Hansen v Babich
[2008] WASCA 137
•3 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HANSEN -v- BABICH [2008] WASCA 137
CORAM: PULLIN JA
MILLER JA
BEECH AJA
HEARD: 9 JUNE 2008
DELIVERED : 3 JULY 2008
FILE NO/S: CACV 156 of 2006
BETWEEN: VENUS LINDA HANSEN
Appellant
AND
PAUL JEROME BABICH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HH JACKSON DCJ
Citation :HANSEN -v- BABICH [2006] WADC 189
File No :CIV 264 of 2003
Catchwords:
Appeal - Negligence - Medical practitioner - Warning - Treatment by other practitioners - Scarring to back - Whether necessary to warn of increased risk of scarring in the event of infection - Whether adequate reasons given by trial judge - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B L Nugawela
Respondent: Mr P D Quinlan
Solicitors:
Appellant: CLP Lawyers
Respondent: Pynt & Partners
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
PULLIN JA: The appellant sued the respondent for damages arising from an alleged negligent failure to give warnings about risks relating to an operation carried out on a mole on the appellant's right shoulder. The appellant alleged that if the warnings had been given she would not have undergone the operation and would not have been left with a scar on her shoulder. The allegations and the action were dismissed by H H Jackson DCJ. The appellant appeals against that judgment.
The full details of the pleadings and the evidence given at trial are set out in his Honour's reasons: Hansen v Babich [2006] WADC 189 and it is therefore not necessary to repeat all that the trial judge has recorded. However, it is necessary to summarise the evidence, identify what was in issue, and summarise the findings made by the trial judge.
6 February 1997 visit to the respondent's rooms
The parties agreed on the pleadings and in the evidence that the appellant went to see the respondent at a medical clinic on 6 February 1997. It is not in dispute that during this visit the respondent noticed some moles on the appellant's back in the region of her right shoulder. It is not in dispute that the respondent advised the appellant to have a biopsy carried out on the worst‑looking mole (which was only 3 mm in diameter) to check that it was not a precursor to melanoma and that he recommended that the appellant check with her partner as to whether he had noticed any change in the appearance of the moles over time. He asked her to return the following week.
13 February 1997 visit to the respondent's rooms
It is not in dispute that the appellant returned to the respondent's rooms on 13 February 1997 and a punch biopsy was administered. This resulted in the removal of a small piece of flesh about 4 mm in diameter. The appellant gave evidence that she was given no warning about any possible adverse consequences which might follow before this procedure was carried out. It is not this procedure which the appellant alleges resulted in any complications but nevertheless the respondent said that he did give a warning that there was a small risk of infection and scarring and no expectation of stretching of the scar because the scar would be small, but that with any scar there was a risk of stretching.
The respondent's evidence was that she said to the respondent during this visit that she wanted the other moles removed by excision. The respondent's evidence was that he advised that this was not necessary, but that she insisted that they be removed. The respondent's evidence was that he told her that there would not be time on 13 February 1997 to excise the other moles but that he would do the punch biopsy on the small mole. This procedure was carried out and he sutured the wound. The respondent said that he could perform the excision of the other two moles when she came back to have the suture removed. The respondent said that there was a risk of scarring if the other two moles were removed. His evidence‑in‑chief was that:
I pointed out that the scarring from removal of lesions, particularly in these areas of the back, was unpredictable and could occur abnormally; people who even previously had scarred well could unpredictably scar badly with a thickened scar or a stretched scar; that the colour could be out of character with the rest of the skin; and there was also a risk of infection from doing the procedure which would increase the risk of scarring; and there's also a risk of allergy to the agents used in the procedure.
The respondent said that once the punch biopsy had been carried out:
I did make it aware to her that with any scars there is a risk of stretching, that she should avoid lifting, and I asked her in what particular activities she would be doing that and she said, you know, with her children and I said in that case she should avoid lifting her children.
The appellant denied that any such warnings was given.
19 February 1997 visit to the respondent's rooms
There is no dispute that on 19 February 1997, the appellant attended again in the respondent's rooms to have the suture removed. The punch biopsy had resulted in the entire removal of the small mole. One of the other two moles was on the right shoulder not far from where the punch biopsy had been carried out and the other mole was on the left side of the back. The action and claim relates to the incision made to remove the mole on the right shoulder.
The respondent gave evidence that he informed the appellant that the pathology results indicated that the mole removed in the punch biopsy was benign and that he wondered whether the appellant had changed her mind about the excision of the other two moles. The respondent gave evidence that the appellant said that she still wanted to proceed. The respondent gave evidence that he again explained the risks of scarring, infection and allergy and that the area of the mole was an area prone to stretching. His evidence‑in‑chief was in these terms:
Can I just ask whether there was any discussion with her on this occasion in relation to any risks associated with the procedure?‑‑‑The discussion was while the results were given to her, but when that was done and she indicated that she still wanted to proceed in the light of a week's time to think about the risks which I explained; she said she still wanted to proceed and therefore I explained those risks again, of scarring, infection, allergy to the components, and in particular in this area - particularly the right lesion, which was more associated with the movement of the arm - I indicated that this is an area which is prone to stretching and that's why I - you know, I recall asking about what she did that would put her at risk of stretching of the scar, which was the question I put to her the week before.
That was in relation to home duties?‑‑‑That's correct.
Did you say to her anything specific in relation to the children?‑‑‑I did say to her that she should not be lifting the children with that side of her body - that arm for a period of at least three weeks.
In cross‑examination, after being questioned closely about what warnings he gave, the respondent said:
What I'm saying is that I give my warnings to - and I gave my warning in this case in a manner which I recall and included the risk of scarring, infection, allergy, stretching of the scar and abnormal scar formation.
The appellant denied that any of these warnings were given. The appellant also denied that she was informed of the pathology results on the skin removal by the punch biopsy.
The mole on the right shoulder was measured by the respondent. His evidence was that it was 6 x 8 mm in size. He applied antiseptic and a local anaesthetic to the area and carried out the excision of the mole on the right shoulder (and the one on the left shoulder) using sterile equipment. The wound from the incision on the right shoulder was 24 mm in length and 7 ‑ 9 mm in width. The wounds were sutured, Betadine was applied and then the wound was dressed with sterile dressings. The appellant was advised to return in three days so that the wound could be inspected to see that there were no signs of infection. He advised that lifting using the right arm should be avoided.
22 February 1997 visit to the respondent's rooms
There is no dispute that the appellant returned to the medical centre on 22 February 1997. The respondent's evidence was that the wound appeared 'absolutely fine' with 'no signs of infection, no redness, no discharge'. The respondent asked the appellant to return in a week's time for removal of the sutures.
28 February 1997 visit to the respondent's rooms
On 28 February 1997, the appellant returned to the medical centre and half the sutures were removed by the respondent. She was asked to return in a week to have the remaining sutures removed.
3 March 1997 visit to the respondent's rooms
The appellant attended on 3 March 1997 and the respondent removed the rest of the sutures. The respondent gave evidence:
At that stage, once again the wounds looked absolutely fine, no signs of infection, no redness, no discharge, and I was happy that no stretching had occurred at an early stage and felt that that was appropriate to remove the sutures at that stage, which I proceeded to do.
22 April 1997 visit to another Doctor
The medical records of the medical centre where the respondent worked revealed that the appellant saw another doctor on 22 April 1997 and received a prescription for antibiotics for an infection in the right back. It was not expressly stated in the evidence that this infection was at the site of the incision which had been made by the respondent but even if it was, the appellant's only comment about this was that she was 'not sure' whether the infection was 'slight'. This other doctor was not called to give evidence.
30 April 1997 visit to the respondent's rooms
The respondent gave evidence that he saw the appellant on this date in relation to a neck problem and that he did not examine her back on this date. The respondent gave evidence that the appellant informed him that she had started work at an egg farm, that she did not say there was any problem with the wound, that he did not expect any, and he did not ask if there was a problem.
The appellant's evidence about visits to doctors at the medical centre after the removal of the moles
The appellant gave evidence that she saw the respondent at an unspecified date and agreed that the respondent had looked at the wound. Her evidence was:
He said it looked okay to him but it was sore to me. I was really worried so he took me and seen another doctor there; Dr McCann I think his name was. He said that he was involved in skin specialists and stuff so he could have to look at it; he might be able to help.
The evidence that the respondent referred the appellant to Dr McCann was contradicted by evidence of Dr McCann and the medical centre records which showed that another doctor, a Dr Bradley, referred the appellant to Dr McCann. The respondent was not aware in June 1997 that the appellant saw Dr McCann or Dr Bradley.
The appellant gave evidence that on a date that she could not recall, that 'the scar - the wound was red' or 'very red' and said that she was told that there was 'nothing wrong with it'. Her evidence was:
So the individual doctors that you saw, not necessarily Dr Babich, all inspected the wounds?---Yes.
And they all told you there was nothing wrong with it?---They thought there was nothing wrong with it. They thought it looked fine.
There was no indication of any infection?---Not at that time, I don't think.
And it was the case, wasn't it, that there was no ongoing problem with infection on the right side of the back at that time?---I'm not sure at that time.
Appellant sees Dr McCann - 24 June 1997
The appellant said she saw Dr McCann for the first time on 24 June 1997. She went to see him not because of infection but because of stretching of the scar.
Dr McCann gave evidence. He could not recall the conversation on 24 June 1997, but he referred to his notes and gave evidence as follows:
I've written that Venus Hansen was concerned by the scar on her right shoulder blade or scapula, that it was stretched, presumably from the mole excision performed four months prior in February. I summarised the consultation that she wanted the scar revised or, in other words, redone and hopefully improved. As part of my investigation of why people want to do - have it done and their circumstances, I've made the notation that she works at the Golden Egg farm bending over and she needs Emla. Emla is an abbreviation for a local anaesthetic cream … why I've written that is firstly bending over is – the nature of her job is bending, twisting, I think stacking eggs, I think it was, so that is a repetitive activity which puts a lot of stretch on the shoulder bade region, so in my mind that would make it a difficult case.
His evidence was that he saw no signs of infection on 24 June 1997 and that the 'revision' that he was asked to carry out by the appellant on the scarring would not have been carried out if it had been infected.
Appellant sees Dr McCann - 26 June 1997
On 26 June 1997 Dr McCann removed a scar area 25 mm x 7 mm, which was about the same size incision as that made by the respondent in February. The incision made by Dr McCann was slightly larger because he also removed another mole nearby.
Appellant goes to Rockingham Hospital - 20 July and 24 July 1997
Then, unknown to the respondent or to Dr McCann, the appellant went to Rockingham Hospital on 20 July 1997 and saw a doctor there. That doctor was not called to give evidence. The hospital notes were however tendered. They reveal that the appellant attended because the wound was infected. Swabs were taken and antibiotics prescribed.
The appellant again went to the Rockingham Hospital on 24 July and saw a doctor. That doctor was not called to give evidence. However, the hospital notes were tendered. These notes revealed that the appellant had presented because of pain and state, 'today wound re‑excised and re‑sutured'. The notes identify the growth of staphylococcus aureaus, for which antibiotics were prescribed.
The appellant gave evidence that the re‑excision was carried out by a Dr Macri because the wound on her right shoulder was painful. The appellant's evidence was that she saw him on a number of occasions and that he had recommended that the wound be reopened to stop infection.
Appellant returns to Dr McCann - November 1998
The appellant said that later she went to see Dr McCann and he confirmed that this was so. This was in November 1998, over a year after the June 2007 procedure carried out by Dr McCann. Dr McCann then found 'an abnormal scar'. His opinion was that the scar was not the result of his own previous surgery. He measured the scar to be 10 cm in length (ie three times longer than the incision made by Dr McCann) and performed a re‑excision. The scar was agreed to be 8 to 8.5 cm in length and 4 cm in width at the time of trial. This was a much larger scar than Dr McCann would have expected from the procedure that he or the respondent carried out.
Expert witnesses
Some expert witnesses were called by the appellant. Associate Professor McBride gave evidence about the need for warnings concerning scarring, stretching and infection. Her evidence will be referred to in relation to ground 1. Dr Huntley‑Mitchell gave evidence but it is not relevant to this appeal. A Dr Hanikeri, a plastic and reconstructive surgeon, examined the scar which was evident at trial. Dr Hanikeri's examination revealed was that this was consistent with an 8 cm long incision. Dr Hanikeri did not give evidence at trial, but his report was tendered into evidence by consent. A further reference will be made to his evidence when dealing with ground 1 of the appeal.
A Dr J F G Bell, a general practitioner with a special interest in skin cancer and its surgical removal, was called as an expert by the respondent. His evidence is not relevant to this appeal.
The trial judge's reasons for judgment
The trial judge set out the pleadings which revealed the issue about whether the respondent gave warnings. The appellant pleaded relevantly that the respondent was under a duty to warn about the risks of infection, scarring and the risk of any scar stretching. The respondent admitted that such warnings had to be given. His defence was that such warnings were given. On the pleadings there was a claim by the appellant that there had been negligence by the respondent in the performance of the operation he carried out but that claim has been abandoned.
The trial judge then set out between [12] to [43] salient aspects of the appellant's evidence including her evidence that she was given no warnings about risks either by the respondent or Dr McCann. The trial judge also set out salient aspects of the respondent's evidence and Dr McCann's evidence and set out relevant parts of the medical records and reports and the evidence about Dr Macri's operation.
Having done so, the trial judge under the heading 'Conclusion' then noted that it was not in contest that the respondent owed a duty of care to the appellant to give a warning about the risks of infection, scarring, disfigurement or stretching. His Honour observed that the questions raised were matters of fact as to whether the duties were breached and whether and to what extent any breaches were causative of damage or loss.
The trial judge concluded that the appellant was a poor historian. His Honour considered that the appellant's evidence was often confused, in error or exaggerated. His Honour paid attention to the contemporaneous notes made by the medical practitioners. His Honour considered that both the respondent and Dr McCann were careful and accurate witnesses and that their evidence was supported by the contemporaneous notes. The trial judge accepted that the respondent recalled a good deal of what had transpired in addition to the matters set down in his notes. His Honour noted that the respondent's notes in the medical records did not contain any evidence that the respondent gave warnings, but nevertheless found that the respondent did warn the appellant about the risks of infection, scarring and stretching. His Honour rejected the appellant's evidence that she was not told about the biopsy results, accepted the respondent's evidence that despite his attempts to defer excision, that the appellant insisted on excision. The trial judge then dismissed the claim.
Appellant's grounds of appeal
The appellant's grounds of appeal (after amendment at the hearing of the appeal) read:
A question of breach
1.1Leaving aside the trial Judge's rejection of the Appellant's testimony that she was not warned at all of the risks of the biopsy or excision procedures, judgment ought have in any event been given for the Appellant given the uncontradicted expert evidence that the Respondent ought to have warned the Appellant of several additional risks but failed to do so. On the Respondent's pleaded and unpleaded case, he never warned the Appellant of these particular risks:
Particulars
(a)Professor McBride gave uncontradicted evidence that the Appellant should have been specifically warned of the risk of the scar enlargening or worsening through subsequent infection;
(b)Dr McCann and Dr Hanikeri stated that the Appellant faced an increased risk of infection and scar stretching due to the anatomical location of the scar.
1.2Alternatively, his Honour failed to provide any or adequate reasons for impliedly rejecting (or not expressly dealing with) the evidence and submissions concerning the above particular risks.
The judge's role
2.In summarily preferring the evidence of the Respondent over that of the Appellant, his Honour failed to provide adequate reasons for decision in the circumstances of this case; alternatively failed to properly use the advantage he possessed as trial Judge;
…
Causation
3.His Honour erred at [113] in rejecting the Appellant's evidence that she was not told of the biopsy results and further erred in (consequently or otherwise) concluding that had warnings been given she still would have undergone the surgery. Alternatively, his Honour erred in failing to provide adequate reasons supporting these findings.
Ground 1
Ground 1 involves a very short point. By ground 1, the appellant does not challenge the finding that the respondent gave warnings about infection, scarring and stretching. Ground 1 contends however, that warnings should have been given of 'several additional risks'. When pressed during oral submissions to identify the further warning that reasonable care required the respondent to give, counsel for the appellant said that the appellant should have been warned that as a result of stretching there could be infection and that the scarring 'could be significantly worse'. The appellant submitted that the evidence that such a warning was necessary came from the evidence of Dr McCann, Professor McBride and Dr Hanikeri.
In fact, when the evidence was examined none of the three witnesses gave evidence which supported this ground. The evidence of Dr McCann and Dr Hanikeri does not have to be referred to. They gave no evidence which even arguably supports the ground. In the written report of Professor McBride she said in answer to a question as to what advice the respondent should have given regarding the risk of infection:
Dr Babich should have advised Ms Hansen that any surgical procedure has a risk of infection. He needed to give her post‑operative advice: namely to keep scar dry for 48 hours and to return if she had pain or ooze immediately for review. He needed to have advised her that if the wound became infected a worsening of a scar could result.
Counsel for the appellant attempted to draw out of this that this meant that a reasonable medical practitioner should have advised that if the wound healed and then stretched and later opened up and became infected, a worsening of a scar could result. There are two difficulties for the appellant in relation to this submission and this ground. The first is that what was said by Professor McBride was no more than an opinion that a warning had to be given about the risk of infection and scarring. The trial judge found that such warnings were given. The warning which was given by the respondent was not temporally limited and it indicated that with such a procedure there was a risk of infection and scarring (and stretching). He advised that infection could arise from doing the procedure and that scarring was unpredictable and could occur abnormally. See [61]. He also referred to the fact that the location of the scar meant it was prone to stretching [64]. This was a warning in accordance with the warning which Professor McBride said had to be given. The second difficulty for the appellant, is that the warnings which the appellant pleaded had to be given, were found to have been given. There was no plea that a warning had to be given in the modified terms now contended for by the appellant. Ground 1 must be dismissed.
Ground 2
Ground 2 revealed confusion in the mind of the draftsman. It is headed 'The trial Judge's role' and it begins with the unambiguous statement that the trial judge 'failed to provide adequate reasons'. It then contains a reference to the trial judge failing to 'properly use the advantage he possessed as trial Judge' and then contained particulars contending that findings were 'not reasonably open on the evidence' which suggested that the ground was challenging findings of fact made by the trial judge. The possibility that the appellant was addressing both a failure to provide adequate reasons and a challenge to findings of fact, led to questions from the court which resulted in counsel for the appellant stating unambiguously that the only point raised was a challenge to the adequacy of the reasons.
That being so, it is necessary to keep firmly in mind that the trial judge considered the evidence of the appellant, made a finding that warnings were given and reached his conclusion by preferring the evidence of the respondent that warnings were given and by rejecting the appellant's evidence that no such warnings were given. The only issue which remains is the appellant's contention that the reasons given for making the finding and for preferring the respondent's evidence and rejecting that of the appellant were inadequate.
It is not in dispute that where there is a right of appeal, reasons must be sufficient to enable the parties to know why they won or lost. The basis for the decision must be apparent because otherwise a losing party cannot know whether there has been a mistake of law or of fact: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] ‑ [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].
What will be sufficient by way of reasons will depend upon the nature of the case. As the court noted in Mount Lawley at [27], some cases turn upon a simple contest of credibility between two witnesses and others involve detailed and complex factual and legal issues requiring close reasoning and analysis. This is a case of the former kind. The trial judge heard conflicting testimony from the parties. The respondent testified that oral warnings were given about the risks associated with the procedure. The appellant said no warnings were given. The respondent's evidence was that he made no written note of the warnings which were given, but he said he remembered giving the warnings.
Where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to: Mount Lawley [28]. The trial judge made detailed reference to both sets of evidence in this case.
Further, where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why: Mount Lawley [28]. For the reasons that follow, the trial judge's reasons sufficiently explained why he preferred the evidence of the respondent (and Dr McCann) to the evidence of the plaintiff.
The trial judge must have been clearly alert to the 'dangers of too readily drawing conclusions about truthfulness and reliability solely' from the appearance of the two witnesses in the witness box (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [30]) because he did not simply say that having observed the two witnesses he preferred one witness against the other. Rather, he gave reasons why he preferred the evidence of the respondent rather than the evidence of the appellant. He found that the appellant was 'a poor historian' and had 'poor recollection'. He found that her evidence was often 'confused', and in 'error'. Examples of her poor recollection and her poor memory of the history of events and her confusion and error appear in the evidence referred to in the earlier part of his Honour's reasons and in the summary of the evidence set out above. He found that the respondent was a 'careful, accurate witness' and that his evidence was 'supported' by contemporaneous notes, meaning that insofar as his evidence about the history of events could be compared with the contemporaneous notes, his evidence could be supported as accurate. The trial judge considered that so far as the respondent made notes, the notes revealed him to be a 'careful, accurate practitioner'.
These reasons given by the trial judge explain to the appellant, and allow her to understand, why she lost the case. She lost the case because the defects in her testimony and the accuracy of the respondent's recollection of events led his Honour to prefer the evidence of the respondent when it came to the issue about whether warnings were given.
However, the appellant also contends that the reasons are inadequate because there were issues which existed which were not dealt with by his Honour in his reasons and that if they had been dealt with, they might have led his Honour to a different conclusion. The points were as follows:
(a)The appellant submitted that the evidence of the respondent was 'glaringly improbable' because it was unlikely that a doctor could remember what was said to a patient many years before. It is not clear how far this submission advances the appellant's case because if that is so, then the same observation could be made about the appellant who made no notes at all concerning the events of 1997 and who, on her own evidence, gave her first detailed statement about events in 2005, the year before the trial. There is no rule that a judge must reject a person's testimony because it is about events occurring years before. In any event the submission that the evidence of the respondent's evidence was glaringly improbable, is a drift back into the abandoned attempt to challenge findings of fact.
(b)Counsel for the appellant next submitted that the respondent had not recorded the fact that he had given warnings when it was usual practice in 1997 for medical practitioners to do so, that this cast doubt on the respondent's evidence and that the trial judge should have discussed this in his reasons. In fact, when asked to identify who gave evidence that this was the usual practice for medical practitioners in 1997, counsel for the appellant pointed only to the evidence of Dr Bell and Dr McCann, both of whom merely gave evidence that it was their practice to make a note of warnings they gave, not that it was the usual practice of medical practitioners to do so in 1997. The premise for this submission therefore disappeared.
(c)Counsel for the appellant next contended that the respondent had pleaded in his defence that only four warnings had been given, namely warnings about infection, scarring, stretching and a possible allergic reaction. Counsel for the appellant both at trial and on the appeal contended that in his evidence the respondent gave evidence that there were 10 separate warnings given and that it was unlikely he could recall giving 10 warnings. It became evident during submissions to this court that the '10 points' were arrived at by counsel for the appellant who had by some means divided up the evidence given by the respondent about infection, scarring, stretching and potential allergy into '10 factors'. When given the opportunity at trial, the respondent said what he told the appellant and which is set out above. The contention that 10 separate warnings were given has no foundation. In any event this is, once again, a drift back to a challenge to findings of fact. Any arguable inconsistency between the defence and the respondent's evidence was not so clear and so significant as to require the trial judge to expressly deal with it in his reasons.
(d)Counsel for the appellant next contended in the outline of submissions that the respondent said 'as I talk, I am recalling' that this demonstrated the 'necessarily reconstructive nature of his memory process' that it was unlikely he would recall as he was giving evidence and that the trial judge should have referred to this in his reasons. The quoted testimony was not given by the respondent but he did say something similar, not in relation to the issue in the case, namely whether warnings were given, but about the time when the excisions could be carried out. This revealed nothing more than that the respondent recalled a particular piece of information when he gave evidence. This is not remarkable and it is not a point the trial judge had to mention.
(e)It was next contended by the appellant that in cross‑examination of one of the appellant's witnesses, namely Professor McBride, that it was put to her by counsel for the respondent that the respondent's 'impression was that she wanted the moles removed for cosmetic reasons rather than due to any concern about melanoma' but that when the respondent gave evidence, his evidence was that she said that she wanted them removed because of a concern about cancer. The suggestion is that this difference revealed that he said one thing in his evidence and by implication had told his counsel something else, thereby suggesting that the respondent's evidence was unreliable and that his Honour in his reasons should have addressed this in deciding whether to accept the respondent's evidence. In fact, the evidence of the respondent revealed that the respondent 'couldn't be sure exactly why it was' she wanted the moles removed and that he did not think it was 'really' cosmetic reasons which led her to the decision to have the operation. The respondent was never asked whether he had once told his lawyers that the reason the appellant gave for wanting the moles removed was for cosmetic reasons. This is a minor point which does not reveal error in the trial judge's reasons. It is not necessary to make findings on every piece of evidence given in the trial. See Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73] (Owen J); SNF v Jones [33].
(f)Similarly, counsel for the appellant said that the alleged inconsistencies referred to above, particularly in relation to the last point must, by inference, have shown up in an earlier written statement which counsel for the respondent was referring to and that therefore there was by implication an inconsistency between the earlier statement and his evidence in court and that this should have been referred to and dealt with by the trial judge in his reasons. However, no effort was made by counsel for the appellant at trial to cross‑examine the respondent as to whether he had instructed his counsel to put the particular point to Professor McBride. It is possible that counsel for the respondent had misunderstood his instructions. The inference the appellant would have the court draw was not the only inference open. It was not necessary for the trial judge to consider and discuss the point the appellant attempts to make.
(g)It was next submitted that the appellant had the opportunity to correct and amend the defence to cover the above points. There is nothing in the above points which indicate that it was in any way necessary to amend the defence which clearly raised the critical issue between the parties about whether warnings were given and the substance of the warnings said by the defendant to have been given.
(h)Counsel for the appellant also attempted to make some point of the fact that in a note made by the respondent in the medical records in relation to the 6 February 1997 attendance, the respondent had noted 'will discuss with partner of nine years and return for biopsy one week'. It was submitted that this phrase was in some way inconsistent with the testimony of the respondent that they should 'consider a punch biopsy' the next week and that he would 'recommend' a punch biopsy when she returned. It was difficult to understand what nuance of difference there is between the notes and the testimony and it is likely that the trial judge would have had the same difficulty. The appellant's submissions fixed on the word 'return' in the notes. However, the reference in the notes to a discussion with the appellant's partner is not to be overlooked. It is not obvious that there is any inconsistency between the evidence
the respondent gave and his note. It was not necessary for the trial judge to refer to the point.
(i)Finally, submissions were made that the trial judge should not have accepted that the appellant was a poor historian. The ground of appeal is confined to a complaint about the adequacy of reasons and not about the findings of fact made. This point therefore has no merit. It also had no merit even if the finding was challenged because the appellant was unquestionably a poor historian.
Ground 2 should be dismissed.
Ground 3 - causation
Ground 3 concerning causation only arose if ground 1 succeeded. Ground 1 failed and so ground 3 does not have to be considered. If only ground 2 had succeeded, there would have to have been a fresh trial and it would have been unnecessary to deal with ground 3.
The appeal must be dismissed.
MILLER JA: I agree with Pullin JA.
BEECH AJA: I agree with Pullin JA.
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