Maria Caruso v Donald Beard No. SCGRG 96/991 Judgment No. 5805 Number of Pages 14 Tort

[1996] SASC 5805

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Tort - miscellaneous torts - negligence - special relationships and duties, professional persons - torts - negligence - professional persons - medical negligence - whether doctor breached duty of care - whether doctor adequately informed patient about the treatment rendered.

Trespass - trespass to the person, assault - torts - trespass - trespass to the person - assault and battery - whether plaintiff consented to the administering of an injection. Whether it is appropriate to allow fresh evidence to be tendered on appeal under Supreme Court Rule 97.18, for the purpose of impeaching party's own witness from the trial - held not to be appropriate in the circumstances.

Supreme Court Rules r97, r96B; Magistrates Court Act 1991s40, referred to. F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 109 ALR 625; Summersides v Rasch Judgment No 4209 (1993); Chatterton v Gerson (1981) 1 All ER 257; Devries v ANRC (1993) 177 CLR 472, applied.

HRNG ADELAIDE, 24 July 1996 #DATE 10:10:1996

Counsel for appellant:     Mr E G Reinboth

Solicitors for appellant:    Stanley and Partners

Counsel for respondent:     Mr T J H Jackson

Solicitors for respondent: Wallmans

ORDER
Appeal dismissed.

JUDGE1 Lander J Introduction 1. This matter arises as a result of medical treatment provided by the respondent, Mr Donald Beard, who is a specialist general surgeon, to the appellant, Mrs Maria Caruso, on 4 June and 6 July 1992. The appellant was referred to Mr Beard by her general practitioner, Dr Giordano, for the management of her recurrent bi-lateral varicose veins.

2. The appellant's claim against Mr Beard at trial, which was dismissed by the learned Magistrate, was for assault and battery, negligence and breach of contract. The appellant appeals against the learned Magistrate's dismissal of the action.

The appellant's account 3. It is common ground that Mr Beard first saw Mrs Caruso on 4 June 1992 at his rooms at 332 South Terrace, Adelaide. During the trial she said that they discussed her leg for a "little bit" and then Mr Beard examined her leg. Following this, Mr Beard explained to her that sometimes an injection is given but that it was not suitable for her as her veins were too big. She then said "I prefer to have the operation but not injectionÉI said I want to wait a little bit. I want to lose some weight." Mr Beard, according to her evidence, then handed her a paper about dieting and she went home and waited a month until her next appointment. She was asked by her counsel, Mr Reinboth, "And about the injection did he tell you anything." And she replied, "No, we didn't discuss. We just said that they were not suited for my legs because my legs were already aggravate so they are no good for my legs. That's all he said."

4. Again it was common ground that there was a second consultation which occurred on 6 July 1992 at Mr Beard's rooms at North East Community Hospital. In her evidence, Mrs Caruso said that Mr Beard called her into a room and then he went off somewhere. She sat on the bed with her feet on the stool and "after a little while he just come out with injection in his hand." Later Mrs Caruso said "I saw his injection in his hand. He comes out and he put his stump next to the stool, and I ask him - I said 'Why, what's that for'. He didn't answer me. He was a little bit annoyed. And then a couple of minutes and he done the injection in my legÉand after he did the injection he told me to lay down on the bed". She stated that she said, "Why for - whyÉWhat's the injection", but that he did not answer her.

5. Mrs Caruso said that after being given the injection, she lay down on the bed and the medicine from her legs went right up in her head and that she felt very hot. Mr Beard asked her how she was feeling and she replied that she felt hot. He then replied, "This is the temperature of the room". Mrs Caruso said that when she got off the bed, she was very cross with him. Her evidence was that she said "You're a bloody crook doctorÉWhy did you have to do forÉI was very sick many years ago with one injection". He then told her that if she was going to have any problems it was going to be in the leg. After that, he weighed her, gave her a little card for a further appointment and said, "If you have any problems you can ring me even at home" and she went home.

6. Mrs Caruso claimed that she became "really sick" after the injection, that she felt a burning sensation in the leg for "three or four, five months", that she had a rash on her face and her eyes were damaged, that she suffered pain in her stomach and back for "five, six months, seven months", and that she did not sleep for three or four months.

7. The reason advanced by Mrs Caruso as to why she did not want to undergo an injection was that she had suffered an adverse reaction to a contrast injection in 1980. She testified that she fell very ill, and that for a couple of years every time she breathed it felt like her spine was going to open.

8. Significantly, at the trial neither Dr Giordano, who was Mrs Caruso's general practitioner from January 1981, nor Dr Crawley, her general practitioner from July 1993, had a record of such a complaint ever having been made. Even more significantly, in judging Mr Beard's conduct, there is no suggestion that she made Mr Beard aware of this previous episode of an unfavourable reaction to a previous injection except, in so far as she alleged that she said, after the procedure, "I was very sick many years ago with one injection".

The defendant's account 9. Mr Beard said that on the first occasion he saw Mrs Caruso: "I talked to her, took her to the examination room, examined her legs, and then we went back to my room, and I discussed the various options of treatment". He said that the options were; do nothing, wear a stocking, use injection treatment, or an operation. With regards to injection treatment, Mr Beard said that he told Mrs Caruso that, "because the veins were complicated, that they really were not suitable, or at least, what I indicated to her that an operation would be preferable. Didn't mean that an injection was contra indicated, but the injection treatment would take a considerable time, and the result could not be guaranteed, but there was nothing about the veins that would prevent the use of such treatment."

10. Contrary to the evidence of the appellant, Mr Beard stated that "she (Mrs Caruso) was not keen on surgery and I am not one to push any patient into an operation." He further testified as follows:
    "At 94 kilograms certainly she was overweight and, before
    operating, I considered that it was advisable, and find it a good
    opportunity to say to a patient 'Now, look, I'm not going to
    operate on you unless you lose weight'. It is not that it is
    absolutely essential to lose weight, but I believe that anyone
    who is overweight is not medically fit, so that the weight, I
    considered it a time to give her the chance to consider the
    various forms of treatment and, during that month to lose some
    weight, but I told her not to weigh herself at all during that
    month."

11. In the Particulars of Defence, the respondent admitted the plaintiff's allegations that he put forward only two options in relation to her treatment - operate or injection treatment known as sclerotherapy. I will return to this later.

12. Mr Beard agreed that the second consultation was held in a room at the North East Community Hospital. He stated that he "used it (meaning that room) as an opportunity to see brief patients, most of them post operative, removal of sutures, injections et cetera, things that don't take very long because it is away from my major rooms."

13. Contrary to the appellant's evidence, Mr Beard said that he greeted her and then weighed her. She had not lost any weight. Mr Beard made a note of this on Mrs Caruso's patient card. His evidence at trial was that he then said, "'Well, you haven't lost weight.' She laughed and jocularly said 'No , I'm sorry but I went to a big party last night'". Mr Beard recorded on Mrs Caruso's card, "Party last night".

14. Mr Beard further said:
    "I said or would have said, 'All right, I will try a test dose,
    to see if the vein responds to injections.' I would not have gone
    ahead. If she declines operations then I am committed to do
    something else, so then what I always say to the patient is, 'All
    right, today I'll give you a test dose which will not cause much
    disturbance, then we will see the result of that test dose, as to
    whether the response is good enough to proceed with injection
    therapy as you are not keen on operation.'"

15. Mr Beard's evidence was that before giving the injection, he had to scrub his hands, go to the cupboard, take the box, which contained the ampoules, out from the cupboard, snap the top off the ampoule, get a syringe from another box and remove it from a sterile packet, get a needle from another sterile package, attach the needle to the syringe, and draw the sclerosant up into the syringe.

16. No doubt these actions could not have passed without the appellant noticing and clearly enough, the time which must have been taken would have been sufficient to allow the appellant to appreciate, even without Mr Beard saying so, that he intended to inject "a fluid" into her body. In those circumstances there would have been more than sufficient time for the appellant to object, and indeed to tell him of the previous adverse reaction to an injection.

17. Specifically Mr Beard was asked whether afterwards she had made it clear to him that she was displeased. He was asked:-
    "Q Did she say anything to you after the injection which
    indicated displeasure, that she was cross with you, did she call
    you "a bloody crook doctor", for example?

A No. No. Had she indicated displeasure and certainly had she
    used those words I would have recorded it and I would have
    informed her doctor. She came in on the best of terms, I do not
    recall anything during the injection to indicate displeasure and,
    as she left the room, I do not recall - I certainly would and I
    would record it because if I do anything to a patient that causes
    displeasure then it displeases me, I am very conscious of that."

18. Again in that respect his evidence was at variance with the evidence of the appellant.

The claims 19. The appellant claimed that the injection by the respondent constituted, in the circumstances of this case, an assault and battery by the respondent.

20. The claim in assault and battery required the appellant to establish that the respondent carried out the procedure on 6 July 1992 without her consent. In the circumstances of this case the assault and battery could, if proved, be treated as the one tort.

21. Alternatively the appellant claimed that the procedure of 6 July 1992 was carried out negligently and unskilfully and in breach of either an express or implied agreement to exercise reasonable care, skill and diligence. The claim in negligence and contract can be discussed together because the alleged duty of care and breach of that duty of care arise out of the contractual relationship and co- exist with the alleged breaches of contract.

22. In paragraph 16 of the Particulars of Claim, the appellant made the following assertions:
    "16. In breach of the said agreement or alternatively, in breach
    of warranty and as a result of his negligence the defendant
    failed to exercise care, skill, diligence and competence in
    attending to and treating the plaintiff and in providing advice
    to the plaintiff in that he :
    - performed sclerotherapy contrary to the plaintiff's
    instructions and without her consent;
     1 Alternatively, performed the sclerotherapy without making any
     and/or sufficient inquiry of the plaintiff:- as to whether she
     understood the nature of the treatment; and/or
     1 whether she consented to the carrying out of that particular
     procedure;
     (c) carried out the procedure despite previously advising the
    plaintiff that the procedure was not appropriate for her
    condition;
    - failed to warn the plaintiff that there were certain risks
    associated with the procedure;
    - failed to take into account or adequate account the plaintiff's
    fears, as shown by the question she asked the defendant;
    - failed to answer or adequately answer the plaintiff's questions
    prior to carrying out the said procedure;
    - gave the said advice and performed the said procedure below the
    standard that might reasonably be expected of a competent medical
    practitioner."

23. There is no doubt that a medical practitioner owes his or her patient a duty of care. That duty includes an obligation to exercise reasonable care and skill in the giving of professional advice and the rendering of treatment. King C J defined the scope of the doctor's duty of care in F v R (1983) 33 SASR 189 at 191.
     "What is in question is the scope of the doctor's duty of care.
    He is required to act reasonably, not only in his actual
    treatment of the patient, but also in relation to the disclosure
    of information. In Chatterton v Gerson Bristow J held that it is
    'the duty of a doctor to explain what he intends to do, and its
    implications, in the way a careful and responsible doctor in
    similar circumstances would have done.' It is my opinion that
    that is a correct statement of the law, that the duty extends,
    not only to the disclosure of real risks of misfortune inherent
    in the treatment (p.266), but also any real risk that the
    treatment, especially if it involves major surgery, may prove
    ineffective.

What a careful and responsible doctor would disclose depends
    upon the circumstances. The relevant circumstances include the
    nature of the matter to be disclosed, the nature of the
    treatment, the desire of the patient for information, the
    temperament and health of the patient, and the general
    surrounding circumstances."

24. That analysis was specifically approved by the High Court in Rogers v Whitaker (1992) 109 ALR 625 at 632. At 633, their Honours said:
     "The law should recognise that a doctor has a duty to warn a
    patient of a material risk inherent in the proposed treatment; a
    risk is material if, in the circumstances of the particular case,
    a reasonable person in the patient's position, if warned of the
    risk, would be likely to attach significance to it."

25. Gaudron J said at 636:
    "That relationship also gives rise to a duty to provide
    information and advice. That duty takes its precise content, in
    terms of the nature and detail of the information to be provided,
    from the needs, concerns and circumstances of the patient. A
    patient may have special needs or concerns which, if known to the
    doctor, will indicate that special or additional information is
    required. In a case of that kind, the information to be provided
    will depend on the individual patient concerned. In other cases,
    where, for example, no specific inquiry is made, the duty is to
    provide the information that would reasonably be required by a
    person in the position of the patient."

26. Clearly therefore Mr Beard was under a duty to warn the appellant of any material risk inherent in the treatment which he proposed to administer. Moreover if he was aware, or ought to have been aware, of any particular concern or circumstance that might have acted upon the appellant's mind in deciding whether to undertake the treatment, he ought to have advised accordingly. The standard of care which Mr Beard had to observe was that of an ordinarily careful and competent general surgeon. The determination of that standard is not for the medical profession, but for the court, because it is for the court to determine whether any particular practice adopted by the profession conforms to the standard of reasonable care required by law (King CJ at 194 in F v R). Therefore in this case whilst regard must be had to any particular practice as to disclosure of information to a patient it is still for the court to determine whether that practice is appropriate and does not fall short of the law's requirement of a standard of reasonable care.

The arguments for the Appellant 27. The appellant claims that the procedure was carried out without her consent and she claims that her silence does not amount to consent. She states that she did not move or attempt to stop Mr Beard because she was in shock. "I was very still. I was in shock. When I saw him with the injection I was in shock".

28. Her case was that initially Mr Beard had told her that her veins were not suitable for injection treatment and this explains her shock at being given the injection. In a letter from the respondent to Dr Giordano dated 4 June 1992, the respondent wrote, "The varicose tributaries are extremely complicated. They are not suitable for sclerosant therapy." The contents of the letter are consistent with the appellant's account of what she was told. Moreover, Mr Beard's own evidence was that he told Mrs Caruso that "because her veins were so complicated, that they were really not suitable (for sclerotherapy treatment)Éan operation would be preferable." Having regard to what he had told the appellant, Mr Beard was under a duty at the second visit to explain to Mrs Caruso, if he now proposed to inject her, why it was that he had changed his mind. Of course, it was Mr Beard's case that he did and his evidence was that he explained to her that he would give her a "test dose" to see whether the response was good enough to proceed with injection therapy. I have already referred to that evidence which the learned Magistrate accepted.

29. That finding was challenged by Counsel for the appellant, who argued that Mr Beard's evidence could not be relied upon because a good deal of Mr Beard's evidence appeared to be a reconstruction of the events. Mr Beard's evidence is frequently prefaced by such phrases as "I would have said" and "my normal practice is". However, Mr Beard does have some specific recollection of the second consultation with Mrs Caruso in that he recalls them having a joke about her not having lost weight because she went to a party the night before. This is supported by the note on the patient card which says "party last night".

30. The appellant also submitted, in support of the proposition that Mr Beard's evidence was reconstruction, that Mr Beard gave differing accounts of what he said to Mrs Caruso. In paragraph 4 (a), (b) and (d) of the Particulars of Defence, the respondent admitted that at the first consultation he advised the appellant that there were two options - operative treatment or sclerotherapy (injection treatment). However, at trial Mr Beard said that he put forward four options to the appellant. They were: do nothing, wear a stocking, use injection treatment, or an operation. However as Mr Jackson, counsel for the respondent, submitted at the appeal, the two major options remained the same. Whether or not the respondent actually put forward the two other options is not significant for any issue in this case other than credibility. On the issue of credibility, it is merely one factor to be taken into account, but it is not a matter of much weight.

31. In further support of the appellant's claim that Mr Beard did not really remember the second consultation it was argued that the parties gave differing accounts of the position the appellant was in when Mr Beard administered the injection. In paragraph 8(e)-(f) of the Particulars of Defence, the respondent stated that he gave Mrs Caruso the injection while she was standing on a stool. The appellant in her evidence and in her Particulars of Claim in paragraphs 8-11 stated that she was seated on the bed. At the trial Mr Beard testified that "99 times out of a hundred" he has the patient standing but that if the vein is in the front of the shin and it is easy to see, then he may permit the patient to sit.

32. The appellant argued that this showed some sort of esoteric knowledge in the sense Mrs Caruso could not otherwise know that there is an alternative position and it was put she must therefore be telling the truth. I do not think that necessarily follows.

33. Counsel for the appellant drew attention to the letter from the respondent to Dr Giordano dated 1 October1992 in which the defendant states "I think that Mrs Caruso wondered why I had changed my mind". Further, in a letter to the plaintiff dated 15 October 1992, the defendant wrote, "I can only take it that I did not ensure that you understood my explanation." In a letter to the medical board dated 23 December 1992, the defendant wrote, "There are times when we think the patient understands fully, but this is not the case due to some tension and anxiety and emotion associated with the consultation." The appellant argues that the obvious inference to draw from this evidence from Mr Beard himself is that he failed to discharge his duty, as enunciated in Rogers v Whitaker, to attend to the needs and concerns of his patient.

34. An argument advanced by the appellant, which is said to support the claim that the second consultation was conducted hastily, and without proper explanation or indeed without the plaintiff's consent, is the brevity of the notes made by the respondent. However the salient facts such as the patient's weight and the dose administered are recorded. On the respondent's version of the facts, it is difficult to think what else needed to be recorded. It was also said in support for the proposition of "hastiness" that Mr Beard is a busy practitioner and has performed this type of injection many times. His diary shows that on the first consultation, Mrs Caruso was allotted a 15 minute appointment and a 5 minute appointment on the second occasion. If Mr Beard had done all that he said that he had done, the second consultation would have taken, it was argued, quite a bit longer than 5 minutes. It does not follow that because the appointment time allotted was 5 minutes that her appointment only took five minutes. The appointment may well have lasted a little longer. But in any event Mr Beard could arguably have done the bare minimum to discharge his duty to his patient in around five minutes or a little more.

35. The appellant contends that all the above points are consistent with her claim that the second consultation was very quick and that Mr Beard injected her without any explanation, and that Mrs Caruso was so shocked that she did not physically resist.

The arguments for the Respondent 36. No evidence was called at trial to substantiate the appellant's claim that she ever complained to any medical practitioner prior to 4 June 1992 that she had a fear of the contents of injections. In fairness to the appellant, the Learned Magistrate may have misinterpreted her evidence to mean that she had a fear of all injections. In fact, her evidence at trial was that she was afraid of the contents of injections and not the needle per se. She testified that after the injection in 1980 which made her sick, she "still had a blood test and all that, but I was a bit terrified to let anybody inject any dye in my body because I was terrified." It is, however, relevant that no evidence was lead to show that she complained of the complications from the injection in 1980 to any medical practitioner. This is despite the fact that, as she testified, every time she breathed it felt like her spine was going to open. Thus, to an extent, her fear of the particular type of injection, which is the basis of her claim that she did not consent to the sclerotherapy, is uncorroborated.

37. Counsel for the respondent submitted at the trial that "it is utterly unlikely that even if Mr Beard did come into the room she should sit there dumbly while he tried to find the vein in her leg to put the injection into". It was common ground between the parties that the injection was put into a very small vein and it required the utmost passivity on the part of the patient. Hence if Mrs Caruso had offered physical resistance of any nature whatsoever, then Mr Beard could not have performed the injection. On the appellant's case this is not fatal in itself because she claimed to be so shocked that she just sat still. However, the appellant has given conflicting accounts of what she said before the injection was administered. In a letter to the medical board, which was written by her niece but read back to and approved by Mrs Caruso before it was sent, she stated as follows: "When I saw the form of treatment I pratically (sic) begged him not to use it because of my knowledge that I am allergic to drugs."

38. Of course that allegation is significantly different from her evidence at the trial. Her case at trial was that she said and did nothing before the injection, but complained vociferously after the injection. The issue is an important one and, of course, required the Learned Magistrate to make an assessment of the appellant's credibility on this and the related issues. This inconsistency may suggest that the appellant is either unsure in her own mind as to what happened or she is fabricating. Moreover, if the version the appellant told the medical board is the correct one, it would have been virtually impossible for Mr Beard to administer the injection given how still the patient had to sit. A patient who is "practically begging" would, one would think, not be sitting still enough to enable the doctor to perform the injection.

39. Mr Beard made no note on the patient card that Mrs Caruso had called him a "bloody crook doctor." I consider it highly unlikely that a practitioner as experienced as Mr Beard would fail to record such a comment if it was said and fail to report it to the patient's general practitioner.

40. It is very significant that Mrs Caruso waited so long after the second consultation with Mr Beard to make any allegations concerning the assault. The evidence discloses that the first time Mrs Caruso saw a doctor after the injection was on 30 July when she complained of leg and back pain to her general practitioner, Dr Giordano. She again saw Dr Giordano on 7 August 1992. It is, at least surprising, and probably bordering on unbelievable that the appellant, after having suffered an assault and battery at the hands of the general surgeon such that she called him a "bloody crook doctor", and thereafter became "really sick for three, four or five months", did not complain of the doctor or of the treatment or of the illness caused by the treatment to her general practitioner, who had been treating her for many years. It was not until 29 August that she complained to Dr Giordano that she was suffering symptoms after the operation. Even then, Dr Giordano has no independent recollection and no note of any suggestion made on 29 August 1992, that the injection was given without her consent. So on the first three occasions when she saw her general practitioner whom she had consulted for eleven years, she failed to claim that the injection was given without her consent. It was not until the appellant consulted solicitors about the matter on 22 September 1992 that she complained that she had not consented to the injection. She also told Mr Hoare in October, another surgeon to whom she was referred for a second opinion, that she had not consented. The appellant's only explanation for the delay in complaining is found in the letter she sent to the medical board. It states, "I waited this long to lodge a complaint because I belived (sic) that I would get better, but, I just get worse than before I first saw him." I find it difficult to understand that the appellant would not, at the first available opportunity, complain about the medical treatment given her having regard to the fact that on her account, she complained so vociferously to Mr Beard himself. I believe the absence of a timely complaint to be a significant matter in the determination of the truthfulness of the competing versions of events.

41. Another significant matter is to be found in the medical reports from doctors who subsequently examined the appellant. All the doctors who examined Mrs Caruso after the injection felt it was unlikely that Mrs Caruso suffered any physical damage as a result of the injection by Mr Beard. Mr Hoare, who examined Mrs Caruso in October, wrote, "I find it hard to determine any particular pathology which might account for the localised discomfort in her leg." Mr Williams stated, "Overall I feel it is unlikely Mrs Caruso suffered any physical complications following the injection performed by Mr Beard." Dr. Crawley, who subsequently became Mrs Caruso's general practitioner from July 1993, said that although in her opinion Mrs Caruso's back pain had nothing to do with the injection, Mrs Caruso was convinced that it did.

42. Dr Davis, who is a psychiatrist, examined Mrs Caruso on referral from her legal advisers in July 1993. He wrote in his report: "In psychiatric terms, I did not detect any sign of mental disorder. In particular, I did not detect a major depressive disorder, an anxiety disorder or a psychotic disturbance. She described considerable distress following the consultation with Mr Beard and persistent anger, frustration and tearfulness for several months following this consultation. These emotional responses can be conceptualised as a reaction to her perceived mismanagement and lack of consent for a procedure. The physical symptoms were not explained by local pathology and can be assumed to have a psychogenic basisÉI consider the persistent physical symptoms and emotional state are a consequence of fear, ignorance and perceived mismanagement by Mr Beard in July 1992. There has been a gradual resolution of symptoms as her anger has abatedÉI do not consider that her emotional reaction is permanent. She has experienced gradual and sustained improvement in mental state since late 1992, and I anticipate this will continue without setback. Mrs Caruso is unlikely to require any medical treatment in the futureÉI consider that Mrs Caruso's symptoms are likely to resolve, and I think it is important that the medico- legal focus be eliminated as soon as possible, as this process can lead to a perpetuation of abnormal illness behaviour and further secondary gains."

43. The resolution of the factual dispute could only be arrived at after preferring the evidence of one of the parties. Their accounts of the evidence were not reconcilable. In the end the learned Magistrate preferred Mr Beard's evidence to that of the appellant.

44. The learned Magistrate said in his judgment, "I generally formed a most unfavourable view of the plaintiff as a witness of credit." Later in the judgment he said:
    "I acceptÉMr Beard's direct evidence of the events he can recall
    and to the extent that Mr Beard has reconstructed, I accept that
    his reconstruction is accurate. The plaintiff's view of the
    events is either a figment of her imagination or an absolute
    fabrication."

45. In Devries v ANRC (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ held at 479:
    "A finding of fact by a trial judge, based on the credibility of
    a witness, is not to be set aside because an appellate court
    thinks that the probabilities of the case are against - even
    strongly against - that finding of fact. If the trial judge's
    finding depends to any substantial degree on the credibility of
    the witness, the finding must stand unless it can be shown that
    the trial judge 'has failed to use or has palpably misused his
    advantage' or has acted on evidence which was 'inconsistent with
    facts incontrovertibly established by the evidence' or which was
    'glaringly improbable'."

46. In this case, the findings do depend to a considerable degree on the credibility of the two parties. It cannot be said that the learned Magistrate misused his position, acted on evidence inconsistent with facts incontrovertibly established by the evidence, or facts which were glaringly improbable. Moreover there were good reasons, as the arguments show, for accepting Mr Beard's evidence in preference to that of the appellant. I not only cannot say the learned Magistrate was wrong, indeed in my opinion the preferring of Mr Beard's evidence to that of the appellant was almost inevitable. For these reasons the findings of the learned Magistrate must stand.

47. Thus, the appellant's case on assault and assault and battery has to fail because the appellant has not established that she did not consent to the injection.

48. The case on negligence and breach of contract is slightly more complicated. Whilst the appellant's case at trial was really run as an assault or nothing case, the negligence issues became more important at the appeal. More emphasis was put upon the argument that Mr Beard did not fulfil his duty (as outlined above) to his patient in terms of explaining to Mrs Caruso what he was intending to do before actually injecting her with the drug. Reliance was put upon the evidence to which I have previously referred - namely, the letter to Dr Giordano of 1 October 1992 in which Mr Beard said, "I think that Mrs Caruso wondered why I had changed my mind", the letter to the appellant dated 15 October 1992 in which the defendant wrote, "I can only take it that I did not ensure that you understood my explanation" and finally the letter to the medical board dated 23 December 1992 in which the defendant wrote, "There are times when we think the patient understands fully, but this is not the case due to some tension and anxiety and emotion associated with the consultation." It was argued that it was open to infer that had Mr Beard fulfilled his duty to his patient, he would not be "thinking" that Mrs Caruso wondered why he changed his mind and nor would he have written the other two comments.

49. In considering what he ought to have explained to the appellant, it is important to bear in mind that there was no way that Mr Beard could have known or reasonably apprehended that the appellant had either a fear of the drugs in injections or that she was prone to a psychogenic reaction. The appellant did not inform the respondent of this fear during their consultations and the referral letter from Dr Giordano did not inform Mr Beard of any such fear or allergy. According to a report prepared for the appellant by Mr Williams, the only sequelae which Mr Beard should have warned Mrs Caruso about was as follows:
    "Pain can sometimes follow injection sclerotherapy but usually
    only if some complication has occurred such as extravasation of
    the sclerotherapy fluid in the tissues. Even then one would
    expect it to be symptomatic for only a few days or weekÉ The
    other possible complication is passage of the sclerotherapy fluid
    into the deep veins of the leg causing deep venous thrombosis."

50. Whilst, of course, it is for the Court to determine what would have been appropriate for the discharge of the duty of disclosure, it seems to me that Mr Williams' evidence could be accepted as indicative of the appropriate standard. Therefore, in the absence of special knowledge about any fear of drugs or a propensity to psychogenic reaction the respondent would have discharged his duty by providing the information to which Mr Williams referred. The Learned Magistrate was satisfied that Mr Beard did tell the appellant that he intended to administer a test dose. He accepted that evidence in preference to the appellant's, and also accepted that evidence notwithstanding what Mr Beard otherwise wrote. Absent some knowledge of a predisposition to an allergic reaction, Mr Beard discharged his duty of disclosure and provision of information. He conformed to the standard of reasonable care and competence of a general surgeon.

51. In any event the appellant faces another difficulty. It was necessary, if she was to succeed on her breach of duty claim that she establish to the satisfaction of the learned Magistrate that she would not have, if properly advised, undergone the treatment. The question was not put to the appellant and the circumstantial evidence does not allow an inference to be drawn to establish that matter. The closest the appellant came to proving this matter was in the evidence of Mrs Caruso of the first consultation with Mr Beard:
    "I was sitting in Dr Beard's room and we discussed a little bit
    about my leg and then he examined my leg and after we went back
    to his room and sit again and he explained some time there is
    injection they can give for the vein but because my vein is too
    big, is no suitable and I said to him 'I prefer to have the
    operation but not injection'."

52. The learned Magistrate found that "I am also quite satisfied that contrary to the evidence she now givesÉat no stage did Mrs Caruso express any preference for surgery and indeed made it quite clear to Mr Beard on the occasion of the second appointment that she did not want to have an operation." The learned Magistrate simply did not believe the appellant upon this matter. I have already commented upon the learned Magistrate's rejection of the appellant's evidence and his preference for the evidence of Mr Beard. This finding, with which I respectfully agree, makes it impossible for her to establish that had the ordinary sequelae been explained to her by Mr Beard, she would not have consented to the injection. In any event, it must be remembered that it was a contrast injection which concerned the appellant, not an injection of the kind administered by Mr Beard. In these circumstances, having regard to the adverse finding made by the learned Magistrate, it is not possible to infer that had Mrs Caruso been aware of any of the sequelae she would not have consented to the injection. I would dismiss this appeal.

Further evidence 53. One issue remains to be discussed. The first issue raised at this appeal was the attempt by the appellant to introduce new evidence in the form of an affidavit, with an attached exhibit, sworn by Mrs Caruso on 2 July 1996. The exhibit was a handwritten note by Dr Giordano which was given to another doctor whom Mrs Caruso consulted regarding a hysterectomy. The note read in part, "This is to confirm that the above patient (Mrs Caruso) may have a hypersensitivity to radio-opaque dyeÉ". At the hearing of the appeal, I refused to accept the affidavit, stating that I would publish my reasons for so doing. I now state those reasons.

54. As this is an appeal pursuant to section 40 of the Magistrate's Court Act 1991, it is governed by Rule 96B.04. Subsection (b) of that rule states that in the case of a single judge, as here, the appeal is further governed by Rule 97. Under Rule 97.17, the appeal is to be by way of rehearing. Rule 97.18 states, in part, as follows:
    "On the hearing of an appeal governed by Rule 97 the Court: is
    to have all the powers and duties as to amendment and otherwise
    as the Court or tribunal appealed from had; 1 May in its
    discretion receive further evidence upon any question of fact;
    may draw inferences of fact; may amend, set aside or discharge
    any judgment appealed from ..."

55. Therefore, under Rule 97.18 (c), I have power to receive the further affidavit. If any further authority for this proposition is needed, King CJ said at p3 in Summersides v Rasch (Judgment No S4209 delivered in 1993), "The appeal is by way of rehearing. This court is entitled to receive further evidence, and has done so."

56. However, the circumstances in which Mr Reinboth attempted to introduce the new evidence are most unusual. In effect, the fresh evidence was to be used for the purpose of impeaching his own witness at the trial. Mr Reinboth was unable to find any authority for the proposition that on appeal from the Magistrates Court it would be appropriate to allow fresh evidence to be called for the purpose of impeaching the witness called and relied upon at trial.

57. No satisfactory explanation was given for the failure to discover the evidence before trial, particularly so having regard to the fact that the author of the letter was called by the party now seeking to have the letter admitted.

58. Further, I do not believe that the new evidence is vital for the just determination of the case. Although it provides some evidential basis for the appellant's fear of the contents of injections, it still does not explain the absence of complaint by the appellant about that fear over the years and in particular during the immediate aftermath of the second consultation. Nor is it relevant on the claim in breach of duty because it does not prove that, had the relevant sequelae been explained to Mrs Caruso, she would not have consented to the injection. In any event, on that matter, the learned Magistrate simply disbelieved the appellant, which is a finding which I am not prepared to upset. For these reasons, I refused to allow the new evidence.

Order 59. Appeal dismissed. Appellant to pay respondent's costs of this appeal.