El Khoury v Lee

[2003] NSWLC 10

Local Court of New South Wales

CITATION:	El Khoury v Lee [2003] NSWLC 10
JURISDICTION:	Civil
PARTIES:	Maroun El Khoury (Plaintiff) John Lee (Defendant)
FILE NUMBER:	567/01
PLACE OF HEARING:	Downing Centre Local Court Sydney
DATE OF DECISION:	04/06/2003
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Negligence - Evidence - Medical Negligence - Civil
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Bolam v Friem Hospital Management Committee (1957) 1 WLR 582 Naxakis v Western Suburbs General Hospital (1999) HCA 22 (13/5/99) Rogers v Whitaker (1992) 175 CLR 479 Rooty Hill Medical Centre Pty Ltd v Gunther (2002) NSWCA 60 Sidaway v Governors of Bethlehem Royal Hospital (1985) AC 871
REPRESENTATION:	Mr Baskerville for the Plaintiff Mr Downing for the Defendant
ORDERS:	Verdict for the Plaintiff in the sum of $18,000 and judgment accordingly. Interest is to be calculated by the Registrar pursuant to s.39A of the Local Court (Civil Claims) Act from 29 March 1998. Costs will follow the event in an amount to agreed within 28 days or assessed.

Reasons for Decision

1 The plaintiff, Mr Maroun El Khoury, brings this claim against Dr John Lee alleging negligence by Dr Lee in failing properly to diagnose and treat a football injury suffered by the plaintiff and in failing to refer the plaintiff for urgent treatment by a specialist hand surgeon immediately after the consultation in which Dr Lee examined Mr Khoury.

2 As a result of the alleged negligence, Mr Khoury claims that he suffered damage to the fifth finger on his left hand which is now, for all practical purposes, irreparable. As a consequence he claims to have lost a promising career as a rugby league player and to have suffered loss of income and out-of-pocket expenses.

Background and uncontroversial evidence

3 On 29 March 1998, the plaintiff played a game of rugby league and suffered an injury to the little finger on his left hand. The injury was examined on that day by Dr Lee who ordered an X-ray and who treated the injury.

4 On 28 April 1998 the plaintiff presented at the Emergency Department of Concord Hospital. On 29 April 1998 he was examined by Dr James Masson, a hand surgeon. At that time the plaintiff had no active flexion of the DIP joint on the little finger. After X-ray examination, Dr Masson found that Mr El khoury “had a dual pathology of his little left finger when it was originally injured. Not only had he avulsed the FDP tendon but he had also sustained a small volar plate avulsion fracture from the base of the middle phalanx.” In lay terms, this means that the flexor tendon had torn off from the bone taking a small fragment of bone with it, leaving the finger unable to be straightened.

5 Dr Masson was unable to re-attach the flexor tendon and diagnosed Mr El Khoury as requiring a primary flexor tendon graft. This was performed but subsequently further surgery was required to treat adhesions which had developed along the length of the graft. This surgery and a further surgical intervention were ultimately unsuccessful in providing worthwhile active motion of the joint. On 1 December 1999, Dr Masson reported that “although Mr El Khoury has no active motion of the DIP joint of his little finger, he still has a very functional left hand. His grip strength is near normal and he has normal motion of both the MP and PIP joints.” He also reported that the plaintiff had sustained a 48 per cent loss of the efficient use of his left little finger and a 15 per cent permanent loss of the efficient use of his left arm at or below elbow level.

6 Mr El Khoury played rugby league at a junior level in the Canterbury district and was hopeful of a career with the Canterbury Bulldogs Rugby League Club as a professional player. He played for the Canterbury representative SG Ball squad in 1996 as a front row forward.

Issues for determination

7 The main issues for determination are factual matters. There is a dispute between the parties as to the treatment of the injury by Dr Lee and the advice given by Dr Lee to the plaintiff. In particular, there is a question whether Dr Lee referred the plaintiff to Concord Hospital for immediate treatment by a hand surgeon. The plaintiff’s case is, in essence, that he was not diagnosed properly or that, if he was, the need for urgent treatment of his injury was not adequately conveyed to him. The defendant’s case is, in effect, that the plaintiff ignored the advice given him by Dr Lee until it was too late and thereby voluntarily exposed himself to the risk of permanent damage to his left hand and arm.

8 A second factual matter is whether, in the circumstances, it would have been negligent for Dr Lee not to have armed Mr El Khoury with a letter of referral to the Concord Hospital. Dr Lee was not able to say whether he had provided such a letter to the plaintiff or not, but disputes that it would have been negligent for him not to have done so in any event, given his assertion that he advised the plaintiff to seek immediate treatment from a hand surgeon.

9 If liability is proven, an issue as to quantum arises. A significant portion of the claim is for loss of opportunity to play rugby league at a senior, professional level and to join the Police Force.

The evidence: the examination and treatment by Dr Lee

10 I have taken account of all the evidence given for both parties. In the interests of brevity, I will not refer to all the evidence given but only to those matters which strike me as being of significance or to which particular emphasis was given by the parties.

11 Mr El Khoury gave evidence that he had been playing rugby league on the afternoon of 29 March 1998. At approximately 3.55pm he says he visited the Medical Centre at Burwood Rd, Burwood. His hand was swollen and badly bruised. Mr El Khoury’s evidence was that the receptionist had informed him that the X-ray department would close at 4pm and that he needed an order from a doctor before his hand could be X-rayed. According to the plaintiff, the receptionist then told him that she would see a doctor about it. Dr Lee had met him in a corridor, quickly examined the hand and agreed that an X-ray was needed. Dr Lee signed the order form and Mr El Khoury then proceeded upstairs to the radiology rooms. He says that he had his hand X-rayed and awaited further examination by Dr Lee. According to the plaintiff, when the X-rays returned from radiology, Dr Lee absented himself from a consultation with a patient, examined the X-rays in a corridor rather than against a light box, had told him that his left little finger was fractured and then took him to a treatment room where he again examined the X-rays without the aid of a light box which was available and left him with a nurse to have a splint applied to his finger.

12 Mr El Khoury said that he had asked Dr Lee whether he needed to come back for follow up treatment and was told that it was unnecessary to do so. He was told to keep the splint on for about four weeks but to remove it after two weeks to move the finger slightly whilst being washed. He said that, apart from this, the only advice Dr Lee gave him was that he would be able to play rugby league in approximately four weeks.

13 He said that he had not been able to move the finger two weeks later and that his finger remained stiff and motionless despite the fact that the swelling had subsided. When the finger still would not move after four weeks Mr El Khoury said that he had decided to visit Concord Hospital. He was then referred to Dr Masson for examination and surgery.

14 Dr Lee’s evidence was based on his notes and the X-ray report and the general procedures adopted within the Medical Centre’s practice. He conceded that he had little independent recollection of the events of the afternoon of 29 March. Dr Lee’s notes of the consultation became the subject of conjecture, the plaintiff suggesting that they may have been altered or amended after the fact to cover up Dr Lee’s misdiagnosis or failure to properly treat the plaintiff. He strongly denied any suggestion of later amending or adding to his notes to cover up a failure on his part to refer Mr El Khoury to a hand surgeon. I will deal with this issue below.

15 Dr Lee’s evidence was that Mr El Khoury presented at some time well before 4pm. He concluded this from the business records of the medical centre. In cross-examination, however, he appeared to be less adamant about this. I do not think that anything really turns on the point, but it appeared to me that the weight of the evidence made it more likely than not that Mr El Khoury had presented shortly before 4pm with his misshapen finger because the centre records him being examined at about 4.15pm by Dr Lee. This is consistent with Mr El Khoury version that he was sent immediately to the radiologist for examination and that it was after the X-ray had come back that Dr Lee made any more detailed examination of the finger.

16 Dr Lee was vehement in his denial that he would have examined a patient in a corridor before sending him off to X-ray. He had no specific recollection of the incident itself and his evidence was a reconstruction on what he believes would have happened. In my view, it is entirely plausible that a patient presenting with a badly damaged finger just before the X-ray department closed might have been examined quickly in the way described by the plaintiff. According to the centre’s own procedures manual, the sort of injury with which Mr El Khoury presented could have been categorised by the receptionist or triage nurse as an “emergency” and the urgency of the case would have been compounded by the obvious need to get Mr El Khoury to X-ray before it closed. It was not clear to me why Dr Lee was being so obviously guarded on this point as it appeared to me to be perfectly defensible for him to have conducted an emergency examination in the way described by Mr El Khoury. There does not appear to be any allegation of malpractice or negligence in this part of the plaintiff’s version of events and no obvious advantage in fabricating this evidence. It is the sort of evidence that a patient might well remember but which a doctor might well forget. I accept the plaintiff’s evidence on this point.

17 Dr Lee denied that he would have absented himself from his consultation with the patient he was treating when Mr El Khoury returned from X-ray and strenuously denied that he had examined the X-ray under the corridor lights rather than with the aid of a light box. He said that the box was readily accessible, that it would have been very difficult, if not impossible, to see small fractures unless the X-ray were viewed with the aid of the light box and that it was bad practice to do such a thing.

18 Given that it is incontestable that Mr El Khoury had suffered a very painful injury, it seems to me to be plausible that Dr Lee may have decided to leave a patient with whom he was consulting, for a short time, to examine Mr El Khoury. It may be that the plaintiff is mistaken about that issue. In either case, nothing much turns on it. The gravamen of Mr El Khoury’s evidence is that Dr Lee was unprofessional and negligent in the manner in which he examined the X-ray film. Apart from Dr Lee’s evidence about his practices, he also gave uncontested evidence that a light box was available in the treatment room at the medical centre. It seems to me to be unlikely that a doctor would fail to use a light box accessible to him or her in a room in which he or she was treating a patient who had just returned from X-ray. Dr Lee’s evidence on this point seems the more plausible and I accept it.

19 Dr Lee’s request for an X-ray and the radiologist’s report back to Dr Lee was placed in evidence. The request is dated 28 March 1998 and the report tendered in evidence is dated 30 March. Dr Lee’s request raised a query Mr El Khoury’s finger had been dislocated. This presumably was Dr Lee’s initial working hypothesis. It is not clear precisely what Dr Lee received on the late afternoon of 28 March but some report would undoubtedly have been provided and it is reasonable to infer that it was in terms similar or the same as those in the report of 30 March. It referred to there being an avulsion fracture of the proximal phalanx and a further fracture of the distal phalanx. It did not, however, mention an avulsion fracture of the distal phalanx.

20 Dr Lee took notes concerning the history given, the referral to X-ray, possible diagnoses of the injury and the first aid given. The notes also refer to an explanation and advice being given, although no details of the advice and explanation are found in the notes. The last line of the entry reads “Need Urgent Rx – Refer to Hosp for management.” There are a number of curious features of these notes. A forensic examiner found that two different pens had been used by Dr Lee. He conceded that this might well be the case as he made notes at different times during the examination and treatment of Mr El Khoury and he had a number of pens lying around which he may have chosen randomly. That explanation sounds plausible enough but does not explain why he would have changed pens in mid-sentence, as he apparently did, three times. Moreover, the last line of the notes was written with the one pen but the underlining of the word “Hosp” was made with another pen. Dr Lee was not cross-examined at any length about these odd features of his notes so we are left only with his explanation that he may have picked up different pens at different times during the consultation. Why he would change pens mid-sentence or use a different pen to emphasise a single word in sentence was never explained.

21 The second curious feature of the notes is that Dr Lee either initialled them over the top of the last word in the notes (the word “management”) or wrote over his initials. It would be odd to initial notes before they were complete and the plaintiff put to Dr Lee that he had written over his initials at some point well after the consultation was over. This he denied. A sample of other clinical notes made by Dr Lee was tendered. In a number of cases it was obvious that Dr Lee had initialled notes in such a way that the top loop of the letter “L” in his initials intersected with a line of notes. Thus the fact that initials and the notes intersected could not result, on its own, in a conclusion that Dr Lee had added to his notes at some time well after the consultation to cover-up some negligence on his part.

22 The third oddity in the notes is that there is no gap between the last line of the notes of 28 March 1998 and the next entry which was made by another doctor on 29 December 1999. It was evident from the sample of Dr Lee’s notes that he has a practice of leaving at least one line between entries. This, however, is not, on its own, conclusive because there is no evidence before the court of the second doctor’s practice in relation to where he or she starts an entry on a sheet of progress notes. It may be that he or she routinely commences writing on the first available space below the previous entry. This seems unlikely as the doctor in question appears to leave plentiful space within the notes themselves, and it therefore does not seem that the person concerned is miserly with space on a written page, but it is insufficient evidence to prove that Dr Lee has added a line to his notes to prove that he had not been negligent.

23 The combination of these three peculiarities strikes me as raising a reasonable suspicion that the notes were amended by Dr Lee at some stage after the original notations were made. I find it particularly odd that he apparently changed pens in mid-sentence. This, more than any other feature of the notes, suggests later amendment. Even if one cannot be “comfortably satisfied” that the notes were altered and added to, and that Dr Lee has lied about that fact, the forensic evidence casts a shadow across Dr Lee’s credibility and leaves an unsettling sense that his notes, and the evidence based on them, may be false.

24 Nonetheless, even if one were to be satisfied that the notes had been amended at a later stage, it does not necessarily follow that they had been falsified. It is possible that Dr Lee in fact gave Mr El Khoury the sort of advice he claimed he did but did not make notes to that effect until Mr El Khoury brought this action. In other words, it is possible that the notes are a true record but not contemporaneous in all respects.

25 It is not clear to me that the notes are contemporaneous records of the consultation between Dr Lee and the plaintiff. I do not think that the notes can be regarded as reliable and therefore consider that they do not corroborate Dr Lee’s version of the conversation between himself and Mr El Khoury on that day. That being the case, we are left with Mr El Khoury’s version against that of Dr Lee.

26 Ms Melissa Totino, Mr El Khoury’s girlfriend, gave evidence that she had been told by Mr El Khoury that the doctor had told him that he had fractured his left little finger, that he would not be able to play football for four weeks and that the only treatment required was the application of a splint on his little finger. I had originally refused to admit this evidence because it related a second-hand hearsay representation of Dr Lee. Ms Totino was not present at the time of that representation was made.

27 Over the defendant’s objection, I admitted the evidence provisionally at a later stage pursuant to s.108(3) of the Evidence Act because it contained a prior consistent statement by Mr El Khoury. In order to save time I decided to defer a full consideration of the arguments for and against the admission of that evidence until I had received submissions in writing on the whole of the evidence.

28 A prior consistent statement of a witness is admissible if it is or will be suggested (as it has been here in relation to Mr El Khoury by the defendant) that the evidence of the witness has been fabricated or reconstructed. The dictionary of the Evidence Act defines a prior consistent statement of a witness as “a previous representation that is consistent with evidence given by the witness.” The Evidence Act does not seem to impose a requirement that the representation appear in a proof of evidence written or adopted by the witness him- or herself. While that will usually be the case, there so no particular reason in principle why this exception to the hearsay and credibility rules should be so confined. A representation by a witness may be found in his or her own witness statement or some other document but equally may appear for some reason in a statement or proof of evidence of another person. Hence, in my opinion, once Mr El Khoury’s credibility was challenged as having been fabricated or reconstructed, Ms Totino’s evidence of Mr El Khoury’s representation to her became admissible. That statement will therefore be admitted for the limited purpose of restoring Mr El Khoury’s credibility only and not to prove the truth of the representation. In other words, it is admitted only to prove that immediately after the consultation Mr El Khoury said that the diagnosis was one of a fracture of his little finger, that the treatment was a splint and that he would not be able to play football for four weeks. That evidence is relevant because it is consistent with what Mr El Khoury now says was said to him by Dr Lee at the time of the consultation.

29 The weight to be given to that evidence, given that Ms Totino is not an independent witness, had discussed the case with Mr El Khoury and had written her statement more than three years after the events in question, is, however, a matter which must be assessed in due course.

The expert evidence

30 Expert evidence was given for Mr El Khoury by Dr Masson, Mr El Khoury’s hand surgeon. Apart from evidence concerning the injury and the attempts made to surgically repair the damaged tendon, which has been summarised above, Dr Masson also gave evidence on the severity of the injury, its effect on Mr El Khoury’s ability to play football, on pain reported by him and on a number of issues of medical practice.

31 Dr Masson gave evidence that Mr El Khoury’s grip strength was “near normal”. The left hand was “very functional” and any restrictions caused by the injury were not great. In relation to pain reported by Mr El Khoury Dr Masson said that “it is conceivable that there may have been some pain going up to the elbow” but he could not account for pain in the middle and ring fingers, neither of which were injured. He said, “It doesn’t make sense to me, anatomically or physiologically.”

32 Dr Masson also reported that the type of injury suffered by Mr El Khoury is not uncommon for people playing contact sport. He said that “there are many footballers playing without a flexor tendon in their fingers and functioning well”. He did not think that the injury would be a significant problem for a footballer, whether it occurred on the dominant hand or not. Nothing about the injury prevented the plaintiff from playing football in his opinion.

33 Dr Masson agreed in cross-examination that the X-ray report had not mentioned or referred to an avulsion fracture of the distal phalanx of Mr El Khoury’s injured finger and that it could be difficult to identify such a fracture from the film. He agreed with the suggestion that the primary task of a General Practitioner in a case such as Mr El Khoury’s was to refer the patient immediately to a hand surgeon for assessment and treatment. In his opinion, part of the GP’s task was to impress upon the patient the urgency of seeking specialist attention and part was to arrange the referral itself. He said, “I think that patient care extends… to a level of care where if [the GP] believes that patient has a sufficiently difficult problem they should ensure that the patient gets to see someone. If the patient then takes it upon himself not to follow up on that referral, I think that’s the patient’s decision…”

34 In his view, a proper referral consisted in more than simply advising a patient to go to hospital to seek treatment; it meant writing a letter of referral and telephoning the hospital to advise it that a patient was being sent with a nominated problem. He conceded, however, that there was a distinction to be made between a patient suffering an acute injury and one requiring an investigation to determine whether they have a condition.

35 He also agreed that it would have been reasonable to have place a splint on Mr El Khoury’s finger to maintain the injured finger in one position on his way to hospital.

36 Dr Norman Walsh, who is a Fellow of the Royal Australian College of General Practitioners, gave expert evidence for the defendant.

37 In relation to whether there is some professional expectation or requirement that a GP follow up a patient who had been referred for treatment to a hospital, he gave evidence that in his experience hospitals perform and arrange all patient follow-up themselves. In his opinion, it would only be in unusual circumstances that a GP would become involved in the follow-up to an orthopaedic procedure carried out in a hospital. He said that if a GP were to be involved in the follow-up that would ordinarily be the decision of the treating orthopaedic surgeon or registrar.

38 He agreed with Dr Masson that a patient presenting with the type of injury seen by Dr Lee ought to have been urgently referred to a hospital or specialist hand surgeon because of the possibility of irreparable damage if treatment was delayed. He also agreed that it would be general practice to splint such an injury en route to hospital. He said that he would have been critical of Dr Lee had Dr Lee not referred Mr El Khoury for specialist treatment of the hand injury.

39 In relation to whether Dr Lee ought to have written a letter of referral and telephoned the hospital to warn it that Mr El Khoury was on his way, he said that he believed it is “ideal practice” to write a letter but that “when the need for hospital attendance is absolutely straightforward” and the patient is able to give the history directly “it could be argued that a referral was to some extent redundant”. He thought that a substantial number of GPs would not have written a letter of referral “in such an acute situation where… the injury was so straightforward it needed intensive treatment.” He conceded that hospitals prefer GPs to telephone when sending patients for treatment but, on the other hand, he thought that where an injury “spoke for itself” it might not necessarily be done.

40 He also was of the view that, once the patient had been referred to a hospital for intensive treatment, no obligation lay upon the GP to follow up the patient or to inquire whether or not the patient had attended the hospital. In his view, the duty of the GP was to ensure that patient was properly advised of the necessity to seek urgent treatment from a specialist.

Findings of fact and conclusions

41 In his evidence-in-chief Dr Lee said that he had told Mr El Khoury that he should go to hospital because he had a fractured finger and that it was not his practice “to treat an acute fracture like that.” In cross-examination he expanded on this evidence. He said that he had advised Mr El Khoury to hospital urgently. He said that he had explained to Mr El Khoury that it was important for him to see a hand surgeon urgently at the hospital. He said that he had explained to Mr El Khoury that, because it was a Sunday, it was necessary for him to go to hospital to see a hand surgeon because there was no hand surgeon available other than at the hospital. He said, “… because if he didn’t get the treatment quickly he may get a number of nasty complications, that’s what explanation is all about.”

42 By this evidence Dr Lee implies, if he does not say so in terms, that he gave Mr El Khoury a clear explanation that, if he did not attend the hospital and see a hand surgeon, dire consequences could follow. It was so important an issue and, if Dr Lee’s evidence is accepted, the advice was so clear and emphatic, that only a complete fool would have failed to attend the hospital and sought the urgent advice of a hand surgeon. Notwithstanding my reservations about Mr El Khoury, he did not appear to be a fool. Moreover, he was a keen rugby league player and it seems to me to be unlikely that he would have ignored clear advice that he had a serious injury which needed urgent treatment and which may develop “nasty complications” if not seen to immediately.

43 While the injury may have “spoken for itself” to doctors, it evidently did not to Mr El Khoury. In my opinion, it is more likely than not that Dr Lee either did not advise Mr El Khoury to seek urgent treatment from a hand surgeon at Concord Hospital, or, if he did, the advice and explanation given to Mr El Khoury was inadequate to convey to Mr El Khoury the seriousness of the nature of the injury, the types of possible complications which might flow if the hand was not urgently seen to by a hand specialist and the critical point that time was or may have been of the essence in having the injury treated if a tendon had been damaged.

44 It seems unlikely that a letter of referral was written to the hospital by Dr Lee and or that he telephoned. While I accept Dr Walsh’s evidence that, if the situation is made clear to a patient and the doctor is satisfied the patient understands the urgency of seeking specialist attention it is not necessary that a letter of referral be written, or that a telephone call be made, it is obvious that if a doctor writes a short note of referral and gives it to a patient, this, in itself, is a means by which a doctor can emphasise to a patient that the doctor’s advice is to see the specialist to whom the patient is referred. Similarly, if in the course of a consultation a doctor telephones a hospital and alerts it that he or she is referring the patient, and this is done in the patient’s presence or the doctor informs the patient that he or she has done so, this serves to emphasise to the patient the urgency of the situation.

45 The general nature of a treating doctor’s duty of care is well-established. The standard of care to be applied in this case was laid down in Rogers v Whittaker (1992) 175 CLR 479 and was more recently considered in Naxalis v Western Suburbs General Hospital. (1999) HCA 22. In that case McHugh J stated (at para 47):

In Rogers v Whitaker this Court rejected the Bolam test and held that a finding of medical negligence may be made even though the conduct of the defendant was in accord with a practice accepted at the time as proper by a responsible body of medical opinion. To many doctors, judges and lawyers, it must seem unsatisfactory that a doctor can be condemned as negligent by a jury when he or she has acted in accordance with a respectable body of medical opinion. But as long as there is evidence that other respectable practitioners would have taken a different view concerning what should have been done by the defendant, the issue is one for the jury, provided of course the evidence is reasonably capable of supporting all the elements of a cause of action in negligence.

46 Kirby J (at para 81) said:

In Rogers v Whitaker, this Court pointed out that the standard of care owed by persons possessing special skills is not determined “solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.” (1992) 175 CLR 479 at 487. The decision in Rogers v Whitaker amounted to a rejection of the so-called Bolam principle (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118). In Sidaway v Governors of Bethlehem Royal Hospital [1985] AC 871 at 881, the Bolam principle was stated by Lord Scarman in the following terms: "The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice." Instead, whilst evidence of acceptable medical practice is a useful guide for the courts in adjudicating on the appropriate standard of care, the standard to be applied is nonetheless that of the “ordinary skilled person exercising and professing to have that special skill.” (1992) 175 CLR 479 at 487.

47 If Dr Lee’s evidence were accepted, it appears to me that it would be difficult to make a finding that he had breached the duty of care imposed upon him. The evidence of Drs Masson and Walsh was largely consistent on that point. Dr Masson placed greater emphasis on the desirability of writing a letter of referral and telephoning the hospital to notify it of the impending arrival of Mr El Khoury and to alert it to the general nature of the injury. Dr Walsh did not contradict that evidence in terms but qualified to some degree. On the basis of that evidence, I do not think that there is a general standard of practice in relation to referrals which applies in virtually all circumstances. Whether a failure to follow those desirable practices will constitute a breach of the duty of care will depend on all the circumstances peculiar to the case. In this case, I would not be satisfied that Dr Lee had breached his duty of care if his alleged breach had consisted only in failing to write a referral letter or to telephone the hospital. That would set the standard unreasonably and unrealistically high if reference is made to the general standards of GPs. Whether a failure to write a referral letter or to telephone a hospital with depend on the all the circumstances. In this particular case, I would accept Dr Walsh’s assessment that it was, in effect, desirable rather than necessary that a letter be written or a telephone call be made.

48 Dr Lee’s case is that his duty consisted in examining Mr El Khoury, giving him first aid and referring him urgently for specialist treatment. The expert evidence called for both parties is consistent with this. This implied a further duty to ensure that the patient understood clearly that the injury was significant and, if not urgently treated, could result in significant impairment of the function of the finger. Dr Walsh’s evidence was very clear on this point. It was, in my opinion, not only incumbent on Dr Lee to tell Mr El Khoury to go to hospital but to ensure that Mr El Khoury knew why he should do so urgently and to convey to him the possible risks of ignoring the advice. The critical function of the GP was to convey the required message to the patient himself and not so much notifying the hospital or writing a referral letter.

49 Even if Dr Lee’s notes are accepted as genuinely contemporaneous, they do not record the nature of the explanation and advice Dr Lee claims he gave Mr El Khoury. And it was obvious during the course of the evidence that Dr Lee was merely reconstructing his evidence on that point. I suspect that magistrates and judges, who also deal with large volumes of persons, and most of whom do not recall the fine details of all the cases they see over the years, would have a very similar experience as Dr Lee if put to the test. Thus I emphasise that when I say that I believe that Dr Lee is largely reconstructing his evidence it is not meant to convey a belief that he is intending to lie or deliberately mislead the Court; it is a comment about the fallibility of human memory. (The reliability of the notes, however, is another question.)

50 I believe that Mr El Khoury also reconstructed his evidence to some degree but probably to a lesser degree than did Dr Lee if for no other reason that he had a deep personal interest in his finger, the advice he received and the treatment he was given. Dr Lee is a busy GP who, no doubt, tries as hard as possible to remain objective and disinterested in making his assessments of a patient. Mr El Khoury was not a regular patient of his and there was no special reason for Dr Lee to have made an particular mental note of his encounter with Mr El Khoury. In Mr El Khoury’s case, the question is not so much whether is honestly reconstructing his evidence but whether he is fabricating it for monetary gain.

51 I am hesitant to accept Mr El Khoury’s version that he was merely told by Dr Lee that he was suffering from a fracture and that he would be back playing rugby league in a month’s time, and that the only advice he had received had been at his own prompting of Dr Lee. What he reported may well have been part of what he was told by Dr Lee but it is difficult to believe that this was all he was told. Ms Totino’s evidence does not really assist in this regard, her statement having been made years after the events in question. While her evidence is relevant, it is also probably a reconstruction to some degree. In my opinion, however, Dr Lee exaggerated the strength and clarity of the advice he claimed to have given Mr El Khoury.

52 Having considered the possibilities open on the evidence, and while granting there are obvious difficulties in making such a finding of fact, because this is a case of word against word, it seems to me that Dr Lee may have given some advice to Mr El Khoury but did not convey to him adequately the necessity of urgently seeking specialist attention because he faced the real prospect of significant, permanent impairment to his little finger if he did not and did not check to confirm that Mr El Khoury understood the advice given to him and the consequences of not heeding it. Although a failure to properly advise, by which I mean also a failure to ensure that the patient understood the advice given, is not specifically particularised in the plaintiff’s statement of claim, it was, I think, implicit in the plaintiff’s case as pleaded and as presented. The case presented by the defendant was that the advice had been given strongly in clear terms. I do not think that the failure to particularise this point in terms prejudices the defendant in any way.

53 I think that it is implausible that any rational person advised in the fashion Dr Lee claims Mr El Khoury was would then have waited four weeks, with his or her finger in a splint, before seeking specialist treatment. There is no question that Mr El Khoury is a rational person. It is possible that Dr Lee believed at the time that he had adequately conveyed the message he needed to get across to Mr El Khoury but, in my opinion, the weight of evidence demonstrates that he did not. It follows, therefore, that Dr Lee breached his duty of care to Mr El Khoury.

54 In the light of this finding, it is unnecessary to consider whether that duty of care may have been breached in other ways.

Damages

55 There is no expert evidence to show that the plaintiff was denied a real opportunity to play professional rugby league. If anything, the evidence tends to show that it was due to his own failure to maintain fitness and keep his weight down that, if anything, resulted in a decline in his playing standard. This, in turn, indicates a lack of sufficient ambition. In my opinion, the plaintiff suffered no economic loss as a result of his injury.

56 No claim for medical expenses or out of pocket expenses was quantified.

57 In my opinion, much of the evidence given by Mr El Khoury about his pain and his physical disability following the injury was exaggerated and embellished either consciously or unconsciously. I accept the evidence of the treating surgeons that there is no physiological explanation for some of the symptoms from which Mr El Khoury claimed to be suffering. On the other hand, there is no doubt he suffered a real and permanent injury which probably gives him ongoing discomfort and that this would probably not be the case had he been treated by a hand surgeon within 72 hours of being injured.

58 I have been referred by the plaintiff to Rooty Hill Medical Centre Pty Ltd v Gunther [2002] NSWCA 60 (25/02/02). on the question of quantum. In my opinion, interesting as that case is, it is distinguishable from this one as it concerned a significant diminution in the plaintiff’s capacity to work and, in any event, the question for the Court of Appeal did not concern the measure of damages.

59 Given the relatively minor, though permanent, nature of the injury, the pain and suffering that accompanied the attempts to repair the damage by tendon graft (although had the injury been attended to as it ought to have been surgery would have been necessary), and a degree of permanent disfigurement, it seems to me that it would be reasonable to award the plaintiff $18,000 in general damages.

Verdict and Judgment

60 There will be a verdict for the plaintiff in the sum of $18,000 and judgment accordingly. Interest is to be calculated by the Registrar pursuant to s.39A of the Local Court (Civil Proceedings) Act from 29 March 1998. Costs will follow the event in an amount to agreed within 28 days or assessed.