic specialist and that she must wait for her appointment on 4 August.
On 3 August she telephoned and told staff at Sir Charles Gairdner Hospital that the pain and ooze from her knee was getting worse. She was told that there were no orthopaedic specialists available. She telephoned again in the afternoon on 3 August and was told to try calling later in the event that a specialist could speak to her between patients."
In cross‑examination it was put to the plaintiff that the first time that she said that she had heard the telephone conversation that allegedly occurred on 4 July 2005 between Dr Hewett and the clinic via a speaker phone was in her evidence in chief. She agreed with this proposition. She could give no explanation for her assertion in her answers to interrogatories that Dr Hewett had left Australia on 9 July 2005 effectively leaving her on her own in relation to the care of her knee for nearly four weeks prior to her admission to Sir Charles Gairdner Hospital. The plaintiff could give no explanation for her answer to interrogatories that stated that she had received notification of her medical appointment on 25 July 2005 over the telephone. She agreed that there was no mention of the receipt of the card on 2 August 2005 to confirm the clinic appointment in her answers to interrogatories nor was there any explanation as to why she believed her appointment was on 4 August 2005. The appointment date was pleaded originally as 5 August 2005. The plaintiff provided no explanation for this pleading. The only relevance of the date of 4 August 2005 in the plaintiff's evidence is that it was the date of her admission through the emergency department. The plaintiff does not mention 5 August 2005 in her evidence.
The plaintiff concedes in cross‑examination that her allocated appointment was eight days after 4 August 2005. Mrs Davy could not give any explanation for the discrepancies between her evidence and the answers to interrogatories nor for the discrepancies between her evidence and the case that was originally pleaded on her behalf. The plaintiff said: "I just got mistaken".
In cross‑examination when asked about her use of benzodiazepines Mrs Davy states that she had had the drugs prescribed approximately eight years ago. She agrees, however, that the prescription of benzodiazepines arose following her husband's death and that her husband died only four years ago. Documents of the Department of Veterans Affairs (Exhibit 9) set out the pharmaceuticals dispensed to Mrs Davy. She agrees that on 25 June 2005, the date upon which Dr Hewett noted the lump in her knee, she received a prescription for Ciprofloxacin, an antibiotic. A further prescription for Ciprofloxacin was dispensed on 1 July 2005. Another antibiotic, Cephalexin, was dispensed on 9 July 2005. Suprofloxin was also dispensed on 13 July 2005.
Mrs Davy says that Dr Hewett had prescribed the antibiotics in relation to an ear problem. The medical notes of Dr Hewett record an ear problem on 25 May 2005 which is approximately one month prior to the antibiotic prescriptions. There is no subsequent entry in the medical notes in relation to an ear problem nor is a prescription for antibiotics noted between the dates of the notation relevant to the ear complaint and the notation in relation to the lump on the knee.
The plaintiff was prescribed a number of other drugs including Temazepam, Diazepam, Nitrazepam and Tramadol Hydrochloride during July 2005. Mrs Davy says that she used the benzodiazapines as prescribed and would take the Nitrazepam on alternate days. She agrees that she would usually consume three to four cans of mid‑strength beer each day while taking her prescription drugs however she took the drugs at night and therefore did not consider that the combination of beer and prescription drugs affected her adversely. Specifically Mrs Davy denies experiencing any confusion or difficulty with her memory in relation to July 2005 as a result of the prescribed medication or as a result of a combination of alcohol and the medication.

In cross‑examination in relation to the date of the appointment allocated by the clinic (T72) it is suggested to Mrs Davy that she is confused:
"Can I suggest that you're confused about this? ---Well, wouldn't you be if you were in pain?"
The plaintiff in cross‑examination however later denies any confusion or memory difficulties in relation to the dates and the events.
The plaintiff says in evidence that she received a Pethidine injection for pain in her knee on 2 August 2005 from Dr Hewett. Dr Hewett's medical notes do not refer to him administering a Pethidine injection on 2 August 2005 and the answers to interrogatories note that Mrs Davy believed that she did not see a medical practitioner at all on 2 August 2005 (and accordingly she would not have received any medical treatment on that date).
The plaintiff's evidence in cross‑examination in relation the circumstances of her admission to Sir Charles Gairdner Hospital on 4 August 2005 conflicts with her answer to interrogatory 38E in which she positively states that she was advised by Sir Charles Gairdner Hospital that she should try calling again late on the day of 4 August 2005 in the hope that a specialist would speak to her between patients. There was no mention of a suggestion by Sir Charles Gairdner Hospital staff that she attend at emergency in her answers to interrogatories. Specifically her answers to interrogatories are in conflict with her evidence at (T77):
" … I refused to go in on the Tuesday night and the Wednesday it was when I rung them up and said, 'I am in pain, it has broken open and I need to come in' and they said, 'Well, we're – there's nobody here in Sir Charles Gairdner, in orthopaedics at the time for me to see, I could go to emergency.'. And I said, 'No, I will not come in because it was 4 o'clock at night – in the afternoon, you do not find an orthopaedic specialist on the wall – on call at that time of day at Sir Charles Gairdner.'
…
Wasn't it the case that when you rang Sir Charles Gairdner Hospital on some earlier occasions, they told you to go to emergency?---No it was only that once.
Only that once?---Yes
And you refused?---Yes.
If they'd you that before, on these other occasions you say you rang, would you have refused then?---No.
…
No, no. If they told you that they couldn't get an orthopaedic appointment any earlier, if you're knee is a problem come into emergency, would you have gone?---I didn't think it was so bad, so no."
Mrs Davy was also cross‑examined in relation to the identity of the person or people with whom she spoke when she called Sir Charles Gairdner Hospital in July and August 2005. The answer to interrogatory 38E is to the effect that on 23 July 2005 she called Sir Charles Gairdner Hospital and complained that she had not heard from the clinic in response to Dr Hewett's call on 4 July 2005 and that she was then advised that somebody would call to confirm a time for an examination. This proposition was the subject of cross‑examination. At (T79):
" … On 23 July I had not heard from Sir Charles Gairdner. I might have rang them.
Well, that's what I am asking you. Did you ring them and did you say that?---I was ringing them all the time, consistently.
Did you ring them on 23 July and get put through to the orthopaedic department, as you say there?---Yes.
Are you sure?---Yes.
23 July is a Saturday?---Yes, I know. I realised my mistake when I did it.
You wouldn't have got through to the orthopaedic department, would you?---No. They put me through to – just – I presume it was outpatients, as far as I know because they didn't hold me on the switchboard. They just put me through to some other department."
The plaintiff does not give any evidence in relation to the details of the telephone connections, the identity of the speaker or speakers or the details of the speaker's response to her telephone calls throughout July and August 2005.
This is not a case where the discrepancies between the answers to the defendant's interrogatories and the evidence in chief arise as a result of the plaintiff having been deprived of the opportunity of refreshing her memory prior to swearing the answers to interrogatories on 7 November 2006. The answers given in evidence in chief paint a totally different picture from the answers that the plaintiff gave in response to the interrogatories.
Essentially the version of events described by the plaintiff in her answers to interrogatories is:
1.Dr Hewett told the plaintiff about the substance of his telephone call to the clinic after he had made the call;
2.Dr Hewett left to travel overseas, one week after 9 July 2005 therefore leaving the plaintiff with no medical support after that date;
3.the plaintiff did not consult Dr Hewett or any other medical practitioner after 9 July 2005 until her date of admission to Sir Charles Gairdner Hospital through the emergency department on 4 August 2005;
4.On 25 July 2005 the plaintiff was given an appointment date by telephone from the clinic for 4 August 2005;
5.Despite her knee oozing she decided to wait for medical treatment until her appointment date; and
6.It was not suggested to her that she go to the emergency department prior to her date of admission.
In contrast the plaintiff's evidence in chief is:
1.She possibly told Dr Hewett about her knee on 25 June 2005 at a time when the knee was not painful;
2.She saw Dr Hewett on a twice weekly basis after 25 June 2005 and this included an appointment on 2 August 2005 being two days prior to her hospital admission date;
3.Dr Hewett re‑examined her knee on 16 July 2005, however, he did not ask her about it nor consider it further at any of the other eight appointments from 16 July 2005 to 2 August 2005;
4.Dr Hewett did not prescribe any medication relevant to the knee;
5.On 2 August 2005 the plaintiff received a card in the mail from the clinic confirming an appointment of 12 August 2005, that is eight days after her admission on 4 August 2005; and
6.On 3 August 2005 the plaintiff was advised to go to Sir Charles Gairdner Hospital emergency department however she chose not to. She arranged to attend the emergency department on the next day being 4 August 2005.

Evidence relating to Dr Hewett

Dr Hewett died in December 2006.
Dr Hewett's medical notes in relation to the plaintiff are contained in Exhibit 6. The notes are received into evidence because they are a business record as defined in s 79B Evidence Act 1906. The notes are handwritten and appear to have been made contemporaneously. The notes provide very brief details of the nature of the plaintiff's complaint and of the medical treatment performed at the medical appointment.
A letter from Dr Hewett to Mr Holt, orthopaedic surgeon dated 30 January 20006 (Exhibit 1 p 6) and a letter from Dr Hewett to Mr Bradford of Bradford and Co. dated 8 July 2006 (Exhibit 11) have been admitted into evidence pursuant to s 79C(ii)(a) Evidence Act 1906. The letters are in similar terms.
The matters to be considered when assessing the weight and effect of evidence admitted under s 79C are set out in s 79D Evidence Act 1906.
"(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by s 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to accuracy or otherwise of the statement, and, in particular –
(a)to the question of whether or not the statement was made contemporaneously with the occurrence or the existence of the facts stated; ‑
…
(c)to the question of whether or not the information in the statement was of a kind which was collected systematically; ‑
…
(f)where the statement reproduces or is derived from any information to the reliability of the means of reproduction or derivation."
The relevant portion of the letter (Exhibit 11) states:
"Marlene has suffered a severe complication to her left knee replacement surgery which she had at Sir Charles Gairdner Hospital in 2005.
She suffered a methicillin resistant staphylococcus aureus ("MRSA") infection in the prosthesis in July/August 2005 requiring extensive treatment. Except for the intervention of Michael Holt, she may well have finished with a stiff knee or even worse an above knee amputation of the left leg.
This complication arose from the subluxation of the patella implant of knee. I first noticed this on a Saturday morning in 2 July 2005. Initially I thought it was a collection of pus but closer examination revealed it to be the subluxation or dislocated patella. It put the skin on great stretch.
On Monday morning I rang the team registrar, Dr Cooper to notify him of the findings suggesting she should be reviewed as soon as possible. The weeks went by and Mrs Davy was not contacted by the hospital. In the meantime, the patella remained dislocated compromising the circulation of the skin which finally broke down allowing skin organisms to enter the wound and infect the prosthesis.
She was admitted to Sir Charles Gairdner Hospital on 4 August 2005 in my absence overseas in the Seychelles and a long saga ensued. She was very fortunate not to lose her leg.
All this could have been avoided had the registrar acted upon my request for her to review urgently ... ."
The content of the letters is not corroborated by the patient's medical notes. Dr Hewett wrote that the surgery to the left knee occurred in 2005. In fact the original surgery was carried out in February 2004.
Dr Hewett described the complication as arising from the subluxation of the patella implant of the knee. Professor Nivbrand's evidence is that Dr Hewett's description is wrong. A subluxation of the patella implant was not the cause of the problems that arose in 2005.
Dr Hewett referred to first noticing the knee on 2 July 2005. His medical notes refer to a lump on the knee on 25 June 2005. There is no reference to the knee being examined or noted by him on 2 July 2005.
Dr Hewett stated that on Monday morning (presumably the Monday after 2 July 2005) he telephoned the clinic team registrar Dr Cooper. There was no medical record of Mrs Davy attending Dr Hewett's surgery on 4 July 2005 nor is there any record in the medical notes of a telephone call being made at that time or on any other day to the team registrar.
Dr Hewett stated that he rang Dr Cooper to notify him of the finding. It is agreed that on 4 July 2005 Dr Cooper was a patient in a hospital in Queensland. The medical notes tendered at trial disclose that Mrs Davy did not have any dealings with Dr Cooper prior to her attendance at the emergency department on 4 August 2005. No notes are recorded as to the identity of, or the circumstances in which Dr Hewett communicated his concerns about Mrs Davy to the registrar who, he states, could have acted upon his request. Of course, I could not consider Dr Hewett's demeanour, nor could I consider his response to cross‑examination, nor the explanation he may have given in relation to the contents of his letter dated 8 July 2006.
In the circumstances the letters are of virtually no evidentiary assistance in relation to the issues to be determined and I find that they have very limited weight.

Medical evidence ‑ Dr Golledge

Dr Golledge, a consultant at Sir Charles Gairdner Hospital for 18 years, who specialises in microbiology and infectious diseases and who has a special interest in surgical infections who was called by the plaintiff saw Mrs Davy after she was hospitalised in August 2005.
He and his team managed Mrs Davy's knee aggressively with intravenous antibiotics in an attempt to try and salvage the prosthesis but the attempt was unsuccessful.
In evidence he said (T136):
" … There are a number of different ways but in Mrs Davy's case, the most likely scenario is a fall. That fall then inducing some trauma to the skin. That trauma then allowing skin bacteria to be driven into the deeper tissues and then subsequently seating the knee prosthesis. And then slowly evolving – or sometimes rapidly evolving, depending on the type of organism – into a full blown infection with formation of biofilm and slime on the prosthesis. And by the time of presentation, often a great deal of difficulty in eradicating that infection. So, we all have a lot of bacteria on our skin. Mostly staphylococci. And in Mrs Davy's case it is almost certain that one of the skin staphylococci or a number of skin staphylococci got into the knee prosthesis and seated the prosthesis and the infection evolved from there."
He clarifies that a lesion or trauma is not needed for skin staphylococci to enter into the prosthesis. He confirms that a haematoma makes an infection more likely however a break in the skin, a lesion or a haematoma is not necessary for an infection to occur.
Dr Golledge says that if a lump is tender and warm and the knee is extremely painful or the patient has systemic signs then they would all be worrying signs that the prosthesis may be at considerable risk (T137).
In Dr Golledge's opinion an infection can happen very quickly, over hours or days however it depends on each individual case. If signs of infection were apparent then initially the patient should have been referred to an orthopaedic surgeon or a physician experienced in infection.
In cross‑examination when asked specifically about Dr Hewett's assessment of Mrs Davy’s knee Dr Golledge said that if the initial notation of the lump was made on 25 June 2005 and the general practitioner thought it infected on 4 July 2005 then blood tests for a likely infection, a scan of the knee and a referral to someone experienced in infections was appropriate. He notes that there were about a dozen infection specialists "in town". In Dr Golledge's opinion taking oral antibiotics would only slow the process partially. A more aggressive approach was required.
Dr Golledge noted in his report dated 3 July 2008 (Exhibit 1):
"It is my opinion that the fall in June 2005 predisposed Mrs Davy to infection in the knee.
…
If immediate action had been taken around the time of June 2005 this would have significantly reduced the risk of Mrs Davy suffering severe infective complications in requiring a two stage knee revision. Of course the risk is not entirely eliminated but I would estimate that if Mrs Davy was seen in a timely manner, that is, within a few days, the chances of her having the prosthesis salvaged with early washout, debridement, possible change of liner and aggressive intravenous and then subsequent oral antibiotics would have been in the order of about 70 to 80%.
…
The delay in treatment would have reduced the chances of prosthesis salvage considerably and this would have reduced it to, in my opinion, around the order of 20 to 30%.
…
Whether the platella was subluxed or not … is not of great importance to the overall management of the case."
Dr Golledge confirms this to be his opinion in evidence in chief.
In re‑examination Dr Golledge expresses the opinion that "if treated one week of 10 July 2005 she had a better chance of retaining that prosthesis without having recourse to a two‑stage replacement".

Professor Nivbrand

Professor Nivbrand, an experienced consultant orthopaedic surgeon and professor of orthopaedics at the University of Western Australia who was called on by the defendant had surgically inserted Mrs Davy's prosthetic knee. Professor Nivbrand conducted an outpatient clinic every Friday morning at Sir Charles Gairdner Hospital with the assistance of registrars and a staff team. He acknowledges that Mrs Davy was a patient of the clinic and that she was under his care. Professor Nivbrand says (T152):
" … If it's a patient we have seen before – so it's sort of my patient – so then either if the patient or a GP would contact – if it's something urgent, I guess they would contact me, myself. If it's semi‑urgent, probably contact my registrar and then we would put the patient up for an appointment."
His opinion in relation to the degree of urgency for an appointment in respect of a lump where the skin was not broken differed from the opinion of Dr Golledge. In Professor Nivbrand's opinion the patient did not need an appointment urgently if the skin was not broken.
T152:
"… A fall – a lump would probably be urgent only if there was a break in the skin.
…
Right, and if there wasn't a break in the skin?---Then we just put her up for a normal appointment and not doing anything the same day or in two or three days. It wouldn't be that urgent."
Professor Nivbrand clarifies that if a caller to the clinic suggested that a knee lump was warm or hot and painful but there was no break in the skin then it can probably wait a week or two before an appointment. He said (T152):
"… A lot of patients call, I guess, with the pain and discomfort and things, but if they're in – has been taken care of before, they've been there the last year, then they're in the system and we would give them an appointment. It's normally not going to be the first week, but a couple of weeks they would certainly get an appointment."
Professor Nivbrand also clarifies that if there was a break in the skin or a really, really badly painful knee then the patient would be told to go to emergency that was staffed with registrars and consultants and where an orthopaedic registrar was on call. The registrar would call Professor Nivbrand if the patient's presentation was of any concern.
In cross‑examination Professor Nivbrand agrees with the proposition that the sooner you treat something the better the outcome. He distinguishes the position in relation to bacteria as follows in (T155):
" … The problem is, if the bacteria has reached the foreign material – if it has reached the foreign material – , it is virtually impossible to heal."

Mrs Davy's care after August 2005

As a result of the infection in and around the prosthesis, orthopaedic surgeon Mr Holt carried out an operation to remove the entire knee replacement prosthesis on 27 February 2006. Multiple specimens that indicated infection were also taken. Mr Holt debrided the bone ends and inserted antiseptic impregnated cement spacer in the left knee. On the 1 May 2006 Mr Holt operated again and removed the cement spacer and inserted a stabilised knee replacement.
In his report dated 12 February 2007, commenting on consultation with Mrs Davy in early 2007 (Exhibit 1) Mr Holt's opinion was that her knee was functioning as well as one could hope and he noted that the infection appeared to have been cured. In relation to Mrs Davy's prognosis he said "there is about a 20 degree to 30 degree extensor lag due to the deficiency in the exterior mechanism. I regret that no amount of physiotherapy is ever going to probably cure this."
In his report dated 1 June 2007 Mr Holt said that "while there is weakness of the exterior mechanism and some ongoing pain the knee is functional and uninfected". He did not anticipate any significant ongoing improvement.

The clinic staff - Denise Holdcroft

Ms Holdcroft was called by the defendant. In 2005 Ms Holdcroft was the outpatient's clerk in the clinic. Her role included making appointments, taking telephone calls and counselling patients. The clinic's patients included patients referred from the emergency department if they had fractures or breaks, general practitioner referrals, anybody who is required to go on the wait list for surgery and post operative appointments. In 2005 there were two outpatient clerks attached to the clinic. Ms Holdcroft describes the procedure as follows (T122):
" … if a person rang for an appointment … I would ask them why they needed the appointment. The clinic is pre‑booked. It is not a trauma clinic … ‑ they needed to see either their GP or to come to the emergency department."
(if they were in pain or if they had a fall).
Ms Holdcroft says that if she could not help the caller then she would call a nurse. If the nurse could not help then she would page the doctor on call or put the telephone call through to the doctor. Ms Holdcroft says that if a general practitioner rang she would ask him to page the on call registrar because she (the clerks) could not take a general practitioner's request over the telephone. The request had to come from a doctor or a nurse from within the clinic. She states that if a general practitioner rang and said that the matter was urgent she would refer the general practitioner to the emergency department.

At (T123) Ms Holdcroft says that if someone wanted an earlier appointment and she was unable to fit the patient in then she would explain that they should see a general practitioner or go to the emergency department if they required more urgent attention.
The clinic's computer system for 2005 indicated that Ms Holdcroft had made the appointment for Mrs Davy at 8.32 am on the morning on 18 July 2005 for 12 August 2005. Ms Holdcroft confirms that she is not medically trained. If a caller raised an issue in relation to a lump or prosthesis she would refer the matter to a nurse. Ms Holdcroft's practice was to set the date of an appointment over the telephone and then to ask the patient if they would like a card confirming the time to be sent. No record was kept on file in relation to whether a card was sent and if so, he date of sending.
It was not the practice of the clinic to "slot" into someone else's clinic. Professor Nivbrand's patients would always be scheduled for Friday morning’s clinic. In relation to the procedure that would be followed if the clinic was busy she states (T128):
" … If the nurse – if I needed – required a nurse to talk to that person; the nurse was in with the doctor with a patient, I would take their home number and get the nurse, when they finish, to call the patient back."
Ms Holdcroft could not comment on whether the nurse would actually telephone the patient back as requested.

Gratuitous services ‑ Ms Beryl Kay Main

Ms Main has known Mrs Davy for around 10 years as a personal friend and, more recently, as a neighbour.
Ms Main was called by the plaintiff and she describes the assistance that Mrs Davy required when she was hospitalised in 2005 and the additional assistance she required following her discharge. While Mrs Davy was in hospital Ms Main visited her every two or three days, picked up her laundry, paid her bills and generally assisted. On discharge Ms Main assisted with the laundry, cleaned Mrs Davy's house, watered the garden and cooked meals for her on occasion. She estimated the time taken was about seven to eight hours per week however this also included time for company because Mrs Davy would be upset and pretty lonely.
Ms Main also drove Mrs Davy to the library and to the chemist and shopped for Mrs Davy on the relevant pension day. Ms Main continues to assist Mrs Davy with shopping, cooking, driving, cleaning and errands.

Findings

The plaintiff's left knee was operated on by Professor Nivbrand in 2004 and she was subsequently referred to the clinic. The clinic was supervised by Professor Nivbrand for his patients who included those who required assessment and review after surgery. Mrs Davy was a patient in that category. The duty of care is explained by Gummow J in Perre v Apand Pty Ltd [1999] 198 CLR 180, 253:
"The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties."
As the patient of Professor Nivbrand who had been reviewed by the clinic and who was scheduled to have a further review in February 2006 I find that the connection between the clinic and Mrs Davy is so close that a duty of care arises.
It is submitted on behalf of the plaintiff that the issue for determination is whether the risk of injury to the plaintiff was foreseeable and significant such that any reasonable person in the position of the staff members employed by the defendant at Sir Charles Gairdner Hospital to take calls from patients would have taken precautions against the occurrence of that risk by making an appointment for the plaintiff to be examined.
I accept that this is one issue however the primary issue is whether the defendant had been alerted by the plaintiff to the risk of injury and whether a prima facie causal connection is established. (Chappel v Hart (1998) 195 CLR 230 at 273 per Kirby J).
Mrs Davy is an honest person who has suffered significant loss and pain in her life. I do not accept that she deliberately misused prescribed medication nor do I accept that she deliberately mixed alcohol with prescribed medication in an inappropriate way. Mrs Davy was, however, taking significant quantities of medication in July and in August 2005 and thereafter. Her prescriptions included pain killers, benzodiazapines and sleeping pills. She suffered from a number of health problems including diabetes, heart disease and bowel problems and suffered from the ongoing effects of injuries she received in a motor vehicle accident and grief, depression and anxiety arising from the passing of her husband and the stress of her relationship with her stepdaughter. The combined effect of the health problems, stress and medication make Mrs Davy an honest but an unreliable historian.
The plaintiff's evidence in relation to dates is unreliable. This was illustrated by her pleading in relation to the clinic appointment date (5 August 2005), her answer to interrogatories about the clinic date (4 August 2005) and her evidence on oath in relation to the clinic appointment date (12 August 2005). Her evidence in relation to the date of the first telephone call to the clinic is a date that is uncorroborated. Dr Hewett's medical notes of Mrs Davy's treatment do not refer to a telephone call at all. Dr Hewett's letters refer to a Monday however other material information contained in his letters is inaccurate. I cannot be satisfied that a call was made to Sir Charles Gairdner Hospital on 4 July 2005.
I am satisfied that a telephone call was made on one occasion when Mrs Davy was in Dr Hewett's surgery. Mrs Davy refers to the general Sir Charles Gairdner Hospital telephone number being provided prior to the call however the circumstances of the call are unclear. Mrs Davy's evidence in relation to the telephone call being on a speaker phone is in conflict with her answers to interrogatories that Dr Hewett had spoken to her about the call after it occurred. I am not satisfied on the evidence that she heard the words spoken by the recipient of the call.
There is no evidence in relation to the identity of the recipient of the call. The general Sir Charles Gairdner Hospital number was called and therefore a switchboard operator, the clinic receptionist or a registrar may have spoken to Dr Hewett. Ms Holdcroft who was a receptionist at the clinic at the relevant time says that the clinic procedure is that if a general practitioner calls he or she would be required to speak to a registrar. The only reference to a speaker in relation to the call allegedly heard by Mrs Davy is to one female. I am not satisfied that the clinic received a message from Dr Hewett indicating that Mrs Davy needed to be contacted by the clinic as a matter of urgency in relation to an appointment.
Mrs Davy's evidence is that her knee became warm and painful on 10 July 2005 and that Dr Hewett re‑examined the knee on 16 July 2005. She says she called Sir Charles Gairdner Hospital for the first time on a day when the clinic was able to make an appointment on 18 July 2005 at 8.29 am. On that date within three minutes of the call commencing Mrs Davy's appointment date at the clinic was changed by Ms Holdcroft from February 2006 to 12 August 2005. Ms Holdcroft's evidence in relation to the procedures followed by the clinic receptionist was clear. The only reasonable inference is that the appointment was scheduled in response to Mrs Davy's telephone call. I find that Mrs Davy is mistaken in her belief that she did not communicate with the clinic on 18 July 2005. I find that the appointment date was allocated to her on that date.
There is no evidence of the precise words used by Mrs Davy in any subsequent call nor is there any evidence of the identity of the people to whom she spoke. The clinic only operates on a Friday morning. The evidence of Professor Nivbrand and Ms Holdcroft is consistent with there being a large demand for a limited number of appointments. The clinic does not operate as a trauma clinic and appointments cannot be made immediately. I accept that the procedure followed by the clinic in 2005 was that if the receptionist received a telephone call indicating a degree of urgency then the caller would be referred to his or her general practitioner and to the emergency department.
Mrs Davy continued to see her general practitioner Dr Hewett twice weekly until 2 August 2005. Dr Hewett did not re‑examine her knee after 16 July 2005, nor is there any evidence that he asked her about the clinic appointment nor is there is any notation that he attempted to contact the clinic or a registrar to clarify the situation. Mrs Davy's evidence is that she was advised to obtain medical advice by her pharmacist on 2 August 2005 and that she was advised to go to the emergency department when she telephoned Sir Charles Gairdner Hospital on 3 August 2005. Mrs Davy's evidence is that she chose not to go to the emergency department on that date because she made an assessment that she would wait for her appointment, a date that she understood to be 4 August 2005. There is no evidence to suggest that if the clinic receptionist had suggested that she go to her general practitioner or to the emergency department on a date prior to 3 August 2005 that she would have chosen to do so. Her resistance to attending the emergency department was clear from her evidence.
Eventually on 4 August 2005 Mrs Davy did attend the emergency department and was duly admitted. I am not satisfied that the plaintiff has demonstrated that the defendant has breached its duty of care because I am not satisfied that the information in relation to the precise concerns Mrs Davy had about her knee were ever communicated to the clinic. The plaintiff's claim is dismissed.

Provisional assessment of damages

The plaintiff, who is 63 years old has a life expectancy of 23.1 years. It is accepted that the relevant multiplier is 661.1.

General damages

Although the plaintiff suffered and suffers from a number of health problems that included a need to have her right knee replaced in 2007 I accept that the infection and protracted medical treatment to her left knee has had a significant effect upon her life.
In 2005 and 2006 the plaintiff required three hospital admissions and surgical interventions that included the removal of the left knee prostheses and the insertion of material to stave off infection. She subsequently underwent the debriding of bone and the removal of the inserted material. The plaintiff was ultimately confronted with a prognosis that she would never regain full movement of her knee. I accept that the plaintiff suffers ongoing pain in her left knee. Her movement is significantly restricted and she finds it very difficult to bear her weight on her knee. Her limited and painful mobility and instability have restricted her activities and her independence and affected her enjoyment of life.
I note that the Civil Liability Act applies to this matter. In the circumstances I award $60,000 general damages provisionally.

Past medical expenses

The sum which I accept as appropriate is set out in the Department of Veterans Affairs letter dated 15 October 2008 together with the sum of $30 for White Oak Home Services. The sum is $61,772.34.

Future medical expenses

The plaintiff relies on a knee brace. The sum of $2,066.50 in respect of the brace is not opposed and would be allowed. Medications of Norspan, a morphine patch applied weekly, and Tramadol taken at a rate of two tablets per day are required primarily for the pain the plaintiff experiences in her right knee. A total sum of $29,182.65 is sought and is provisionally ordered.

Paid services

The sum of $15,611 in relation to the services of White Oak Home Care Services is not opposed.

Past gratuitous services

I accept that the assistance provided by the plaintiff's neighbour Ms Main was necessary and that Ms Main's evidence accurately sets out the time that she expended in relation to assisting the plaintiff and the activities that she was required to carry out. The sum of eight hours per week over a three week period at $15.00 per hour ($360) applies. A sum of 14 hours per week from 26 August 2005 to 1 November 2006 at $15.00 per hour to cover shopping, cooking, cleaning and other activities ($13,020) would be ordered.
Thereafter seven hours per week at $15.00 per hour for 103 weeks ($10,815) is appropriate. A total sum of $24,195 would be ordered.

Future gratuitous services

Although the plaintiff will continue to require assistance for seven hours per week at $15.00 per hour any sum ordered must acknowledge future contingencies (Newman v Nugent (1992) 12 WAR 119). I consider $50,000 to be an appropriate sum. There is no amount set in relation to out of pocket expenses.
Interest on all past loss at the rate of 6 per cent per annum would apply.