Davy v Minister of Health
[2009] WASCA 170
•7 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DAVY -v- MINISTER OF HEALTH [2009] WASCA 170
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 14 AUGUST 2009
DELIVERED : 7 OCTOBER 2009
FILE NO/S: CACV 4 of 2009
BETWEEN: MARLENE JOYCE DAVY
Appellant
AND
MINISTER OF HEALTH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
Citation :DAVY -v- MINISTER OF HEALTH [2008] WADC 176
File No :CIV 362 of 2007
Catchwords:
Negligence - Claim that respondent negligent in failing to arrange urgent medical treatment of appellant - Whether trial judge erred in finding that respondent not informed that urgent treatment required - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K J Bradford
Respondent: Mr D R Clyne
Solicitors:
Appellant: Bradford & Co
Respondent: Minter Ellison
Case(s) referred to in judgment(s):
Biogen Inc v Medeva Plc [1997] RPC 1
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Davy v Minister of Health [2008] WADC 176
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Leeder v The State of Western Australia [2008] WASCA 192
Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) 5(4) AILR 63
PULLIN JA: I agree with Newnes JA.
BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Wager DCJ in the District Court dismissing the appellant's claim in negligence against the respondent: Davy v Minister of Health [2008] WADC 176.
The appellant contended in the action that employees of the respondent at Sir Charles Gardiner Hospital (SCGH) were negligent in failing to arrange an urgent review by an orthopaedic surgeon of a lump on the appellant's knee which had developed following a total knee replacement. The trial judge dismissed the claim, finding in substance that the respondent's employees had not been informed that the appellant's knee needed to be reviewed as a matter of urgency. The appellant appeals against that decision.
The pleaded case
It is convenient to turn first to the appellant's pleaded case. In the amended statement of claim, the appellant pleaded (relevantly for present purposes) that on or about 5 February 2004 she underwent a total left knee replacement with patellar reconstruction. On 2 July 2005, the appellant presented to Dr Hewett, then her general practitioner, with a painful left knee and 'a suspicious lump' on the knee. The appellant pleaded that Dr Hewett advised her to come back on 4 July 2005 for re‑examination.
The appellant alleged that, on 4 July 2005, Dr Hewett advised her that she needed to attend SCGH as soon as possible for examination. She pleaded that Dr Hewett telephoned SCGH and requested that doctors who had been involved in her knee replacement examine her knee urgently. Following the telephone conversation, Dr Hewett advised the appellant that staff at SCGH had undertaken to telephone her direct with a date when her left knee would be examined.
The appellant pleaded that SCGH failed to contact her. She alleged that, between 16 July 2005 and 31 July 2005, she telephoned SCGH on a total of 10 occasions. On each occasion, she advised the person to whom she spoke that she had not been contacted, her knee was becoming worse, her GP was on an overseas holiday and she needed an urgent appointment. On each occasion she was told that someone would contact her with details of an appointment.
The appellant alleged that, on 1 August 2005, she again contacted SCGH and an appointment was made for her for 12 August 2005. The appellant alleged that her knee became worse and, on 3 August 2005, she developed a sinus on her knee that began to ooze pus. The appellant says she telephoned SCGH on two separate occasions on 3 August 2005 and informed a staff member of that condition and requested that her appointment be brought forward. That request was not acceded to.
The appellant pleaded that on 4 August 2005 she became ill and was admitted to SCGH through its emergency department. The appellant thereafter received prolonged treatment for a severe and uncontrolled infection in her left knee. She subsequently had to undergo complete knee replacement revision surgery on 27 February 2006 and the fitting of a replacement prosthesis on 1 May 2006. The appellant pleaded that she has suffered pain, injury and permanent disability as a result.
It was the appellant's case that the respondent's delay in examining her was negligent. She pleaded that at all material times between 4 July 2005 and 3 August 2005 the respondent knew or ought reasonably to have known that it was important to examine the appellant urgently, in circumstances where the appellant's GP had notified SCGH that her knee required urgent examination, any infection in the knee may infect the prosthesis, speedy antibiotic treatment would be likely to resolve the problem, and any delay in treatment would put the appellant at risk of a more severe infection and of infection of the prosthesis.
The appellant pleaded that the pain, injury and permanent disability she suffered was caused by the respondent's negligence. Alternatively, by reason of the respondent's negligence she lost the chance of avoiding a severe and uncontrolled infection and of avoiding that pain, injury and permanent disability.
The respondent admitted that the appellant had undergone a total left knee replacement at SCGH on or about 5 February 2004, but otherwise denied every material allegation in the amended statement of claim.
The trial
The appellant's evidence in chief
At the trial, the appellant gave evidence that she had had a total knee replacement of her left knee performed at SCGH on 5 February 2004 by Professor Nivbrant. The appellant was discharged from hospital on 13 February 2004. She subsequently attended an orthopaedics outpatient clinic (the clinic) at SCGH for check‑ups. In April 2005, the appellant attended the clinic and was given a further appointment for April 2006.
The appellant said that, in or about mid‑June 2005, she tripped and hit her left knee, causing a rash‑like abrasion. The appellant said that about a fortnight later she noticed that a lump, which she described as being the size of a cherry, had appeared on her left knee.
The appellant said that she brought the lump to the attention of her general practitioner, Dr Hewett, at an appointment on 2 July 2005. As that was a Saturday, the clinic was not open. Dr Hewett told her to come back on Monday, 4 July 2005, and he would telephone the clinic to arrange an appointment for her. The appellant said Dr Hewett told her she did not need to make an appointment and he would fit her in between patients.
The appellant said that, on 4 July 2005, Dr Hewett telephoned the clinic in her presence and put the telephone on speakerphone. She said Dr Hewett told the recipient of the call, who appeared to be a receptionist at the clinic, that he was concerned about the appellant's knee and asked to speak to an orthopaedic surgeon. He was not able to speak to an orthopaedic surgeon. He was told that the clinic was very busy and someone from the clinic would get in touch with the appellant. She said Dr Hewett provided the clinic with her telephone number.
The appellant said that the clinic did not contact her. She said that she saw Dr Hewett on 9 July 2005 and again on 13 July 2005 for other ailments. He did not examine her knee on those occasions but he did examine her knee at a subsequent appointment on 16 July 2005.
The appellant gave evidence that she telephoned the clinic on a number of occasions after 4 July 2005 in an attempt to arrange an appointment to see Professor Nivbrant. By reference to a statement of her telephone calls provided by Telstra, the appellant said that she telephoned the clinic on 16 July, 18 July, 22 July (twice), 23 July (twice), 25 July, 31 July 2005 (three times). The appellant acknowledged that the calls on 16, 23 and 31 July were on the weekend, when the clinic was not open, but said that on the other days - 18, 22 and 25 July - she spoke to someone in the clinic. The appellant said that on each occasion she informed the person she spoke to that her GP had said it was urgent she see Professor Nivbrant about her knee because she had fallen and hit it and her GP was worried about it. The appellant said she asked for an appointment as soon as possible. She says that on each occasion she was told that someone would get in touch with her.
The appellant said that, having heard nothing, she telephoned the clinic on 1 August 2005. She was told that an appointment had been made for her for 12 August 2005 and that she would receive written notice of it in the mail. The appellant received that notice the following day, 2 August 2005.
The appellant said she saw Dr Hewett on the morning of 2 August 2005 for other reasons. That afternoon, the skin in the area of the lump broke and there was a discharge of pus. The appellant was taken by a neighbour to a pharmacist who applied Betadine to the wound and bandaged it. The pharmacist advised her to attend her doctor or a hospital. The appellant said that later that day she telephoned the clinic and said that her knee had 'broken open' and asked to see someone. She said she was told there was nobody in the orthopaedic section.
According to the appellant, she telephoned the clinic the following day, 3 August 2005, and asked for her appointment to be brought forward because her knee had 'broken open'. The appellant said she was not offered an earlier appointment and she told the clinic that she would attend the emergency department.
It was not in issue that the appellant attended the emergency department of SCGH on 4 August 2005 and was admitted to hospital. The appellant was administered intravenous antibiotics for a staphylococcus aureus infection and, on 17 August 2005, underwent surgery for removal of the aptella and a joint washout. In February 2006, the prosthesis was removed and, in May 2006, a replacement prosthesis was fitted. The appellant has lost some movement in her left knee and suffers ongoing pain in the knee.
The cross‑examination
The appellant was cross‑examined about a number of inconsistencies between her evidence, her answers to interrogatories (sworn on 5 November 2007), and the amended statement of claim.
The appellant agreed that her evidence that Dr Hewett had made the call to the clinic on 4 July 2005 on speakerphone was inconsistent with the statement in her answers to interrogatories that, after he had made the telephone call to the clinic, Dr Hewett had informed her that no appointments were available and that the clinic would call her to make an appointment. The appellant accepted that it would have been unnecessary for Dr Hewett to tell her that if the call had been made on speakerphone. The appellant was unable to explain the discrepancy. (Her evidence was also in that respect inconsistent with the plea in the amended statement of claim, which was to the same effect as her answers to interrogatories.)
In cross‑examination, the appellant also agreed that a statement in her answers to interrogatories that, on 4 July 2005, Dr Hewett had told her he was about to go away on an overseas holiday was incorrect. The appellant acknowledged that she had twice‑weekly appointments with Dr Hewett in the weeks following 4 July 2005. The appellant accepted that the impression from the answers to interrogatories that Dr Hewett had gone overseas on 11 July 2005 was incorrect. The appellant said that she had mixed up the dates because of problems she was having at the time with her stepdaughter. (I should mention that it was also pleaded in the amended statement of claim that in the telephone calls made to the clinic between 16 July 2005 and 31 July 2005 the appellant informed the clinic that her GP was overseas.)
The appellant accepted that the statements in her answers to interrogatories that she had not seen Dr Hewett on 13 July, 16 July, 20 July, 23 July, 26 July, 30 July or 2 August 2005, were wrong. The appellant conceded that she had attended appointments with Dr Hewett on each of those dates. The appellant also conceded that she had a standing appointment with Dr Hewett every Saturday morning, those appointments falling on 16 July, 23 July and 30 July 2005. The appellant said she was confused when she provided the answers to the interrogatories.
The appellant admitted that a statement in her answers to interrogatories that she had consulted a pharmacist about the discharge from her knee on 2 August 2005 because Dr Hewett had not returned from overseas, was incorrect. The appellant agreed that she had attended an appointment with Dr Hewett earlier on 2 August 2005.
The appellant was unable to explain why in her answers to interrogatories she had said that in a telephone call to the clinic on 25 July 2005 she was given an appointment for 4 August 2005, whereas in both her evidence and in the amended statement of claim she had said that on 1 August 2005 she had been given an appointment for 12 August 2005. Nor was the appellant able to explain the discrepancy between her evidence that her knee began to discharge pus on 2 August 2005 (in the amended statement of claim it is said to have been 3 August 2005) and the statement in her answers to interrogatories that the wound on her knee began 'ooze' fluid on 31 July 2005 and that that worsened up to 4 August 2005 when she attended the emergency department. She was also unable to explain why she had said in her answers to interrogatories that she had informed SCGH on 1 August 2005 that her knee had started 'to ooze'. In cross‑examination the appellant maintained that the discharge from her knee first occurred on the afternoon of 2 August 2005.
In cross‑examination the appellant was asked whether, had it been suggested to her prior to the discharge of pus from her knee that she attend the emergency department, she would have done so. The appellant said she would not have done so, because she did not think her knee was 'so bad' (ts 78).
Dr Hewett's letters
Dr Hewett died in December 2006, before the action was commenced. His medical notes were admitted into evidence under s 79B of the Evidence Act 1906 (WA). In addition, two letters written by Dr Hewett were admitted into evidence under s 79C(ii)(a) of the Evidence Act. One was a letter, dated 30 January 2006, to an orthopaedic surgeon, Mr Michael Holt, and the other was a letter, dated 8 July 2006, to the appellant's solicitors. The letters were (relevantly) in similar terms. The material terms of the letter dated 8 July 2006 were as follows:
[The appellant] has suffered a severe complication to her left knee replacement surgery which she had at SCGH 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 [the appellant] 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 SCGH 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 trial judge found, however, that the letters had virtually no evidentiary weight, on the ground that they were not contemporaneous with the events they described and they contained significant errors of fact.
The respondent's evidence
On the issue of liability, evidence was given on behalf of the respondent by a Ms Holdcroft, who was outpatient clerk at the clinic in 2005. One of Ms Holdcroft's tasks was to make appointments for all orthopaedic outpatient clinics. As appeared from Ms Holdcroft's evidence, a number of separate orthopaedic outpatient clinics were conducted at SCGH. Each clinic was conducted by a different orthopaedic team. The team headed by Professor Nivbrant, which was responsible for the appellant's care, held a clinic each Friday morning. Outpatients were seen only by appointment at the orthopaedic clinics and an outpatient had to be seen at the clinic conducted by the orthopaedic team which was responsible for that patient's care. The outpatient clinics were not trauma clinics where someone could just walk in off the street. If someone who was not an outpatient rang for an appointment they would be told that the clinic was not a trauma clinic and that they needed to see their GP or go to the emergency department.
Ms Holdcroft gave evidence that the procedure in relation to telephone requests by outpatients for an appointment was to ask the caller for their name or medical number, to check on the computer when their next appointment was scheduled, and to ask why they needed an appointment. If the call was regarded as urgent Ms Holdcroft would transfer the call to the nurse or get the nurse to call the person back. If the nurse could not help, Ms Holdcroft would page the emergency on‑call doctor and put the call through to them. If a GP rang, they would be asked to page the on‑call registrar. If the GP said the matter was urgent, Ms Holdcroft said she would advise them to refer the patient to the emergency department.
If an outpatient wanted an appointment or wanted an existing appointment brought forward, Ms Holdcroft said it was her usual practice to give the next available appointment. If the outpatient said they required urgent medical attention, she would tell them that they would have to see a GP or go to the emergency department (ts 122 ‑ 123).
Ms Holdcroft said that when an appointment was made over the telephone the patient would be asked if they would like a card confirming the appointment sent out by mail. No record was kept of when a card was sent.
The clinics were unattended on the weekend and there was no telephone answering machine.
Not surprisingly, Ms Holdcroft had no independent recollection of the appellant telephoning for an appointment. However, the records of SCGH revealed that on 18 July 2005, at about 8.32 am, Ms Holdcroft had rescheduled the appellant's existing appointment, scheduled for 21 April 2006, to 12 August 2005. It appears that the appellant requested that a card confirming the appointment be sent to her, as she gave evidence that she received such a card on 2 August 2005.
Trial judge's findings
The trial judge found that the respondent owed a duty of care to the appellant. Her Honour did not, however, go on to say what the nature or content of that duty was. Nor was that clearly articulated in the amended statement of claim. However, it would appear that, in substance, the appellant's case was founded upon the proposition that the respondent was under a duty to exercise reasonable care to examine and provide medical treatment of her knee as necessary, and that, having been informed on 4 July 2005 that the condition of the appellant's knee was such that it required urgent attention, the respondent was in breach of that duty by failing to arrange urgently a medical examination and treatment at the clinic. The case seems to have been argued on that basis at trial.
The trial judge considered ([81]) that the primary issue (or at least a primary issue) in the case was whether the respondent had been alerted to the risk of injury.
Her Honour found that the appellant was 'an honest but an unreliable historian' ([82]). In reaching that conclusion, her Honour referred to the inconsistencies between the appellant's evidence, her answers to interrogatories and the amended statement of claim. Her Honour attributed the unreliability of the appellant's evidence to the combined effect of the appellant's various health problems, the stress of her relationship with her stepdaughter, and the medication the appellant was taking.
The trial judge ([83]) did not accept the appellant's evidence that Dr Hewett had made a telephone call to the clinic on 4 July 2005, finding that the appellant's evidence as to the call was not reliable. The trial judge noted too that there was nothing in Dr Hewett's medical notes to suggest that such a call had been made. Her Honour considered that no weight could be placed on the reference to such a call in Dr Hewett's letters in view of a number of material inaccuracies in the letters ([49]).
Her Honour concluded ([84] ‑ [85]) that Dr Hewett had made a telephone call to the clinic on some other occasion but was not satisfied that when Dr Hewett called the clinic he indicated that the appellant needed to be contacted urgently to arrange an appointment.
The trial judge found ([86]) that the appellant had herself telephoned the clinic on 18 July 2005 and that the appointment for 12 August 2005 was given to her on that occasion. The appellant's telephone records showed that she had called SCGH at 8.29 am on Monday, 18 July 2005. The records of the clinic showed that at 8.32 am on 18 July 2005 Ms Holdcroft had made an appointment for the appellant for 12 August 2005. Her Honour found ([86]) that the only reasonable inference was that the appointment was made at the time of that telephone call.
The trial judge accepted that the appellant had made several other telephone calls to the clinic but did not accept the appellant's evidence that in any of the telephone calls she had requested an urgent appointment or stated that she needed urgent attention.
Her Honour found ([89]) that the respondent was not in breach of its duty of care because the respondent's employees had not been informed that the condition of the appellant's knee was such that it required urgent attention. She dismissed the appellant's claim. Her Honour went on, however, to make provisional findings as to damages. Those findings were not in issue on the appeal.
Grounds of appeal
The appellant relies on four grounds of appeal:
1.The Learned Trial Judge erred and her discretion miscarried in finding that the combined effect of 'health problems, stress and medication' made the Appellant an honest but unreliable historian when there was no evidence of such effect.
2.The Learned Trial Judge erred and her discretion miscarried in finding that two letters written by Dr Hewett were of 'virtually no evidentiary value'.
3.The Learned Trial Judge erred and her discretion miscarried in finding that the Appellant's evidence in relation to dates was unreliable.
4.The Learned Trial Judge should have found on a balance of probabilities that:
(a)the urgency was communicated to the Respondent's department on 4 July 2005 by Dr Hewett;
(b)such urgency was also relayed by the Appellant thereafter;
(c)the failure to provide an appointment as close as possible to 4 July 2005 was a breach of the Respondent's duty to the Appellant;
(d)by reason of the breach the risk of serious infection eventuated;
(e)such eventuation was the cause of loss and damage to the Appellant in the absence of any evidence to the contrary.
The disposition of the appeal
Before turning to consideration of the grounds of appeal, I should observe that it is necessary for the purposes of this appeal that the appellant show error on the part of the trial judge in making the findings in question; it is not enough simply to show that some other finding was available: Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 [52]; Leeder v The State of Western Australia [2008] WASCA 192 [84] ‑ [85]. It was not always clear that the distinction was kept in mind by the appellant's counsel.
It is also the case that an appellant who contends that a finding of fact of a trial judge is wrong bears a heavy burden. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said:
[An appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23].
Similarly, in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) 5(4) AILR 63, Heydon JA (as his Honour then was) quoted with approval from Biogen Inc v Medeva Plc [1997] RPC 1, 45 per Lord Hoffman:
The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation [137].
But while the trial judge is generally in a more advantageous position than an appellate court in respect of findings of fact based on questions of credibility, such findings can be found by an appellate court to be erroneous if contrary to incontrovertible facts or compelling inferences, or if glaringly improbable: Fox v Percy [29]; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1.
I should also mention that no point was taken on the appeal about the absence of any plea or finding as to the duty of care which the respondent owed to the appellant. It was common ground between the parties that the appeal turned on whether the trial judge erred in finding that the respondent had not been informed that the appellant's knee required urgent medical attention and the appeal was argued on that basis. The respondent did not seek to support the judgment on any other ground.
Against that background, I turn to the grounds of appeal relied upon by the appellant.
Grounds 1 and 3
It is convenient to deal with grounds 1 and 3 of the grounds of appeal together. It is necessary at the outset to observe that insofar as the grounds refer to an exercise of discretion they are misconceived. The findings referred to did not involve the exercise of discretion. The real substance of the two grounds, as I understand them, is that the trial judge erred in finding that the appellant was an unreliable witness in relation to the relevant events, including as to dates, and that that unreliability was caused by 'health problems, stress and medication' ([82]).
In my view these grounds are without merit.
In the circumstances, that the appellant's evidence as to the dates upon which material events occurred was unreliable could hardly be doubted. I have earlier referred to a number of inconsistencies which emerged in cross‑examination between the appellant's evidence at the trial and her answers to interrogatories. To the limited extent that the appellant was able to offer any explanation for those inconsistencies, she simply said she was confused at the time she answered the interrogatories.
Moreover, the appellant admitted at the trial that she was not sure of any of the relevant dates (ts 51). That uncertainty manifested itself at a number of points in her evidence (ts 51, 52, 59, 67, 70, 72). At one point, when it was put to her by the respondent's counsel that she was confused about the date upon which she was given the appointment at the outpatient clinic, the appellant responded 'well, wouldn't you be if you were in pain' (ts 72).
Nor was the appellant's unreliability confined to specific dates. In her answers to interrogatories the appellant denied that she had consulted Dr Hewett between 13 July 2005 and 4 August 2005 when she attended at the emergency department of SCGH. The appellant said that Dr Hewett had gone overseas. In fact, as the appellant conceded in cross‑examination, Dr Hewett did not go overseas prior to 2 August 2005 and she had consulted Dr Hewett on no less than seven occasions in the period 13 July 2005 to 2 August 2005 for a variety of ailments. Three of those occasions were on a Saturday in accordance with a standing arrangement the appellant had for an appointment at 7 am every Saturday morning. Those consultations also included a consultation on 2 August 2005, only some hours before (on the appellant's evidence) her knee began to discharge pus, and two days before the appellant was admitted to SCGH. In the circumstances, it is not easy to understand how the appellant could ever have thought that Dr Hewett was overseas for the three week period leading up to her admission to hospital.
The finding that the appellant was 'an unreliable historian' in relation to the material events was one that was clearly open to the trial judge. Indeed, in the circumstances that was perhaps the most favourable view that could be taken of the appellant's evidence.
Once it was found that the appellant was an unreliable witness, I do not think anything turns on the trial judge's conclusion that the appellant's unreliability was attributable to health reasons. In any event, I am not persuaded that the trial judge erred in deciding that it was attributable to health reasons.
In July and August 2005, and thereafter, in addition to problems with her left knee, the appellant suffered from Type 2 Diabetes, an ear problem, rheumatoid arthritis, cataracts, depression, sleeplessness, whiplash, gastroenteritis, bad headaches, and problems with her wrist consistent with carpal tunnel syndrome. During July 2005, the appellant was prescribed a large number of different medications. Her husband passed away in 2004 and the appellant gave evidence that she had had a difficult relationship with her stepdaughter. At the trial the appellant said that she was not sure of dates because 'of a lot of things [she] went through' (ts 51), because problems with her stepdaughter had been on her mind (ts 64), and because she was in pain (ts 72).
In my view, it was open to the trial judge to find that the combined effect of health problems, stress and medication was the cause of the discrepancies and inconsistencies in the appellant's evidence.
I would dismiss grounds 1 and 3 of the grounds of appeal.
Ground 2
Once again, to the extent this ground of appeal refers to the exercise of discretion it is misconceived, the finding involving no exercise of discretion. The appellant's real contention is that the trial judge erred in giving little weight to the contents of Dr Hewett's letters. I do not consider there is any substance in this ground.
As her Honour observed, the letters were not contemporaneous and they contained significant factual errors. They were written some months after the events with which they deal. The letter to Mr Holt was written in January 2006, some six months after the relevant events, and the letter to the appellant's solicitors in July 2006, some 10 months after the events.
More significantly, the letters contained a number of errors. In the letters, Dr Hewett said that the surgery on the appellant's left knee had taken place in 2005, whereas the surgery had occurred in February 2004. Dr Hewett said that he first noticed the lump on the appellant's knee on 2 July 2005, whereas he refers in his medical notes of 25 June 2005 to a lump on the appellant's knee and there is no reference in his medical notes of 2 July 2005 to the appellant's knee. Dr Hewett said that, following a consultation on Saturday, 2 July 2005, he rang and spoke to the team registrar, Dr Cooper, on 'Monday morning' (that is, 4 July 2005), whereas Dr Cooper was himself a patient in a hospital in Queensland on 4 July 2005.
I would add that there was also nothing in Dr Hewett's records (apart from the letters to which I have referred) to indicate that he called the clinic on 4 July 2005 or on any other occasion.
I am not persuaded that the trial judge erred in finding that the letters were of virtually no weight. I would dismiss ground 2 of the grounds of appeal.
Ground 4
This ground does not, contrary to r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA), assert that the trial judge erred. It simply sets out findings which the appellant contends that the trial judge should have made. But, as appeared in the course of argument, the appellant sought, in substance, to contend that the trial judge erred, first, in finding that Dr Hewett did not telephone the clinic on 4 July 2005 to request that the appellant be seen urgently, and, secondly, in finding that the appellant did not contact the clinic and request urgent medical attention.
Turning to the first contention, the finding that Dr Hewett did not telephone the clinic on 4 July 2005 was one that was clearly open to the trial judge. There was nothing in Dr Hewett's medical records to indicate that such a call had been made. The appellant's evidence that Dr Hewett made such a call was rejected by the trial judge, who did not regard the appellant's recollection of events as reliable. In the circumstances, the trial judge was plainly entitled to reject that evidence. And for the reasons I have already mentioned, her Honour did not regard Dr Hewett's letters as being of any weight. Most significantly, the statement in the letters that Dr Hewett spoke to Dr Cooper on 4 July 2005 was plainly wrong.
No error by the trial judge has been made out.
It was also open to the trial judge to find that the appellant did not herself inform the clinic that she required urgent medical attention.
It appears from Dr Hewett's medical notes that the appellant consulted him on 2, 9, 13, 16, 20, 23, 26 and 30 July 2005, and on 2 August 2005. There is no reference in Dr Hewett's medical notes to any complaint by the appellant about her knee during that period. The only reference in the medical notes to the appellant's knee was on 25 June 2005 where there appears the entry '[n]oted knee lump'.
On the appellant's evidence, the only occasion on which Dr Hewett examined her knee after 2 July 2005 was on 16 July 2005, when Dr Hewett looked at it and felt it, and said he would call the clinic again 'next week' (ts 57). (The trial judge found that in fact the appellant herself obtained an appointment in a telephone call to the clinic on 18 July 2005.)
The appellant saw Dr Hewett on five occasions after 16 July 2005, including on the morning of 2 August 2005. She says she told him her knee was painful but he did not examine her knee on any of those occasions nor did he provide any treatment or prescribe anything for pain relief.
None of that is consistent with a medical problem which was thought to require urgent attention. Nor is the appellant's evidence that if, prior to the discharge of pus on 2 August 2005, she had been advised to attend the emergency department she would not have done so because her knee was not 'so bad' ([78]).
In addition, the appellant's evidence as to the response she received to her various requests for an urgent appointment was contrary to the evidence of Ms Holdcroft as to the practice at the clinic. The appellant said that on each occasion on which she telephoned the clinic seeking an urgent appointment she was simply told that someone would get back to her about it. Ms Holdcroft's evidence (which the trial judge accepted ([87])) was that a caller who wanted an urgent appointment would be told to see their GP or attend the emergency department.
After her knee began discharging pus, the appellant contacted the clinic to seek an urgent appointment and, being unable to obtain that, attended the emergency department on 4 August 2005. Her attendance at the emergency department is consistent with the advice that Ms Holdcroft said would be given to an outpatient who called the clinic seeking an urgent appointment.
In my view, it has not been shown that the trial judge erred in finding that there was no communication to the clinic by Dr Hewett, or by the appellant prior to 3 August 2005, that the appellant's knee required urgent examination or treatment.
I would dismiss this ground of appeal
Conclusion
No error on the part of the trial judge having been established, I would dismiss the appeal.
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