Tyrrell v Gibbs

[1999] NSWCA 365

CITATION:	Tyrrell v Gibbs & Anor [1999] NSWCA 365
FILE NUMBER(S):	CA 40679/97
HEARING DATE(S):	17 September 1999
JUDGMENT DATE:	8 October 1999
PARTIES :	John Stewart Tyrrell v Nathan Gibbs South Sydney District Rugby League Football Club Ltd
JUDGMENT OF:	Mason P at 1; Handley JA at 52; Sheller JA at 53

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 1127/94
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	A: K Ryan 1R: R Sheldon 2R: A Bell
SOLICITORS:	A: Bush Bourke & Company, Sydney 1R: Blake Dawson Waldron, Sydney 2R: Colin W Love & Co, Sydney
CATCHWORDS:	NEGLIGENCE - Medical practitioner - Issue as to symptoms disclosed - Credibility finding favouring doctor challenged - Documentary evidence ambiguous
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40679/97
DC 1127/94

MASON P
HANDLEY JA
SHELLER JA

Friday, 8 October 1999

John Stewart TYRRELL v Nathan GIBBS & Anor

JUDGMENT

1    MASON P: The appellant’s negligence claim against the respondents was dismissed in the District Court. 2    In 1991 the appellant was a professional rugby league player employed by the second respondent (the Club). He played in the reserves. The first respondent (Dr Gibbs) is a medical practitioner who acted as the honorary club doctor at that time. Club players used to consult him on the field or at his Maroubra surgery. Dr Gibbs looked to Medicare when and if it was appropriate to seek remuneration for medical services. 3    The appellant pleaded that he injured his right elbow on about 6 April 1991 when playing against Newcastle at the Sydney Football Stadium. Paragraph 6 of the statement of claim then asserted that from the date of the injury on an ongoing basis for approximately twelve months Dr Gibbs treated the injury inappropriately. 4    The appellant’s primary case against the Club was that it was vicariously liable for the negligence of Dr Gibbs who was said to be its employee and agent. The trial judge (Sinclair DCJ) held that Dr Gibbs was not an employee and the appeal against this finding was not pressed. 5    In this Court the appellant sought to sheet home liability to the Club on an alternative basis, deriving from the appellant’s situation as an employee of the Club but not dependent upon establishing that Dr Gibbs was an employee. The appellant relies upon the clear proposition that an employer has a non-delegable duty of care to its employee with respect to provision of a safe system of work (Kondis v State Transport Authority (1984) 154 CLR 672 at 687-8; Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313 at 344-5, 361, 395). The appellant submits and the respondent disputes that this proposition extends in the present case to a non-delegable duty to ensure the absence of negligence with respect to medical treatment by the Club doctor. It will be necessary to grapple with this legal question if the appellant succeeds in his appeal against the verdict in favour of Dr Gibbs. 6 The appellant sought in this Court to press an alternative case against the Club, alleging omissions by Mr Curry, the first grade coach, and Mr Chidiac, the strength coach. This alternative claim lies outside the particulars in the pleadings and it was not the way in which the appellant ran his case at trial. Such a basis of liability cannot be advanced on appeal. 7 Paragraph 7 of the statement of claim sets out the way in which the appellant pleaded his claim in negligence against the two respondents:

The defendants owed a duty to the plaintiff to take reasonable care to avoid exposing him to risk of further injury in the examination, diagnosis and treatment in respect of any injuries sustained by the plaintiff in the course of his employment and the plaintiff was further injured through the negligence of the defendants.
PARTICULARS OF NEGLIGENCE
(a) Failure to properly diagnose the plaintiff’s injury.
(b) Failure to obtain any or adequate radiological assessment of the injury.
(c) Advising and treating the plaintiff by way of active treatment at a time when appropriate treatment should have been directed to obtaining union of the said fracture.
(d) Failure to refer the plaintiff for appropriate specialist treatment.
(e) Failure to properly heed or observe the plaintiff’s complaints and symptomatology.

8    A hard fought trial involved, in the main, a conflict of evidence between two principal witnesses, the appellant and Dr Gibbs. 9    His Honour concluded, with reluctance, that he was unable to prefer the evidence of the appellant to that of Dr Gibbs. He referred to the advantage of having seen both witnesses giving evidence and being cross-examined. He also referred to the benefit of contemporaneous records and the probabilities. The particular matters encompassed in the general remarks were recounted earlier and later in the judgment. 10    The appellant’s case depended essentially upon acceptance of his evidence about the symptoms he had reported to Dr Gibbs. He sought to establish that the diagnosis and treatment based upon those symptoms fell short of a reasonable standard of care. The appellant relied mainly on the expert evidence of Dr Hughes, an orthopaedic surgeon specialising in elbow surgery who treated the appellant from January 1994 onwards. 11    Each side relied, to a degree, upon certain records for corroboration. 12    Dr Gibbs was one of five persons whose names appear on the letterhead of the South Sydney Orthopaedic & Sports Medicine Centre and who conducted that centre from an address in Bunnerong Road, Maroubra. According to the letterhead, Dr Gibbs and Dr Grace Bryant attended to the sports medicine side of the practice. A key exhibit (exhibit 6) was a set of hand written medical records recording attendances at the practice in 1991 and 1992. Exhibit 6 was not an exhaustive record of medical treatment by members of that practice, if only because there were records of Medicare claims for additional treatment supplied by Dr Gibbs at or near the playing field on the day of a club match. Some of exhibit 6 related to treatment for football injuries that had nothing to do with the appellant’s elbow. 13    Dr Gibbs had little direct recollection of his treatment of the appellant. This is understandable given the nature and size of the medical practice and the fact that it was only in 1994 that the appellant first signalled his intention to sue. By and large, Dr Gibbs relied upon the records both for what they contained and did not contain as to the symptoms complained about. 14    Faced with adverse credibility findings, the appellant seeks to draw corroboration from exhibit 6 in relation to his central allegations. However, exhibit 6 paints nothing like the picture of constant complaint constantly ignored that emerges from the appellant’s evidence in chief. And some of the records are inherently ambiguous as to treatment administered or its location, or refer to complaints and treatment not affecting the elbow. Thus: ¨ the record of the initial consultation by Dr Bryant on 9 April 1991 is in the following terms:

(R) elbow - swelling limited E/F >
medially focal olecranon
triceps power pain non tender
? Traumatic bursitis ice/stretches
NSAI/physio

¨ the record of consultation with Dr Gibbs on 13 May 1991 is in the following terms:

13.5.91 League 1/7
R elbow swollen ++ after game
voltaren S/A 2/7
x ray

¨ there are Medicare claims by Dr Gibbs for 16 and 22 June 1991 (weekend dates) in which claims were made with respect to consultations and “Joint or Other Synovial Cavity, Aspiration and/or Injection”; [Nothing in this item confines it to the elbow and the item encompasses injections as well as aspirations.] ¨ the entry for 24 June 1991 in exhibit 6 relates to the broken finger and includes reference to the fact that the appellant was sent away to have it x-rayed. There is no mention of the elbow; ¨ the record for 28 June 1991 deals exclusively with the finger; ¨ the records of treatment by Dr Gibbs on 24 April, 4 September, 9 September and 20 November 1991 record complaints and treatment that have nothing to do with the elbow; ¨ the final record is dated 19 February 1992 in which Dr Gibbs refers to the swelling of the right elbow in the following terms:

R elbow swelling after game last w/k .
2/7 ago. ? cause
hot
attempted aspiration unsuccessful
Naprosyn/Flopen

15    The second piece of documentary evidence consists of the Health Insurance Commission’s records for Medicare benefits claimed on behalf of the appellant between 1 February 1991 and 3 July 1997. There are many attendances upon many practitioners. Only few of these records are relevant or debatably relevant to the issues in this appeal. This document obviously corroborates the appellant in relation to dates upon which he received medical treatment from Dr Gibbs. (The appellant frankly conceded that he had used this information in preparation to give evidence in chief.) There is a dispute between the parties as to whether the Medicare records corroborate the appellant on the critical issue of the information provided to Dr Gibbs upon which Dr Gibbs based his treatment in 1991. 16    For the present, it is sufficient to record that the Medicare records disclose:

(a) nineteen items of services provided by Dr Gibbs between 2 February 1991 and 19 February 1992. Most items refer to either a long or standard consultation. These include items for 16 and 22 June 1991 (weekend days on which club matches were played) for which the compendious description of the item is “ Joint or Other Synovial Cavity, Aspiration and/or Injection ”;

(b) two items for services provided by Dr Bryant on 5 April 1991 (a long consultation and a “ Joint or Other Synovial Cavity, Aspiration and/or Injection ”) [this was the day before the critical injury];

(c) three items for diagnostic services, apparently involving x-rays, provided by Dr Hunter on 24 June 1991 and 9 September 1991 (two items). The item for 24 June 1991 (item No 2512) is briefly described in the Medicare record as “ Hand, Wrist, Forearm, Elbow or Arm ”; and

(d) three items of diagnostic services provided by Dr Tanchum on 28 June 1991, one item (No 2520) being briefly described as “ Hand, Wrist-Lower Forearm, Upper Forearm/Elbow, [word omitted] ”.

17    The appellant’s evidence in chief was that he had commenced playing professional rugby league in 1988. He joined the Club in 1991 and played trials. He cracked his sternum in mid February 1991. On 7 April 1991 he injured his right arm and elbow in a tackle during a match against Newcastle at the Sydney Football Stadium. Dr Gibbs was present at the match. He suggested that the appellant might have strained a ligament and he recommended “RICE” (rest, ice, compression and elevation). 18    The appellant said he consulted Dr Gibbs in his surgery either the following day or the next day. Dr Gibbs told him that he had injured some ligaments in his elbow but that if it were strapped properly it should not cause him to miss any more games. Anti-inflamatories were prescribed and the appellant was told to “ease off the weights and just rest [the] elbow” (WB 9). The appellant played the following weekend and had his elbow strapped by Dr Gibbs before he played. Following the game he complained to Dr Gibbs that his elbow was sore. Pretty much the same happened the following weekend (21 April) and Dr Gibbs prescribed Voltaren for the swelling in the elbow. There was a visit to the surgery on 24 April 1991 when the elbow was again discussed and when Dr Gibbs took a sample of blood in the context of “another problem” being some blood in the urine (WB 13M). The appellant played a portion of a game on 28 April, again having Dr Gibbs strap his elbow before the game. Once again, he came off the ground with a sore elbow which he reported to Dr Gibbs. 19    On 1 May 1991 the appellant saw Dr Gibbs at his surgery. According to the appellant, there was discussion about the sore elbow, but Dr Gibbs assured him that all that had happened was that he “had just done a ligament” and that further damage was not a concern (WB 14). The appellant played another game on 12 May 1991 (with Maroubra Juniors). 20    The appellant said that he returned to Dr Gibbs at his surgery on 13 May 1991 and was asked to get an x-ray. He went to the Kingsford Medical Centre on Anzac Parade and returned with the x-ray to the surgery. Dr Gibbs looked at the x-ray. He said that it was not very clear and suggested that the appellant may have moved. The appellant asked Dr Gibbs whether he would like him to get another x-ray. Dr Gibbs said no and reassured the appellant that it was just a muscle or ligament that had been strained (WB 15V). 21    The appellant referred to an occasion in the first half of May when he went to Dr Gibbs’ surgery to have a test done on his elbow. Dr Gibbs was not there but his colleague, Dr Bryant, attempted an aspiration of the elbow joint, seeking to draw some fluid out (WB 16). 22    The appellant gave emphatic evidence to the effect that Dr Gibbs strapped his elbow before practically every match that he played in the first half of the 1991 season. He was also very firm, in chief, that there were complaints of soreness following each match. 23    On 22 June 1991 the appellant broke his finger. He received treatment from Dr Gibbs and from a specialist (Dr Perko). (X-rays conducted in late 1991 certainly included x-rays for the broken finger.) The fractured finger ended the appellant’s season. Indeed, the game on 22 June 1991 was the last match the appellant played for the Club, although, as will be seen, he remained connected with the Club until the following year when he was unsuccessful in having his contract renewed for the 1992 season. 24    The thrust of the appellant’s case was therefore that the injured elbow was an obvious, continuing, worsening, problem between early April 1991 and late June 1991, and that Dr Gibbs was well aware of it. According to the appellant, the matter was discussed practically every week, Dr Gibbs personally strapped the elbow on several occasions before matches, Voltaren was prescribed for the pain, the elbow problem was discussed in the doctor’s surgery, and an x-ray was obtained. The x-ray was recognised by Dr Gibbs to be deficient but nothing further was done about the matter at that stage. 25    Having broken his finger in June 1991, the appellant ceased playing for the Club and returned home to Moree. He played some football there but generally rested his elbow. He avoided weight lifting. 26    In September 1991 the appellant returned to Sydney and the Club. He commenced a weight program under Mr Chidiac’s supervision. It was his evidence that he spoke to Dr Gibbs during a consultation when the doctor was looking at his finger. According to the appellant, he asked the doctor whether he could do weights again and was told that he could. He started weights but found that his elbow was gradually getting worse. He returned to Dr Gibbs on about 11 November 1991 and asked whether doing the weights was aggravating the elbow. Dr Gibbs told him that he could not do any more damage to his elbow. He reassured him that it was just a ligament problem in his elbow and that if he wore an elbow guard he should be right (WB 23). 27    Heavy weight lifting continued until early 1992. In January 1992 the appellant reported to Dr Gibbs that his elbow was getting worse and he was advised to cut out the weights for a while and rest the elbow. He followed this advice. There were trial games for the Club in February 1992. However, the elbow remained extremely swollen and sore and the appellant returned to Dr Gibbs in his surgery. Dr Gibbs suggested the possibility of gout and he drew out fluid from the elbow for testing. 28    Dr Gibbs was firm that February 1992 was the first and only occasion on which he aspirated the appellant’s elbow. 29    The appellant never returned to Dr Gibbs after the attendance on 19 February 1992 (as recorded in exhibit 6: see par 14 above). 30    The problems with the appellant’s elbow got worse over the next couple of years. He consulted various specialists and ultimately was operated on by Dr Hughes in March 1994. It was clear by 1994 that he had done serious and permanent injury to his elbow. It was his case that this injury was caused, or at least exacerbated, by the inappropriate treatment received under Dr Gibbs’ guidance. He claimed in particular that Dr Gibbs’ failure to make a proper diagnosis led him to undergo the heavy weight lifting program in late 1991 and early 1992. 31    The appellant was cross-examined extensively by counsel for Dr Gibbs. He accepted that he took Voltaren on a number of occasions, including for the relief of the sternum injury (WB 38). He accepted that the Medicare records had been used in an attempt to reconstruct what had occurred (WB 39), although he denied that that was the basis upon which he had given his evidence that Dr Gibbs had conducted aspirations on the elbow in 1991. (It was to be Dr Gibbs’ evidence that the only occasion when this was done was in 1992 and that the occasions in 1991 when there were Medicare items for “Joint or Other Synovial Cavity, Aspiration and/or Injection” related to pain-killing injections, concerning the injured sternum.) The appellant was challenged as to Dr Gibbs having strapped him before games. He acknowledged that strapping was usually done by Club strappers. The appellant was confronted with inconsistencies in earlier evidence as to the date of the initial injury (in a statement dated 4 November 1996, he said that it occurred on 14 April 1991 when playing a different team than Newcastle). He was adamant that the initial treatment given on 9 April 1991 was given by Dr Gibbs and not Dr Bryant (as indicated above, the medical records are clear that it was Dr Bryant who saw him on 9 April 1991). The appellant was challenged on his evidence that he had made complaints at various stages to Dr Gibbs about his sore elbow. It was put to him, in effect, that the medical records were accurate as to the matters dealt with on particular visits. 32    As regards the appellant’s evidence concerning the discussion about x-rays on 13 May 1991 (par 14 above), the appellant acknowledged that he had never been able to produce those x-rays and that there was no record of them ever having been performed, according to Medicare or any medical practice. It was suggested to the appellant that he had not had those x-rays, nor had he returned to Dr Gibbs to discuss them (WB 56, 57). 33    As regards attendances on Dr Gibbs in September 1991 which are documented by Dr Gibbs but which (in the doctor’s records) do not refer to the elbow, the appellant conceded that he saw Dr Gibbs about his finger, blood in the urine and sore shins, and he accepted that he had not complained at that stage about the elbow (WB62, 63). This is consistent with other evidence suggesting that the appellant may have been anxious not to say too much about his elbow because he was keen to get back into the team (cf WB84). This concession stands in marked contrast to par 15 of the appellant’s statement of 4 November 1996 and it is also inconsistent with the evidence which he had given in chief (par 17 above). The appellant accepted that he could have told Dr Hughes that the injury had been sustained in May 1991 (WB 73). There were other matters put to the appellant in cross-examination that provided material upon which the trial judge could have properly formed his adverse view as to the appellant’s credit. 34    The appellant’s case also depended on the evidence of Dr Hughes. Dr Hughes was first consulted in January 1994. Although he treated the appellant and was well positioned to give evidence as to the permanence and seriousness of the injury, his principal role in the case was that of an expert who gave evidence on the basis of assumed facts and his reading of exhibit 6 (see BB 15-16). He expressed the view that, at the latest when Dr Gibbs ordered an x-ray according to his notes on 13 May 1991, that x-ray should have included an AP (anterior-posterior) and lateral view of the elbow. Relying on what was revealed in x-rays of August 1992 and a subsequent arthroscopy conducted by himself in June 1996, Dr Hughes considered that appropriate x-rays in late 1991 would have revealed a post traumatic osteoarthritis. On this basis, he expressed the opinion that this had been subsequently aggravated by continued playing and heavy weight training in 1991. He considered that Dr Gibbs should have excluded a joint problem before instituting a strengthening program involving the right upper limb. If the appellant had not been exposed to the further games and weight training, the condition of his elbow would have been significantly better. 35    The critical thrust of Dr Hughes’ evidence depended upon establishing the assumptions upon which his opinion of (negligent) misdiagnosis by Dr Gibbs was based. In cross-examination, Dr Hughes accepted that if the first time that Dr Gibbs saw the appellant for his elbow was 13 May, then it would have been appropriate to review the matter in the light of x-rays (WB 131). 36    Dr Gibbs gave evidence which was largely dependent upon his records and his usual practice. He had no record of ever seeing x-rays taken on or about 13 May 1991, but he was adamant that, had the x-ray been blurred, he would have required a repeat x-ray or a nuclear medicine bone scan (WB 206-7). Dr Gibbs was firm that he had never extracted blood on the day of a game (WB 209). His explanation for the Medicare items on 16 and 22 June 1991 was that he gave pain-killing injections around the joints of the sternum region (WB 207-8, 214). Dr Gibbs said that he did not strap players, and he had no recollection of having strapped the appellant. There were trainers who did this (WB 215). He denied having given the appellant a clearance to do weights in late 1991 (WB 216). 37    One of the difficulties with the appellant’s case against Dr Gibbs is that Dr Gibbs would have had no reason to suppress reference to a complaint about the elbow in his medical records. After all, he was the Club doctor and there was nothing to suggest that his interests were at variance with those of the appellant until shortly before the proceedings were commenced in the District Court in 1994. He bulk-billed Medicare for medical treatment. Dr Gibbs’ records were not claimed to be perfect or exhaustive. However, so far as they went, they did little to corroborate the appellant’s case in its critical points. 38    The appellant’s inability to produce any record of the “blurred” x-ray which he claims to have brought back to Dr Gibbs within a couple of days of 13 May 1991 was also telling. After all, it was the appellant who went and got the x-ray and he had access to the Medicare records for all claims made on his behalf. He did not pay for the x-ray. There is no explanation for the absence of a Medicare record about an elbow x-ray or a record in the diagnostic practices visited by the appellant. (Some items might have indicated such an x-ray, but the probabilities suggested that these were x-rays related to the broken finger: see below.) This suggests on the probabilities that no elbow x-ray was ever obtained and brought back to Dr Gibbs. 39    On 30 June 1993 Dr Gibbs wrote a letter to the appellant’s solicitors for intended use on the appellant’s behalf in making a claim under a sports injury scheme. Nothing suggests that at this time the doctor thought it might be possible that he could be sued. The letter was in the following terms:

I wish to state that John Tyrrell was first seen in early 1991 at the beginning of the football season by my partner, Dr Grace Bryant, regarding a right elbow injury sustained during a football game the previous weekend.
On examination at that time, the right elbow was swollen and had limited extension and flexion. Most of the pain was localised to the medial aspect. Triceps strength was decreased due to pain. Initial diagnosis of traumatic synovitis was made and a treatment programme, consisting of physiotherapy and anti-inflammatory drugs was commenced. It settled down, allowing him to resume playing football. I saw him when his right elbow pain and swelling recurred after a rugby league game on May 13, 1991. Once again, his right elbow was swollen and tender. Once again a diagnosis of traumatic synovitis was made and a similar treatment regime was commenced. An x-ray was also performed, which was normal at that time. The elbow settled down as before and he returned to playing rugby league for South Sydney. He was next seen regarding his right elbow the following season when it flared up again on February 19, 1992. Once again, this was after a game with the South Sydney Football Club. On this occasion, the elbow was also fairly hot as well as being swollen and there was some thought that there may be an infective component to the symptoms. Aspiration of the joint was attempted but was unsuccessful. He was commenced on anti-inflammatories as well as antibiotics. The elbow settled within a few days.
I have not seen John again regarding his elbow since 1992 so I am unable to comment on how the elbow is progressing at this point in time and what the exact diagnosis and/or prognosis is. The provisional diagnosis was a traumatic synovitis which simply implies the elbow ligaments and joint have been strained with resultant swelling without any major instability or fractures involved. This is quite a common injury in rugby league and quiet often settles down very quickly and rarely causes a player to miss game of rugby league simply because the elbow can be effectively strapped to help minimise the trauma to it in such cases where it is painful and swollen. As John had had problems on and off over two seasons with his right elbow but was still able to play football with it, it is understandable that he may have delayed making a claim regarding injuries sustained to his right elbow. It is only when he was having recurrent problems with it, as I believe is the case now, that he has felt that there is some permanent damage to it as a result of these repeated episodes of trauma sustained by playing rugby league for South Sydney.

40    If this letter is a true and complete record of Dr Gibbs’ observations of the elbow, it greatly favours the respondents’ case. 41    The appellant seeks to rely upon the reference to swelling having “recurred” as an admission by Dr Gibbs consistent with the appellant’s case. I cannot read the letter this way. Rather, it deals with a recurrence of a problem that manifested itself during the visit to Dr Bryant on 9 April 1991. Read that way (and that was Dr Gibbs’ explanation for it, as well), the letter supports the respondents’ case as to absence of complaint of serious or continuing pain. It certainly provides no corroboration for the appellant. 42    The reference to the x-ray in the letter is curious, but once again this does little to assist the appellant. On its face, the letter confirms that the x-ray was viewed by the doctor, but it speaks of the x-ray being “normal at that time”. This is consistent with the doctor’s evidence that if the x-ray had shown anything of concern, then he would have done something about it. Dr Gibbs acknowledged that this part of the letter may have been a reconstruction based solely upon the entry of 13 May 1991 which records the appellant being sent away for an elbow x-ray, Dr Gibbs’ usual practice and the fact that the appellant continued playing football (WB 217, 234). But this alternative hypothesis does not assist the appellant either, because if the appellant did not return with the x-ray, then this could not betoken evidence of negligence on the way the case was fought at trial (contrast Tai v Hatzistavrou [1999] NSWCA 306). 43 The fact that Dr Gibbs may have been wrong in referring to an x-ray was relied upon as affecting his general credibility, but the trial judge was in the best position to weight his response to being challenged on the matter. 44 The trial judge was correct to conclude that the appellant’s case depended on more than establishing a correct chronology of medical treatment by Dr Gibbs. It was vital for the appellant that his contested oral evidence should be accepted or at least find strong corroboration in the records. Neither occurred. 45 The Medicare records did not provide a sufficient indication of the actual treatment to corroborate the appellant’s case at its critical points. In particular: ¨ the records for 16 and 22 June 1991 in relation to an item described as “Joint or Other Synovial Cavity, Aspiration and/or Injection” were equally consistent with Dr Gibbs’ evidence that they were likely to refer to injections given at matches, that he never took aspirations at matches, and that he performed no aspiration upon the appellant’s elbow until 1992; ¨ the Medicare records relating to x-rays were more likely to concern the fractured finger, having regard to their date. 46    Absent production of the critical “blurred” x-ray, the probabilities are that the appellant never returned to Dr Gibbs with the x-ray commissioned on 13 May 1991, as the trial judge obviously concluded. If the appellant did return with x-rays of the elbow, the appellant’s inability to produce that x-ray or any record of it made it difficult to accept his uncorroborated and disputed evidence to the effect that Dr Gibbs noted its deficiency but chose to do nothing about it. 47    The trial judge rejected the appellant’s evidence that the doctor had strapped his elbow on a number of occasions. He was entitled to do this in the light of the doctor’s denial and the improbability that this would have occurred when there were trainers at the Club for that very purpose. 48    Sinclair DCJ was also entitled to conclude that the accuracy of the appellant’s evidence was further undermined by his dogmatic assertions as to the date of the injury and that he had first seen Dr Gibbs about the elbow, not Dr Bryant. 49    This is not a case where the documentary evidence gave the appellant’s case any clear support. It is therefore quite unlike State Rail Authority v Earthline Constructions Pty Ltd (In Liq) (1998) 168 ALR 588 upon which the appellant relied. The case remained in essence one that involved the judge deciding whether he preferred the evidence of the appellant over that of Dr Gibbs. The judge was not satisfied that the appellant’s evidence should be preferred. This conclusion turned in significant part upon a view formed of the appellant’s credibility based on his oral testimony, and it was a view which the trial judge was entitled to reach. 50 The claim against Dr Gibbs was correctly dismissed. Accordingly, so too was the claim against the Club, since it was necessarily based upon making good the allegation that there was negligence in the doctor’s diagnosis and treatment. It is true that there was evidence to the effect that, in some situations, a clearance from Dr Gibbs was a prerequisite to Mr Chidiac permitting a player to go on heavy weights. Dr Gibbs effectively gave that clearance in late 1991, by his silence, if not in express terms. But if there was nothing presented to the doctor which, according to proper medical practice, would have generated concern that heavy weight lifting would do permanent injury, then there was nothing negligent in the doctor’s silence. Dr Hughes’ evidence depended ultimately upon the appellant establishing that his symptoms as presented to Dr Gibbs in early and/or late 1991 were such as to generate the basis of a diagnosis that there were signs of serious elbow injury. 51 The appeal should be dismissed with costs. 52 HANDLEY JA: I agree with Mason P. 53 SHELLER JA: I agree with Mason P.

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