Coote v Kelly; Northam v Kelly

1. [1]

   Malcolm Coote, the deceased, died on 23 May 2012 from metastatic acral lentiginous melanoma (ALM). The melanoma was first diagnosed on 16 March 2011 following a biopsy taken by a Dr Rosalind Hiddins who had been consulted by Mr Coote since January 2011 for what various doctors believed to be a plantar wart on his left foot.

2. [2]

   He had first consulted the Defendant, Dr Steven Kelly, about pain and discomfort in that foot on 3 September 2009. Dr Kelly diagnosed a plantar wart which he treated with cryotherapy. Mr Coote went back to see Dr Kelly on a few occasions in 2009 and 2010 for that and other problems. He had also seen Dr Anthony Wall in the same practice as Dr Kelly on 2 September 2010. Dr Wall also considered that the lesion on the foot was a plantar wart and treated it with cryotherapy.

3. [3]

   In January 2011 Mr Coote was still having pain in his left foot. He was unable to obtain an appointment with Dr Kelly so he went to an afterhours medical centre at Charleston where he saw Dr Hiddins. He had first consulted her on 4 January 2011 because of an injury he sustained to his right elbow. A week later he saw Dr Hiddins again, this time for the foot problem. Dr Hiddins diagnosed a plantar wart and treated it with cryotherapy on that day, on 28 January and 11 February.

4. [4]

   On 24 February Dr Hiddins first observed pigmentation. She asked her supervisor Dr Cooke, to look at the lesion. He suggested letting the position settle for two weeks and then having another look at the lesion. When Mr Coote returned to see Dr Hiddins on 11 March 2011 Dr Hiddins observed a second lesion and noted that the first one had grown. It was also a darker colour. For that reason she performed a biopsy and sent it off for pathological testing.

5. [5]

   Prior to his death Mr Coote commenced proceedings against Dr Kelly for negligence. Mr Coote’s evidence was taken on commission because it was not known how long he would live. The trial was brought on with considerable expedition and took place before Schmidt J who gave judgment against the Plaintiff some five days later: Coote v Dr Kelly [2012] NSWSC 219.

6. [6]

   An appeal was taken by Mr Coote’s executor, his wife Melissa Coote, to the Court of Appeal where a new trial was ordered: Coote v Kelly [2013] NSWCA 357. Thereafter in 2014 two other sets of proceedings were commenced. The first was by Melissa Northam (formerly Melissa Coote) claiming under the Compensation to Relatives Act 1897 (NSW), and the other proceedings were also brought by her claiming nervous shock as a result of her husband’s diagnosis and death.

7. [7]

   The proceedings formerly commenced by the deceased have now been amended so that the Plaintiff is Melissa Coote as Executor of the Estate of the late Malcolm Coote. That claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

8. [8]

   The success of the claims depends largely on whether the evidence by Malcolm Coote and his wife about the description of the lesion is accepted. Their evidence, although not in entire agreement, was that the lesion contained a black centre, perhaps the size of match head as well as other pigmentation. This, the Plaintiff says, should have alerted Dr Kelly to the fact that the lesion was not a plantar wart but was a melanoma. The evidence of Drs Kelly, Wall and Hiddins was that at all times when they saw Mr Coote until the consultation with Dr Hiddins on 24 February 2011 the lesion did not display pigmentation nor any other indication that it was other than a plantar wart.

9. [9]

   That issue of breach was one of the two issues in the proceedings relating to liability. The issue of breach is determined chiefly by an assessment of the evidence of Mr and Mrs Coote on the one hand and the evidence of the three Doctors on the other hand which it is necessary to examine carefully. However, some aspects of the expert evidence shed light on that factual evidence.

10. [10]

    The other issue was the issue of causation, that is, whether it was any failure on Dr Kelly’s part that can be said to have been the cause of the metastasis of the melanoma leading to Mr Coote’s early death. Put another way, does the Plaintiff prove at least that by 20 May 2010 (the date of the deceased’s last consultation with Dr Kelly) the lesion had not metastasised: Coote v Kelly (CA) at [63]. The issue of causation is then to be determined by the evidence of the experts based to some extent on the evidence accepted in relation to breach.

11. [11]

    The Defendant submitted that, even if he breached his duty of care in not properly diagnosing the lesion, all that the Plaintiff lost was the chance of a better outcome. That is not sufficient, the Defendant submitted, to establish liability for negligence: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.

12. [12]

    It should be noted at the outset that by agreement between the parties I am to have regard not only to the evidence given before me but to the evidence at the first trial provided the witnesses who gave it are called and are available to be cross-examined. This evidence included the evidence of the deceased given on commission prior to the first trial. In addition I may have regard to the evidence of the expert general practitioners who gave evidence at the first trial but not at the trial before me, with the exception of Dr Lynch’s evidence about using an electronic calculator and his evidence concerning causation (see at T 277), and of their evidence about what a general practitioner would remember about the appearance of a lesion at some later time (see at T3); this evidence is referred to and commented on in the Court of Appeal’s judgment at [34] and [45].

The deceased’s evidence

1. [13]

   In the deceased’s affidavit sworn 24 November 2011 the deceased said that in about August 2009 he started to experience pain on a spot on the sole of his left foot. Because he had difficulty seeing the source of the pain he asked the Plaintiff to have a look at it. She said to him:

2. [14]

   The deceased said that he examined the lesion during September and October 2009 using a mirror. He said that he and the Plaintiff did not keep a record of the changes they observed, but those changes were that it was becoming darker in colour, crustier and more raised in appearance. It was also becoming more asymmetrical in shape and was flaking around the perimeter.

3. [15]

   The deceased said that he went to see his general practitioner, the Defendant, to have it checked out. The Defendant looked at the sole of his left foot for a few seconds without any magnification device. He said that it was a plantar wart. He pared it back with a scalpel and applied a substance to it from a hand-held container. There is no dispute that this was cryotherapy. The Defendant told him to come back in a few weeks and said it was likely there would be multiple treatments.

4. [16]

   The deceased returned to see the Defendant on 15 and 30 September and 14 October 2009. On each occasion the Defendant treated the lesion in the same way.

5. [17]

   He said that around April 2010 the lesion continued to grow in size and was becoming increasingly painful, it was causing him to limp and was interfering with his capacity to do his job. The deceased said that by May 2010, having increased at a relatively constant rate from September 2009, it had more than tripled in size from the time that he first saw it. He went back to see the Defendant. He told the Defendant that it was painful and was getting worse. The Defendant said he would treat it the same way as he had in the past because there was nothing much else they could do.

6. [18]

   On 2 September 2010 he consulted Dr Wall (the Defendant was not available) and told him that he was having difficulty walking on his left foot because of his plantar wart. He said that he was there to have it treated. Dr Wall examined his foot without the assistance of any magnification device. The deceased asked Dr Wall if there was any other way that it could be treated. Dr Wall said words to the effect:

7. [19]

   The Deceased said that Dr Wall applied cryotherapy in the same manner as the Defendant had done. As a result of what Dr Wall told him the deceased said he did not think there was much point in continuing with the treatment.

8. [20]

   In January 2011, after having been unsuccessful in his application to the Northern Territory police force, he again sought medical advice about the lesion on his left foot. He was unable to obtain an appointment with the Defendant so he went to an after-hours medical centre at Charlestown where he saw Dr Rosalind Hiddins. At the beginning of the consultation he said words to the effect:

9. [21]

   He saw Dr Hiddins again on 28 January and 11 February 2011 when she repeated the treatment. On 24 February, after Dr Hiddins had examined the left foot, she said:

10. [22]

    As mentioned earlier, the deceased gave evidence on commission on 16 December 2011. His evidence in chief was principally the affidavit sworn 24 November 2011 although that was supplemented with some brief evidence about his tax returns, the treatment that he was receiving and some evidence consisting of drawings made by the deceased of the appearance of the lesion at various consultation times with the Defendant. The deceased said that the first time he looked at the lesion on his foot was probably after the Defendant treated it for the first time. The first drawing indicated where on the foot the lesion was situated. The second indicated its size and shape as at 14 October 2009 with the drawing measuring 5mm in diameter. The third drawing was its appearance in May 2010 and its diameter appears there as 10mm. Finally, it was drawn as at the time of the first consultation with Dr Hiddins where its diameter was 15mm. In each depiction the deceased had drawn the lesion as being neither circular nor symmetrical in appearance.

11. [23]

    In cross-examination the deceased said that before he saw the Defendant he could not say what colour the lesion was. He asked the Plaintiff to look at it and she said that there was a dark circular mark there. He said after the cryotherapy the skin around it was slightly darker. He said that it first went black “within the first – between September and probably October, through those first three or four cryotherapies that we had”.

12. [24]

    He did not notice any little black spots in the centre of the lesion. He said the skin around it was slightly darker. He said that at about 5 September the lesion became darker “grey going on black type of colour”. He said it remained black from mid-September 2009 until it was finally excised and diagnosed. He insisted in answer to a number of suggestions put to him to the contrary that it was definitely black.

13. [25]

    It felt as if he had a small pebble in his shoe to walk on. He said that as at 28 January 2011 it was quite a bit bigger than 5 millimetres and it did not contract in size between 11 and 28 January 2011.

The Plaintiff’s evidence

1. [26]

   The Plaintiff prepared a witness statement for the first trial on 24 February 2012. In that statement she said that in August 2009 the deceased said to her that he had something wrong with his foot which felt like a bit of grit or a pebble in his shoe. She said that he showed her his foot. She saw on the sole of his foot between the heel and the arch a little black mark about the size of a match head. She said it was not a perfect round shape. In her oral evidence at the first trial she said that it was raised about 1 millimetre above the skin.

2. [27]

   She thought it was a piece of black tar and went to scrape it off with her fingernail. She said it was raised above the surrounding skin and she was not able to scrape it off. She suggested that he should have it checked out. The Plaintiff had had plantar warts herself as a child. She was also familiar with them as a physical education teacher coaching sporting teams. She had seen them on some of her pupils. She said that the mark on the deceased’s foot did not look anything like a plantar wart that she had seen.

3. [28]

   She said that after the deceased went to the doctor and had cryotherapy treatment she noticed that the lesion was growing in size. It became very black in the middle and more dark brown on the outsides. She said it looked as if it had bled into the skin and was leaching outwards. It was black and crusty following cryotherapy and was also becoming more raised above the surrounding skin.

4. [29]

   In cross-examination she reiterated that from the outset it looked like a small piece of black tar. She said the only time that she could categorically recall that it changed in nature was to get bigger and blacker but she could not put a time on that. She said that the position of the lesion was “right at that nexus point of the heel, the outside foot and the arch”. She denied that it was on his instep.

5. [30]

   She said that by the time the deceased saw Dr Wall it was about the size of a one cent piece and at least 2 millimetres high, probably more. By the time the deceased saw Dr Hiddins in January it was about the size of a five cent piece but was not round in diameter. She drew a picture of its shape and size which ultimately became page 103 of the court book. The picture she drew had ill-defined edges but it measured about 8 to 10 millimetres in diameter.

6. [31]

   She was asked if it was possible that by about 28 January 2011 when the deceased went to see Dr Hiddins that the lesion had started to contract but she said “No, never”. On 11 February she denied that there were two lesions. She said it was an extension of the original.

7. [32]

   The evidence that she gave before me did not deviate from her evidence at the first trial. In particular, she was adamant that the lesion was always black.

The Defendant’s evidence

1. [33]

   The Defendant’s evidence which largely emerged during cross-examination at this trial, was largely consistent with the evidence he had given at the first trial. It may be summarised as follows.

2. [34]

   He had no specific recollection of consultations with the deceased but he had a general recollection of treating the deceased for a plantar wart on his foot. At the earlier trial he said that he could recall two matters. He said he could recall an occasion where the deceased had his foot on the Defendant’s desk with a blue disposable sheet underneath it. The second memory was when the deceased was lying on the Defendant’s bench while the Defendant treated the wart. The Defendant said at the second trial that he did not retain those two memories at the time of giving evidence at the second trial.

3. [35]

   The Defendant’s notes of the consultations are brief in the extreme. They relevantly read:

4. [36]

   Because the Defendant had no specific recollection of the consultations nor of what the lesion looked like, he was reliant on both his usual practice and on the fact that he had written “plantar wart” on his notes. Although the Defendant was pressed hard in cross-examination about his conviction from writing “plantar wart” that the lesion had no melanotic features, his evidence was to the effect that the fact that he wrote “plantar wart” meant that, in accordance with his usual practice, it had certain characteristics including thickening of the skin and that it was not in any way pigmented at the time he saw it. The words “plantar wart” were, he said, a descriptor. He said that he wrote “plantar wart” and that, by definition, is not pigmented. He accepted in cross-examination at both trials that a plantar wart can be pigmented but he would not have used the term “plantar wart” nor treated it the way he did if it had been pigmented.

5. [37]

   He stressed a number of times that if it had had pigmentation, not only would that have been a red flag, but it would have meant that it was inappropriate to treat it by way of cryotherapy, and consideration would have to have been given to a differential diagnosis that would have included a melanoma. Another way of expressing this is that what the Defendant was saying was that writing “plantar wart” was a shorthand way of saying that he had examined the lesion and been satisfied from the algorithm of colour, shape, contour and size that it had features of a plantar wart and did not have melanotic features.

6. [38]

   He said it was not necessary to use a dermatoscope or any form of magnification because any pigmentation would be apparent to the naked eye.

7. [39]

   He said that although he could not remember the lesion or the consultations themselves to know if there was any change in the size or otherwise of the lesion during the nine month period he treated the lesion, he said that his usual practice would have been to inspect it each time the deceased came in for treatment. His evidence was to the effect that he would not have treated the lesion with cryotherapy if it had been pigmented. For that reason, he was satisfied that it was a plantar wart.

8. [40]

   I thought that the Defendant was an intelligent and careful doctor whose main fault, which he accepted, was the shorthand way he kept his notes. He was honest enough to admit that he had no recollection of the consultations. I accept, however, that when he wrote “plantar wart” in his notes and treated the lesion with cryotherapy he did so, having properly assessed that the lesion he saw had all of the characteristics of a plantar wart and none of the characteristics of a melanoma with both of which he was familiar. I accept that his reference to pigmentation in a lesion being a “red flag” means that he was very aware of the need to exclude from any diagnosis the possibility of a lesion being a melanoma. The evidence he gave at his first trial that he always considers malignancies for foot lesions further supports the position that he took care to ensure that the lesion did not have characteristics of a melanoma such as being pigmented.

Dr Wall

1. [41]

   Dr Wall saw the deceased only once on 2 September 2010. That appears to have occurred because Dr Kelly was not available on that day. Dr Wall’s notes were as brief as the Defendant’s notes. The entry for 2 September simply reads:

2. [42]

   Dr Wall’s evidence at the second trial before me was that he had a clear recollection of the consultation. That was because of the aggressive approach that the deceased took to the consultation with Dr Wall. Dr Wall said that when he asked the deceased and his wife to come into the consultation room, the deceased stood in the room and shouted at him saying “You’re not my doctor. My doctor is Dr Kelly and the only reason I’m seeing you is because I can’t get in to see my doctor”. That was the reason Dr Wall had a clear recollection of the consultation. He said that Mrs Coote sat to the left of her husband and did not say a word throughout the consultation.

3. [43]

   Dr Wall said that although he could clearly remember the consultation the clinical details in relation to the lesion were not so clear. He said his recollection of it was that it was a warty lesion but was not coloured. He treated it with cryotherapy although he prefers not to treat plantar warts in that way. However, he was trying not to inflame the situation further with the deceased.

4. [44]

   Dr Wall, whilst accepting that there must have been a melanoma on the foot when he saw the deceased, said that there was nothing to indicate the presence of the melanoma because if there had been he would have noticed it.

5. [45]

   At the first trial Dr Wall gave this evidence:

6. [46]

   Dr Wall was challenged in his evidence before me that he said nothing at the first trial about the deceased’s hostility towards him nor made any reference to it when his memory was being challenged about his recollection of that consultation. Dr Wall gave three explanations for not having done so. He first said he was not asked at the first trial to say why he had a specific recollection of the consultation. Secondly, he said that he did not wish to speak ill of the deceased at the first trial because he was either dying or had just died and Dr Wall did not want to say unpleasant things about his character. The third reason he gave for not having given the explanation concerning the deceased’s hostility was:

7. [47]

   After Dr Wall had said at the first trial what appears at [45] above, Mr Morris SC, who was leading evidence from him, said:

8. [48]

   He was asked in cross-examination at the first trial whether he used a dermatascope and he said that he did. He was then asked why he did not tell the Court that he had applied a dermatoscope at the examination when he described the consultation. Dr Wall said that he had not finished what he wanted to say and mentioned that he had also not described that he froze the wart.

9. [49]

   In re-examination Mr Morris said this to Dr Wall:

10. [50]

    In relation to Dr Wall’s recollection of the consultation with the deceased the following evidence was given at the trial before me (T 114):

11. [51]

    A little later in cross-examination he gave this evidence (T 117):

12. [52]

    At the first trial Dr Wall said that he remembered observing a hyperkeratotic lesion which is a lesion with abnormal thickening of the upper outermost layers of the skin. He said that at one end of the lesion the skin was thicker and at the opposite end it appeared to become more superficial where it ended in a rim of dry skin. The surface of the lesion had a yellowish discolouration but there was no other discolouration on the lesion. Dr Wall specifically denied that the lesion was black. If it had been black he would have immediately been alarmed and thought it was not a plantar wart. He would have thought it was a melanoma until proved otherwise. He said that he agreed with the diagnosis of plantar wart.

13. [53]

    Dr Wall said he remembered that he looked at the lesion with a dermatoscope.

14. [54]

    Dr Wall agreed that he had been provided with a copy of an affidavit made by the deceased. He denied, however, having no recollection of the consultation and giving his evidence based on the information contained in the deceased’s affidavit.

15. [55]

    There were difficulties with Dr Wall’s evidence given in the trial before me. He was wrong about the Plaintiff being present at the consultation. I accept her evidence that she was not present. The school records corroborate her evidence. That he was so adamant the Plaintiff was present is of concern when the remainder of his evidence is assessed. It causes me to have some doubts about his account of what happened during the consultation particularly the unpleasantness at the outset. That is especially so when it was never raised at the first trial and in circumstances where, contrary to what he said at the second trial, he was not cut off from relating it and had a further opportunity in re-examination. Nor can I ignore that Dr Wall had his own interests to protect with his medical insurer being involved, and he appeared to be a little defensive.

16. [56]

    On the other hand, I had the impression that Dr Wall was an experienced doctor who well knew the difference between the appearance of a plantar wart and a melanoma. That experience led him to accept that, despite the appearance of the lesion, there must have been a melanoma present because of what ultimately transpired, and he did not feel good about the fact that he must have missed it.

17. [57]

    It is also of significance that the evidence he gave at the first trial was given 18 months after the consultation whereas the evidence in the trial before me was given five years and nine months after the consultation. Dr Wall did not at the first trial assert that the Plaintiff was present nor that there had been an altercation with the deceased. His evidence at the second trial about these matters is a very good example of what is discussed in the authorities which I will set out at length later in this judgment. However, I consider his evidence at the first trial is likely to have been reliable but I place little store on the evidence he gave before me unless it was consistent with his evidence at the first trial.

18. [58]

    That evidence strengthens the view I have from the evidence of the Defendant and, particularly, Dr Hiddins (to whom I will come) that the lesion had all the indications of being a plantar wart.

Dr Hiddins

1. [59]

   The deceased’s first consultation with Dr Hiddins was on 4 January 2011 but it concerned pain in his right elbow from having lifted a generator onto a motor vehicle when he was camping. There was no mention of the lesion on the foot.

2. [60]

   Dr Hiddins’ notes record consultations as follows:

3. [61]

   Dr Hiddins recalled the deceased presenting to her with a painful lesion on his foot. This was the second time she had seen him in the practice she was working in. She said that the lesion was on the instep or the arch of the foot, close to the heel. It was not on the weight bearing part of the foot but close to the heel. The deceased told her that he was trying to improve his fitness to pass a police fitness test and he was getting considerable pain from the lesion on his foot which was preventing him from improving his fitness. He mentioned that he had seen a GP previously for treatment with cryotherapy. Dr Hiddins could not recall how many treatments he had undergone.

4. [62]

   When Dr Hiddins looked at the lesion she had the impression that it was a plantar wart. In her evidence at the first trial Dr Hiddins said that she had an image in her head of what the lesion looked like on the first occasion she saw the deceased for that problem. She said it was approximately 5mm in diameter, fairly symmetrical, a nice circular appearance to it, it was predominantly flesh coloured and had very small brown spots scattered throughout which was consistent with a plantar wart.

5. [63]

   She examined it using a magnifying glass with a fluoro light around it. Dr Hiddins had never seen a melanoma before that time. She did know, however, that melanoma could occur on the foot. She was shown the diagram drawn by the deceased of the size of the lesion as at January 2011 (Court Book 103) but she said that the lesion was much smaller than what was represented in the diagram when she first saw it. She also denied that it was dark all over as the Plaintiff indicated in the diagram.

6. [64]

   She had treated plantar warts in that practice in the seven months prior to March 2011. Dr Hiddins said that the lesion’s growth was quite symmetrical. It had a distinct border which was regular and it was quite circular and discrete from the surrounding tissue. There was no crustiness on the first occasion that she saw the deceased before she applied the cryotherapy.

7. [65]

   Dr Hiddins said that plantar warts could last for up to 24 months regardless of treatment. The treatment was aimed at generating an immune response to cause inflammation so that the body’s immune system recognises the virus and fights off the wart. She said she was aware of that in January 2011 because her supervisor, Dr Cooke, had discussed that with her prior to treating the deceased. Dr Cooke had told her that he had had good anecdotal experience by treating warts at regular intervals. He had told her that she was more likely to get a successful result if the patient came in regularly. If there had been large gaps in the treatment there may not have been an adequate response generated.

8. [66]

   When Dr Hiddins first saw the deceased she thought that the treatment he had received had been infrequent. The deceased had told her that he had a truck driving job and was often away from Newcastle “quite a bit”.

9. [67]

   She said that she could recall what the lesion looked like on the second occasion on 28 January. She said it looked as if it had improved and was actually shrinking or contracting in its appearance. She measured the lesion at 5mm in diameter. The deceased told her that he had been using a salicylic acid preparation. Dr Hiddins observed that it was still flesh coloured with small brown spots and had more of a dry flaky top to it. It was a little bit more shrivelled.

10. [68]

    On the next occasion, 11 February 2011 she noted that the large wart measured 10mm in diameter but there was another wart closer to the heel 5mm in diameter. That was of the same appearance – predominantly a flesh coloured lesion with brown spots. The deceased said he had not used the salicylic acid since the last consultation.

11. [69]

    The growth and the further lesion did not concern her because use of cryotherapy can actually cause the virus to become more active. In that way the wart can become worse before the immune system responds to improve the position. She expected, therefore, that when he returned on the next occasion the lesion might have cleared.

12. [70]

    In her evidence at the first trial Dr Hiddins said that she knew a melanoma could occur on the foot. When asked what her understanding of a melanoma was she said it was usually a pigmented lesion and was quite a serious type of cancerous skin cancer. On the other hand, a plantar wart is a type of skin lesion usually on the sole of the foot. It was caused by a virus that produces an irregular looking lesion on the sole of the foot.

13. [71]

    When the deceased came back on 24 February Dr Hiddins said that it had dramatically changed. It had gone from a flesh coloured lesion to a more purple pink type lesion and it was painful for him to walk on it. It was a vastly different lesion and it was much larger. When she pared it at that time it bled so she abandoned that. With that presentation Dr Hiddins considered the need for a differential diagnosis. Alarm bells began to ring. She asked her supervisor, Dr Cooke, to have a look at it to give a second opinion. He recommended not treating the lesion at that consultation but to leave it for two weeks to see what progressed and to see if it resolved.

14. [72]

    When the deceased returned on 11 March he reported again that he had not used the salicylic acid. The lesion had grown from the previous treatment and it was painful for him to walk on it. Dr Hiddins noted that it was a lot darker than when the deceased had first presented, and she was a bit suspicious that perhaps it was a cancerous lesion at that point. She recommended a biopsy of it.

15. [73]

    Her referral letter to Dr Ralph Gourlay dated 16 March 2011, after the biopsy demonstrated a melanoma, said in part:

16. [74]

    At the first trial it was put to Dr Hiddins, on the basis of a statement made by the deceased, that when he told Dr Hiddins he had a plantar wart on the bottom of his left foot which was painful, Dr Hiddins examined his foot and said words to the effect “Is that a plantar wart?” Dr Hiddins said that she did not recall saying that. When Dr Hiddins gave evidence before me it was put to her that when she looked at the lesion that she said words to the effect that it didn’t look like a plantar wart. Again, Dr Hiddins said that she could not recall saying that. There was no evidence from anyone that Dr Hiddins made a positive assertion to the deceased that the lesion did not look like a plantar wart to her. The question asked seemed to be a gloss on what the deceased reported that Dr Hiddins had said. I am not satisfied that she did say to the deceased “Is that a plantar wart?” It is inconsistent with what is disclosed in her contemporaneous notes and in her evidence which I accept.

17. [75]

    Dr Hiddins was also shown at the first trial a picture of the lesion taken on 28 March 2011, the day before it was excised. Dr Hiddins said that when she last saw the lesion on 11 March it was a purple-bluish hue whereas she described the colour in the photograph as quite brown and almost black.

18. [76]

    I was impressed with Dr Hiddins. She struck me as a careful doctor although very junior at the time of these events. Of all the doctors she made the most detailed notes which are very helpful in reaching a view about the appearance of the lesion at the times she saw the deceased. Her memory of the consultations was good, perhaps aided by the fact that she was a relatively new doctor and perhaps aided by her notes. Although she had not seen a melanoma by the time she saw the deceased she had seen a number of plantar warts and she was well aware of melanoma and what to look for in a lesion. It is significant also that she examined the lesion under magnification.

19. [77]

    I accept that Dr Hiddins had her own interests to protect because a letter claiming contribution from her had been sent by the Defendant’s lawyers. She was not, however, at all defensive in the way she gave her evidence

20. [78]

    Dr Hiddins’ evidence was entirely supportive of the Defendant’s assessment that the lesion was a plantar wart. In particular, her description of it and its lack of pigmentation until 24 February provides support for the evidence of the Defendant and Dr Wall as to what they saw.

Dr Cooke

1. [79]

   Dr Cooke gave evidence that Dr Hiddins asked him for his opinion on a lesion on the deceased’s foot. Dr Cooke did not think the lesion appeared as what he would have expected a plantar wart to look like after it had had a number of sessions of cryotherapy. It had a moist, fleshy, slightly pearly appearance, maybe half a centimetre in diameter.

2. [80]

   Dr Cooke said that after lesions have been frozen and patients had also put wart paint on them, they could get a chemical burn appearance. It was difficult to decide in such circumstances how much was a lesion and how much was the side effect of the treatment. He suggested that it be left to settle down for two weeks and then reviewed.

3. [81]

   Dr Cooke clarified in cross-examination that when he referred to the appearance as “pearly” he was referring to its colour. He did not think it had the characteristics of a plantar wart and that was when he started thinking of alternative explanations. He was shown the photograph of the lesion taken on 29 March 2011 but he said the photograph did not look like what he saw. He said that the lesion in the photograph looked a little darker than he recalled.

4. [82]

   I thought that Dr Cooke was a measured witness whose evidence should be accepted. There was no suggestion from any party that he might have any responsibility for what transpired. He had no interest to protect. On any view of the evidence he acted appropriately.

Expert evidence

1. [83]

   The joint report of the general practitioners showed almost complete agreement between them except as to the extent necessary to record features of the lesion. Two assumptions were put to the experts. The first was that the lesion was dark or black in colour. On that basis the experts agreed that in failing to examine the lesion with magnification, in failing to obtain detailed history of symptoms, in failing to consider ALM as a differential diagnosis, in failing to record the features of a lesion, in diagnosing the lesion as a plantar wart and treating it with cryotherapy, and in advising the deceased to return for review in a couple of weeks’ time, the Defendant did not act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. They were of the view that a majority of peer professionals would refer a patient with a dark or black lesion on the sole of the foot for a further opinion from a specialist or, in the alternative, biopsy the lesion in order to obtain a definitive diagnosis.

2. [84]

   The second assumption put to them was that the lesion was not dark or black in colour. In those circumstances they agreed that if the lesion was 10mm in diameter as stated, magnification was not required. They agreed that a detailed history regarding the symptoms was very important. They agreed that in circumstances where the lesion looked like a typical plantar wart, where the lesion lies in a typical site for a plantar wart, and where there are no atypical features in the lesion, the majority of peers would not consider ALM as part of the differential diagnosis. However, if there were atypical features or if the site of the lesion on the sole of the foot is not in a typical area in which plantar warts commonly arise, a differential diagnosis which may include ALM should have been considered. They differed on this assumption whether it was important to record the features of the lesion. One doctor thought it was important and the other said that the majority of peers would not record the features when the lesion was typical of a plantar wart and there was no concerning features. The description provided in the assumptions was not considered by that doctor to provide any concerning features.

3. [85]

   When these doctors gave their evidence concurrently they were asked about the location of the lesion for the purpose of the second alternative assumption put to them, namely, that the lesion was not black or dark in colour. Dr Lynch was of the view that the location identified by the Plaintiff, being at the nexus point of the heel, the outside foot and the arch, was atypical for a plantar wart. Dr Jammal thought it was not atypical because it was relatively within the weight bearing area and that plantar warts can occur anywhere on the sole of the foot. Dr Jammal also thought that the fact that the deceased found the lesion painful swayed him towards the fact that it was still a wart and that the site was not atypical. The matter was not resolved beyond the competing evidence.

4. [86]

   There was some minor disagreement about whether magnification should have been used. Dr Lynch said that if the lesion was 5mm in size he would apply magnification under good light. Dr Jammal said that if it was 5mm and not dark or black he did not usually need magnification. If it was smaller than that, and depending on the lighting, magnification might be needed. Neither doctor addressed the question in terms of what a reasonably competent general practitioner would do but said only what he would do.

5. [87]

   Both doctors agreed that if the lesion was about 2mm or the size of a match head and was dark or black, that would be atypical and a diagnosis other than plantar wart would have to be considered.

6. [88]

   The general practitioners were not called to give evidence before me. Their evidence does not help me determine the correctness or otherwise of the observations of the lesion reported either by the Plaintiff (and the deceased) or by the treating doctors except as to the position of the lesion. I am satisfied that the lesion was on a weight-bearing part of the foot. It was not in an atypical position on the foot to give rise to a suspicion that it may have been other than a plantar wart.

7. [89]

   At the first trial four specialists gave concurrent evidence. They were Professor Stan McCarthy, a pathologist; Dr Greg Crosland, a dermatologist; Professor William McCarthy, an oncologist and Dr Ian Katz, a pathologist.

8. [90]

   After the first trial and prior to the second trial those four specialists were joined by Professor Roger Sinclair, a pathologist and Professor Brendan Coventry, a surgical oncologist, in preparing a joint report from a conclave that they held in April 2016. The joint report was dated May 2016 and consisted of some 50 pages of text answering a large number of questions put to the doctors.

9. [91]

   At the second trial before me those six specialists gave concurrent evidence. Whilst there was considerable agreement amongst the specialists about many matters, differences remained. I found all of their evidence both from the first trial, the joint report and in the evidence they gave before me very helpful. However, it needs to be observed that the doctor least able to be swayed from his own opinions was Professor William McCarthy and, in that sense, he came across both orally in the concurrent evidence before me and on my reading of the concurrent evidence from the first trial and the report of the conclave as something of an advocate for the position of the Plaintiff and the deceased. That is not to deny his very considerable experience and learning in relation to melanomas.

10. [92]

    Whilst it is obviously the case that none of the specialists could say what the appearance of the lesion was on the deceased’s foot, there were issues about whether what was observed by the general practitioners could reasonably have been a plantar wart. What is undeniable is that when the lesion was biopsied in March 2011 it was a melanoma and when it was excised on 29 March 2011 it had a Breslow thickness of 4.4mm. That itself was an indication that it had been present for some time, although how long that might have been was the subject of some dispute amongst the specialists. A related issue was whether, in addition to having the melanoma the deceased might also have had a plantar wart at the time he was first seen by the Defendant and, perhaps, for some period thereafter. The expert evidence was unanimous in accepting that a plantar wart cannot change into a melanoma because each emerges from different tissue. A fair assessment of the experts’ evidence was that the majority of them could not rule out the possibility that there had been a plantar wart in that position on the deceased’s foot at some time.

11. [93]

    It is important that the relevant evidence should be set out. The following is the relevant evidence from the first trial.

12. [94]

    To similar effect were some of the answers in the joint report as follows:

13. [95]

    In the concurrent evidence before me both Professor Stan McCarthy and Dr Sinclair could not exclude the possibility of the previous presence of a wart but they thought it was unlikely.

14. [96]

    Professor William McCarthy in his reports allowed for the possibility that there may have been a plantar wart present at the site of the melanoma. Although in his report of 28 February 2012 he noted that none of the pathology reports indicated the presence of a plantar wart within or around the melanoma and he noted that he did not find in the literature or in his experience any reports of the coexistence of acral lentiginous melanoma and plantar wart lesions, by the time of his report of 19 March 2014 and thereafter he seemed to accept the possibility that both might have been present. In his report of 19 March 2014 he said:

15. [97]

    Later in that same report Professor McCarthy said this:

16. [98]

    In his report of 1 February 2015 he said it was unlikely (“i.e. less than 50%”) that a plantar wart was in fact present in the same place or adjacent to the melanoma.

Consideration

1. [99]

   The difference between the evidence of the Plaintiff and the deceased on the one hand and the four doctors (Dr Cooke less so but not to be put out of consideration) on the other hand is stark. It should be said at the outset that I consider that all of the witnesses were endeavouring to tell the truth in the accounts they gave of the disputed events. The issues in relation to breach have always been about reliability and not honesty.

2. [100]

   In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

3. [101]

   In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

4. [102]

   In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

5. [103]

   For the reasons which follow I am entirely satisfied that at the times the treating doctors saw the lesion on the deceased’s foot from 3 September 2009 up to and including 11 February 2011, it had the appearance of a plantar wart. It was not pigmented and it was certainly not black. Whether there was a melanoma present at those consultations the evidence does not permit a conclusion except to say that the closer one gets to 24 February 2011 the more likely it is that one was present. I do not consider that a melanoma, if present, was discernible by the exercise of reasonable care on the part of the Defendant. The reasons which follow explain why I do not accept the evidence of the deceased and the Plaintiff in their descriptions of the lesion.

6. [104]

   Senior Counsel for the Plaintiff submitted that the Defendant had no memory of the consultations and in the consideration of whose evidence should be accepted of his evidence and the Plaintiff’s there was only one answer because the Plaintiff did have a memory of what the lesion was like at the time of those consultations. He submitted that the effect of the Defendant’s evidence was that what he saw was a plantar wart because he had so described it in his notes. It was, he submitted, an ipse dixit.

7. [105]

   Senior Counsel submitted that no store could be placed on the evidence of Dr Wall because Dr Wall’s memory had been shown to be wrong about the one consultation he had with the deceased. It was submitted further that Dr Wall was defensive in his manner of giving evidence concerning his treatment of the deceased.

8. [106]

   Senior Counsel submitted that the evidence that Dr Hiddins asked the deceased if the lesion was a plantar wart suggested that she did not really recognise it as a plantar wart. He submitted that her expertise was in doubt, noting that she was a very junior doctor. He submitted that there were inconsistencies in her evidence, and he noted that she did not measure the lesion on the first occasion she saw it.

9. [107]

   On 26 July 2011 solicitors acting for the deceased wrote what must be seen as a letter of demand to the Defendant. The letter said that the solicitors had been instructed that the deceased consulted the Defendant about a melanoma under his left foot in March 2010. In fact, the first such consultation was 3 September 2009. Without being critical of the deceased who, by that stage, was dealing with the metastatic spread of the melanoma, this demonstrated that his recollection for dates and events was at the time poor.

10. [108]

    In her evidence at the first trial the Plaintiff said a number of times in her evidence that the deceased’s memory for events was bad: see T 57.45, T 76.50 – 77.6 and T 98.22 – 99.2. That poor memory impacts on the deceased’s evidence of how the lesion looked at any particular time. I cannot place a great deal of weight on the deceased’s evidence in that regard. His evidence and that of the Plaintiff was not always consistent. He said, for example, that for six weeks in September and October 2009 the lesion was becoming darker in colour after he sought treatment from the Defendant. The Plaintiff, on the other hand, said that it was always black.

11. [109]

    The deceased said that the lesion continued to grow at a relatively constant rate so that by May 2010 it was three times the size it was when he first saw it. He drew the size of the lesion at 3 September 2009 and the diameter of the drawing was 2-3mm. He drew the size of the lesion at May 2010 as 10mm. He drew the size of the lesion at September 2010 as 12mm to 13mm. He drew the size of the lesion at 1 January 2011 as 15mm. All of that evidence is inconsistent with the contemporaneous measurements made by Dr Hiddins in January 2011.

12. [110]

    According to the Plaintiff the lesion was always black, commencing at match head size, and increasing over the 18 month period without ever contracting. In the Plaintiff’s opinion, it did not look like a plantar wart. She had had plantar warts herself and seen them on school children she had taught.

13. [111]

    On the other hand, each of the Defendant, Dr Wall (I am chiefly having regard to his evidence at the first trial) and Dr Hiddins considered that the lesion looked like a plantar wart. All of them were conscious of the significance of pigmentation in a lesion. If there had been pigmentation each would have followed a different course from simply applying cryotherapy and advising on the use of across-the-counter treatments together with paring of the lesion.

14. [112]

    I accept that the Plaintiff was an entirely honest witness endeavouring to give evidence as accurately as possible. The issue is, however, whether with the passage of time her evidence can be relied upon in relation to the description of the lesion.

15. [113]

    The Plaintiff’s evidence must be considered in the light of the contemporaneous evidence associated with Dr Hiddins’ examinations. When Dr Hiddins first measured the lesion on 28 January she measured it at 5mm in diameter and her impression was that it was shrinking or contracting. On 11 February it had increased in size to 10mm. Those matters were entirely inconsistent with the evidence of the Plaintiff that when the deceased saw Dr Hiddins in January it was about the size of a five cent piece. It is also inconsistent with her evidence that the lesion never contracted – “at no time did it ever decrease in size, right from September 2009, or August 2009, right up until 2011 March. I’m emphatic about that” (CB 361); “no, never” (CB 375). For that reason also her evidence that at the time the deceased saw Dr Wall the lesion was about the size of a one cent piece cannot be accepted.

16. [114]

    The drawings made by the deceased and the Plaintiff suffer from the same problem as their memory of the events. They are the product of persons casting their minds back to what they honestly believe was the case. The more reliable evidence must be the notes of Dr Hiddins which are inconsistent with the drawings representing the true position at the asserted times. The fact that Dr Hiddins’ notes cast doubt upon the evidence of the deceased and the Plaintiff as to the size of the lesion at any given time also casts doubt on their description otherwise of the lesion. So too does the Defendant’s conclusion in his notes that it was a plantar wart for the reasons already given and, to a lesser extent, the evidence and treatment given by Dr Wall. Even Dr Cooke’s evidence concerning the colour of the lesion is inconsistent with the adamant assertion of the Plaintiff that the lesion was always black from the beginning.

17. [115]

    In my opinion, on an assessment of all of the evidence, what the Defendant was confronted with was a lesion that to all intents and purposes appeared to be a plantar wart. Indeed, it may have been a plantar wart. The evidence does not support the recollection of the deceased and the Plaintiff that the lesion was always black nor that it was the size they have remembered nor that it did not shrink in size whilst being treated by Dr Hiddins.

18. [116]

    The fact that there was ultimately a melanoma present at or immediately adjoining the location of the lesion seen by the Defendant is the principal matter which provides support for the evidence of the deceased and the Plaintiff. However, I consider that the evidence from the specialist doctors set out above is such as to allow for the possibility that there may have been a plantar wart present or that the appearance of what was present when reasonably investigated by the Defendant was that of a plantar wart. Certainly, even Professor William McCarthy was of the opinion that the lesion was a difficult one to diagnose and was likely at least to have had verrucous features. It is also significant that Dr Cooke did not have a final view about what he saw as late as 24 February 2011. He thought it was atypical of a plantar wart and considered a differential diagnosis some form or tumour, perhaps a melanoma but he was not sure.

19. [117]

    The experts disagreed about the significance of the finding of human papilloma virus (HPV) nuclei in the tissue excised and biopsied. The experts appeared to agree that HPV could be found in normal skin tissue. Dr Crosland (with whom Professor Stan McCarthy, Professor Coventry and Dr Katz agreed) said in the Joint Report that the presence of the HPV in the tissue may be of some significance as it may indicate that a plantar wart was or had been present. Professor Sinclair thought that the HPV did not exclude the presence of a viral wart. The experts appeared to say that its presence was not diagnostic of a plantar wart.

20. [118]

    A great deal of time was taken up in the concurrent evidence given before me in examining a number of enlarged photographs of the tissue sample with those acting for the Plaintiff endeavouring to show that the features demonstrated were not diagnostic of a plantar wart. I do not think that the evidence ultimately moved beyond what was said in the Joint Report about this issue which I summarised in the previous paragraph. The experts’ conclusions were by no means determinative of the question whether there was or had been a plantar wart but they were to some extent supportive. It is a further matter to be added into the mix.

21. [119]

    The only difference of significance between the expert general practitioners was whether the lesion was located on an atypical part of the sole of the foot for a plantar wart. Dr Lynch thought that the location was atypical and that this should have alerted the Defendant to the possibility that the lesion was not a plantar wart. Dr Jammal thought its position was typical for a plantar wart. It is not possible for me to resolve this difference from anything that appears in the transcript of their evidence nor from anything in the joint report apart from observing that it is simply another factor, along with the size, colour and other appearance of the lesion as well as the opinion of the various non-expert doctors which must be taken into account.

22. [120]

    Nothing said by the specialist doctors assists in resolving that aspect of the matter. One matter of significance, however, is that the pain and the need to limp (according to the deceased’s evidence) points to a weight-bearing part of the foot where a plantar wart would typically appear, as I noted earlier. I am not persuaded, taking all of those things into account, that the position of this lesion on the deceased’s foot should have required a different approach by the Defendant from what he did.

23. [121]

    Moreover the evidence from the specialists means that I cannot find on the balance of probabilities that a melanoma was present at the time the Defendant saw the lesion although there undoubtedly was a melanoma at a later time, albeit difficult to diagnose because of its appearance. The evidence of Professor Coventry concerning the lesion’s rapid growth is strong evidence supporting this view.

24. [122]

    The Plaintiff pleads some eleven particulars of negligence. Many of them proceed on the assumption that the lesion was pigmented and was a melanoma, and that the negligence of the Defendant was the failure properly to examine it, diagnose that it was a melanoma and send the deceased off for appropriate treatment of it. My finding is that the lesion had the appearance of a plantar wart and was not pigmented and there was nothing to alert the Defendant to the presence of a melanoma if it was present.

25. [123]

    Other particulars include failures to examine the lesion with good light and magnification and to take an appropriate history, record it and make proper notes of what the Defendant observed. For the reasons already given, including what the experts, particularly Dr Crosland and Professor William McCarthy, said about the use of a dermatascope I do not consider that the Defendant breached his duty of care in that regard. It is significant also that Dr Hiddins did examine the lesion under lighted magnification and reached the same conclusion as the Defendant that what she was dealing with was a plantar wart.

26. [124]

    The Defendant’s note-making was inadequate but that was not a precaution that should be taken to prevent a risk of harm (s 5B Civil Liability Act). Nor was it causal of the damage suffered by the deceased or the Plaintiff (s 5D(1)(a) CLA).

27. [125]

    Given the findings of fact I have made about the appearance of the lesion I consider that the Defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice (s 5O CLA). The general practitioner experts support that conclusion and, as far as the Defendant’s approach to the treatment of a pigmented lesion is concerned (that is, not treat with cryotherapy and refer to a specialist), so did the evidence of Dr Wall and Dr Hiddins.

28. [126]

    In my opinion, the Defendant did not breach his duty of care to the deceased or to the Plaintiff.

29. [127]

    I do not accept, however, that the Plaintiff’s case should be characterised as a loss of a chance of a better outcome.

Causation

1. [128]

   In the light of my conclusion that no breach is established it is not strictly necessary to consider the issue of causation. However, in deference to the evidence concerning causation and to the parties’ submissions, I should indicate my conclusions about the issue.

2. [129]

   The nub of the causation enquiry was when metastasis first took place. As the Court of Appeal indicated at [63], the “particular harm” which the Plaintiff needs to show was caused by the Defendant’s breach was the metastasis of the melanoma. Provided the melanoma was able to be removed before it had metastasised the evidence suggested that the deceased would, on balance, have lived a normal life as far as the melanoma was concerned. That is to say, his life expectancy and health would not have been affected by the melanoma. However, the possibility of recurrence could not be ruled out. The Plaintiff had to prove (s 5E CLA) that at the times the deceased saw the Defendant the lesion was a melanoma and that it had not then metastasised.

3. [130]

   Question 12 in the Joint Report of the specialist experts asked them to assume that the lesion was not dark or black in colour as at 3 September 2009 and then asked on the balance of probabilities whether it was possible to say what the lesion was. All of the experts said that it was not possible to say. However, Professor William McCarthy and Professor Sinclair said that with later knowledge of what the lesion was the lesion could have been an amelanotic melanoma (a melanoma without pigmentation). Professor McCarthy then qualified that to say there was likely to have been subtle pigmentation which confused the clinicians.

4. [131]

   Subsequent questions asked the same question with respect to each of the later consultations with the Defendant. All of the experts with the exception of Professor William McCarthy and Professor Sinclair said that it was unknown whether the melanoma did exist at any of the dates on which the deceased saw the Defendant even having regard to the advanced stage of the melanoma on its excision in March 2011. Both Professor William McCarthy and Professor Sinclair assessed the likelihood of the melanoma being present from at least 3 September 2009 as 100%. The experts other than Professor William McCarthy and Professor Sinclair all agreed that it became increasingly probable that at some point between 11 January 2011 and the final diagnosis in March 2011 that melanoma was present.

5. [132]

   As at 29 March 2011 Stage 3 melanoma was diagnosed. The CT scan performed on 7 April 2011 documented no evidence of metastatic disease (Joint report CB 840).

6. [133]

   All of the specialist experts said that it was not possible to say whether metastatic spread had taken place at any of the dates on which the Defendant saw the deceased. They said it was not possible to say whether or not the lesion had the features described by the Plaintiff and the deceased on the one hand or the features described by the Defendant, Dr Wall and Dr Hiddins on the other hand. However, Professor William McCarthy qualified that statement by saying that the lesion was definitely a melanoma in March 2011, it was a deep melanoma and it had already spread to the lymph nodes. He said that one could extrapolate back from March 2011 and say that prior to that time there was a high probability that the lesion was metastatic and would have spread to other organs the closer one got to March 2011.

7. [134]

   The experts agreed, with a slight qualification by Professor Coventry, that since the histopathological evidence in March 2011 indicated that the melanoma was locally advanced with nodal involvement and that systemic metastatic disease was detected three months later, it was likely that the melanoma was in fact Stage 4 in March 2011. Professor Coventry’s qualification was only that it was known at 29 March 2011 that Stage 4 melanoma was not evident and that the CT scan performed on 7 April documented no evidence of metastatic disease, but he said it was possible that Stage 4 disease existed at the same time as the lymph node involvement diagnosed on 29 March 2011.

8. [135]

   It should be noted in this regard that the experts agreed during the concurrent evidence that the answers which appear to questions 35 and 36 in the joint report, suggesting that it was highly likely that metastasis had occurred by 2 September 2010, were not answers to those questions but rather a submission that someone had made. The answers to questions 35 and 36 were the answers to questions 25 and 26 respectively as noted.

9. [136]

   The matter was not taken much further in the concurrent evidence given before me. Professor Coventry pointed to what appeared to be the rapid growth of the lesion in the last weeks before the diagnosis of melanoma and he pointed particularly to the lateral growth as measured by Dr Hiddins as well as what was seen on its excision. There was in any event disagreement from Professor William McCarthy about the usefulness of lateral growth with Professor William McCarthy maintaining that Breslow thickness was the appropriate measurement criterion. The further evidence of Professor Coventry, whilst suggesting that the melanoma may only have been present for a shorter period of time before March 2011 and certainly not growing as rapidly, did not throw any further light on when metastasis may have taken place.

10. [137]

    Even allowing for the difference of opinion noted at [130] and [131] (which concerned only whether melanoma was present by September 2009) the experts could not say when metastatic disease was first present. The Plaintiff had the onus of establishing causation but she has not discharged that onus.

Quantum

1. [138]

   Although I have found liability and causation in favour of the Defendant I should make an assessment of the damages that would otherwise have been awarded to the Plaintiff in the event that my earlier determinations are held to be an error. The assumption that I need to make for this purpose is that when the deceased first consulted the Defendant on 3 September 2009 there was a melanoma present on his foot and the melanoma had not at that time metastasized.

2. [139]

   The following matters were uncontentious. The deceased was born on 20 October 1962. He was aged 46, almost 47, when he first saw the Defendant.

3. [140]

   He left school at the end of year ten and completed a butcher’s apprenticeship. He worked as a butcher until 1990. In that year he commenced in full time employment as a driver with Barnes Business Group driving small trucks delivering white goods around the Central Coast. He remained in that employment for about eight years. From 1998 until 2003 he worked for two companies driving buses and coaches.

4. [141]

   In 2003 he commenced driving fuel tankers for Westoil Petroleum and subsequently with Reliance Petroleum.

5. [142]

   On 31 March 2005 the Plaintiff and the deceased were married.

6. [143]

   The deceased went on sick leave in March 2011 using up all of his sick leave and holiday pay. He thereafter did not return to work. He died on 23 May 2012.

7. [144]

   In the statement the deceased made for the purposes of the evidence taken on commission before his death he said that he was earning approximately $1,300 net per week with Reliance Petroleum. However, his 2011 tax return and assessment discloses a net income for that tax year of $1,114 per week. That was a substantial increase on his net income for the two prior years as disclosed in his tax assessments of $892 and $876 respectively.

8. [145]

   A statement from the Depot Logistics Manager of Reliance Petroleum dated 10 February 2012 said that Reliance Petroleum had just signed an agreement to fuel tanker drivers approximately $70,000 per annum for a forty hour base week. He said drivers did anywhere from 50 to 60 hours per week which was paid as overtime on the base salary. He said that a current comparable employee at the Newcastle Depot of Reliance Petroleum earned between $70,000 and $80,000 per annum on a forty hour base week.

9. [146]

   The deceased’s tax return for the year ended 30 June 2010 shows a gross wage of $75,824 including allowances. Tax was withheld of $14,619. When work expenses were deducted his taxable income was $58,433. Tax payable on that income was $11,167 plus Medicare levy of $876.49. His net income for the year was $46,390 or $892 per week. The difference between that figure and what the Plaintiff claims in her schedule is that the Plaintiff has failed to subtract the work expenses from the gross income to calculate the appropriate taxable and, therefore, net income.

10. [147]

    The position for the 2011 tax year is a taxable income of $75,161. Tax was $16,098 with Medicare levy at $1,127.41. His net income was $57,936 or $1,114 per week. The Plaintiff submitted that the 2010 tax year should be regarded as the most reliable because the deceased was on sick leave from March 2011. I agree that the 2010 year should be regarded as the base year. It would not be unreasonable to adjust the earnings for that year by the CPI for subsequent years. His wage loss is, therefore, $892 per week adjusted by the CPI for subsequent years.

11. [148]

    The Plaintiff originally claimed an amount of $104,984.79 including refunds to Medicare and to HCF. The Defendant submitted that no distinction had been made between expenses which would have been incurred in any event for the biopsy and the excision of the melanoma had it been treated appropriately in September 2009.

12. [149]

    Thereafter, I was provided with a revised schedule totalling $97,825.44 without objection from the Defendant (exhibit H). I was also provided with Medicare and HCF amounts paid in relation to the excision of the melanoma. The charge for those totalled $7,816.60. I was also provided with charges for unrelated Medicare items being the treatment of his veins by Dr Chirgwin. The charges for that treatment totalled $2,649.25 with Medicare having paid $1,429.05. The total of the Medicare benefit of $2,877 should be deducted as should the $6,158.70 being the HCF benefit. The Plaintiff is therefore entitled on behalf of the estate to out of pocket expenses totalling $88,789.74.

13. [150]

    The amount claimed for loss of wages to the estate is $91,312. That is claimed for the period 11 March 2011 to 23 May 2012. The difficulty with that claim is that the deceased’s tax returns indicate that he was paid sick leave to the end of the 2011 tax year, a matter which the Plaintiff appears to accept in her schedule. The estate should be entitled to loss of wages for the period 1 July 2011 to 23 May 2012, a period of approximately 47 weeks. Applying a CPI increase of 3% for the 2011 tax year produces a net weekly wage of $919 and applying 2.5% for the 2012 tax year produces a net weekly wage of $942. The loss for 47 weeks is $44,274. Lost superannuation at 12% is $5,313.

14. [151]

    The Plaintiff as executor is entitled to loss of wages and superannuation totalling $49,587.

15. [152]

    The Plaintiff claims past gratuitous care at $52,150.35. This is claimed on the basis of 23.5 hours per week from 11 March 2011 to 9 November 2011 at $27.50 per week totalling $22,618.75, and on a fulltime basis of 40 hours per week from 9 November 2011 to 23 May 2012 at $1,054.70 per week totalling $29,531.60.

16. [153]

    The Plaintiff originally relied on reports by Dr John Obeid, a consultant physician and geriatrician and from the Lighthouse Health Group in relation to the cost of gratuitous services and what would be required. Dr Obeid prepared two reports dated 27 December 2011 and 26 January 2012. The report from the Lighthouse Health Group was dated 4 January 2012.

17. [154]

    The Defendant objected to these reports on the basis that they contained estimates. Senior Counsel for the Plaintiff accepted that, since the deceased had died by the time of the trial before me, what was required was actual expenditure rather than estimates or prophecies of expenditure. Accordingly, with the Plaintiff’s agreement, I ruled that I would not have regard to those reports.

18. [155]

    The Plaintiff’s evidence was that from April 2011 she began to provide care for the deceased which included showering him, washing and dressing his left foot, putting clothes on and monitoring his medications. She estimated that she provided an average of three hours per day helping him and performing the outdoor tasks that he had performed when he was well including such things as mowing the lawn, washing the cars, gardening and pool maintenance. That position obtained until November 2011. From November 2011 until his death in May 2012, apart from the periods of time when he was hospitalised, the Plaintiff said that she cared for the deceased at home as a nurse would care for him. She spent more than six hours a day, more than 40 hours per week assisting him with bathing and dressing, preparing special meals, driving him to medical appointments and dispensing medication to him.

19. [156]

    Although this evidence means that the Plaintiff satisfies the thresholds in s 15 Civil Liability Act there is no evidence of the cost of such attendant care services. Where the figures claimed derive from is not indicated. The only figures of any sort that I have are figures for nursing care by qualified nurses contained in the report from Lighthouse Health Group Pty Ltd. The Plaintiff’s claim in respect of this head of damages fails.

20. [157]

    The claim here is for past and future loss of financial dependency, past and future loss of domestic services, and funeral and associated expenses.

21. [158]

    The amounts claimed total $7,686.90. That sum is made up of two parts. First, the cost of the funeral from Pettigrew Family Funerals for $6,654. The second amount of $1,032.90 is an amount paid to solicitors for applying for probate.

22. [159]

    Under s 3(2) of the Compensation to Relatives Act 1897 (NSW) the reasonable expenses of the funeral or cremation of a person and the reasonable cost of a erecting a headstone or tombstone may be recovered. There is no basis for damages in respect of the cost of obtaining probate. The cost of the funeral of $6,654 should be allowed.

23. [160]

    The Plaintiff was employed as a high school teacher by the Roman Catholic Diocese of Newcastle/Maitland as well as working casually for the University of Newcastle as an academic. Her earnings exceeded the deceased’s earnings each year by a considerable margin – somewhere between 50% to 100%. The figures are set out on page 6 of the Plaintiff’s Further Amended Statement of Particulars filed 3 May 2016. The Plaintiff also said in her Statement (Exhibit B) that she was earning $130,000 gross per year from her two positions.

24. [161]

    In her statement the Plaintiff said that had the deceased recovered from his melanoma surgery she firmly believes that she would have continued to work in her positions as a teacher and a lecturer or similar until retirement at age 67 years. She said she loved teaching work and enjoyed the additional income from holding the two positions. She said she did not have children and, because the deceased also worked, her ability to work was not inhibited in any way.

25. [162]

    The Plaintiff said that the deceased never discussed early retirement with her. He was a hard-working man and she thought that he felt work was a very important part of his life.

26. [163]

    The conclusion I draw is that both the Plaintiff and the deceased would have worked full-time up to retirement and would have continued to earn at a similar rate to their earnings in 2010/2011 with appropriate increases over their working lifetime.

27. [164]

    There was little evidence about what the Plaintiff and the deceased spent their money on and how the money was used apart from the fact that the Plaintiff ran the finances jointly and each of them knew what was in which account (I took that to be a reference to the fact that between the two of them there was more than one account).

28. [165]

    The Plaintiff did not return to school to teach from the commencement of 2012. She stayed home to look after the deceased until he died. After his death she sold their house in June 2012 and moved to Taree where three of her sisters live. In 2014 the Plaintiff obtained employment as a teacher in Taree at St Clare’s High School. Her annual gross income is now about $90,000 per year.

29. [166]

    In November 2013 she commenced a friendship with her present partner. That friendship appears to have developed into a relationship during 2014. They commenced living together in March or April 2015. Her present partner is a veterinary surgeon although he has his own health issues having been diagnosed with a recurrence of tongue cancer that had previously been treated with surgery about 14 years earlier. As a result of that cancer he has nerve damage in his left shoulder and arm with some physical restrictions. Those restrictions interfere with his ability to work with all animals in the veterinary practice. However, he works as a partner with two others full-time in that practice. The Plaintiff says that she does not know how much money he earns.

30. [167]

    The financial arrangements between them are that the Plaintiff lives in her partner’s house and the Plaintiff used the money from the sale of the property she owned with the deceased to renovate the partner’s house. The Plaintiff pays the rates, the water rates, the electricity and the contents insurance. Her partner pays all of the groceries as well as the interest and principal on the loan they have on the property of $130,000 reduced from $150,000. In addition, the partner pays the cost of the phone and internet. They share the costs of holidays and entertainment.

31. [168]

    In Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 Clarke JA (with whom Meagher JA and Handley JA agreed) said in respect of a similar situation where the only question was the extent of the wife’s dependency when she also worked:

32. [169]

    In my opinion, given the significant disparity between the earnings of the Plaintiff and the deceased the extent of her dependency was 25% of the deceased’s earnings.

33. [170]

    The CPI increases and the resulting net weekly wage together with 25% of that wage are shown below:

34. [171]

    The Plaintiff has provided relatively scant details about the financial relationship she has with her new partner. She gives no evidence about his earnings. Whilst it is known what the Plaintiff earns and the fact that the expenses she and her new partner have appear to be divided between them the lack of evidence adduced by the Plaintiff means that it is difficult to make a comparison between the Plaintiff’s position with the deceased and the position with her present partner. Since the Plaintiff has not led the evidence it can only be assumed, on the basis of a Jones v Dunkel inference, that the evidence would not have assisted her. In all the circumstances, I consider that the Plaintiff fails to show, therefore, that she is any worse position than she was in with the deceased. The only difference of significance is the disparity in their ages. However, a similar disparity existed between the Plaintiff and the deceased.

35. [172]

    My assessment is that by the time of the trial before me the Plaintiff was in a committed relationship with her new partner, albeit they are not married. Perhaps a little arbitrarily but in the Plaintiff’s favour, I consider her financial dependency on the deceased ceased at 30 June 2016.

36. [173]

    As far as the future is concerned, I would award an amount by way of cushion of $50,000 for the contingency that her present partner might cease working earlier than the deceased would have ceased working by reason of the new partner’s cancer.

37. [174]

    Senior Counsel for the Defendant submitted following Nguyen v Nguyen (1990) 169 CLR 245 that damages were not available for loss of domestic services by reason of ss 11 and 15 of the Civil Liability Act 2002 (NSW). Those sections provide:

38. [175]

    It may be noted that whilst the definition of personal injury damages includes damages that relate to the death of a person the definition of injury does not include death.

39. [176]

    What the Plaintiff was claiming was damages for gratuitous attendant care services as defined in s 15(1). Such services included services of a domestic nature by virtue of sub-s (1)(a). However, sub-s (2) excluded damages arising from the death of a person because paragraphs (b) and (c) related the need for the services to “injury” which did not include death. If it was intended that gratuitous attendant care services damages could be awarded in compensation to relatives action reference would need to have been made in sub-s (2) to death in addition to injury.

40. [177]

    Counsel for the Plaintiff submitted that s 15 had nothing to say about damages in a compensation to relatives claim. Because s 15 does not talk about personal injury damages the section cannot be considered to relate to damages payable upon death by reason of the definition in s 11. Counsel submitted further that in a compensation to relatives claim a claimant is not seeking damages for services that have been or are to be provided to another person after the commission of the tort. They are simply making a claim for services in the nature of material benefits.

41. [178]

    In my opinion, the Defendant’s submissions should be accepted. Section 11A makes clear that Pt 2 of the Act (which includes s 15) applies to and in respect of an award of personal injury damages, which damages include damages in respect of death. The High Court held in Nguyen v Nguyen, at least for children, that services of a domestic nature could be claimed in a compensation to relatives action. Brennan J said (at 249)

42. [179]

    This head of damages is governed by s 15. However, sub-s (2) has the effect of excluding it because that sub-section defines the limited circumstances in which damages for gratuitous attendant care services can be provided. Those circumstances do not include a claim where the provider of the services has died.

Nervous shock claim

1. [180]

   The Plaintiff in her statement claims to have suffered from the following difficulties as a result of the deceased’s illness and death:

2. [181]

   The Plaintiff does not claim to suffer from all of those matters at the present time. The Plaintiff is now taking only Escitalopram (Lexapro), an antidepressant, and she said that she considers her depression to be managed 100% by the medication. She had previously been taking both Mirtazapine for depression and Temazepam for sleep but she has ceased both of those drugs.

3. [182]

   The Plaintiff saw Associate Professor Caroline Quadrio in March 2014 and subsequently spoke to her in May 2014. Dr Quadrio diagnosed the Plaintiff as suffering from Chronic Post-Traumatic Stress Disorder and Chronic Major Depressive Disorder. By the time the Plaintiff saw Dr Quadrio she was working at a school in Taree and enjoying her new position. She was in a reasonably good state but she contacted Dr Quadrio in May 2014 to report a deterioration in her condition with a return of such things as nightmares and traumatic images, inability to leave the house and difficulty with work and relationships. At the time the Plaintiff saw Dr Quadrio it does not appear that she had formed a relationship with her present partner although they were friends at that time.

4. [183]

   Dr Quadrio thought that she was fit to continue fulltime work but noted that there was a significant risk of a further relapse.

5. [184]

   The Plaintiff saw Dr Angelo Virgona for the Defendant on 9 October 2014. The history Dr Virgona took was similar to that of Professor Quadrio. His opinion was, however, that the Plaintiff was rendered vulnerable to the development of a psychiatric disorder due to her obsessive compulsive personality style. He was not convinced that she suffered from Chronic Depressive Disorder requiring indefinite antidepressant medication. He said those with obsessive compulsive traits are particularly vulnerable to developing anxiety and depressive symptoms when they suffer experiences beyond their control including emotional states. Dr Virgona did not think that her reaction to her husband’s death was consistent with PTSD but was best understood as a severe prolonged bereavement reaction in a person with obsessive compulsive personality traits. He accepted that she would require indefinite antidepressant medication because of her pre-existing personality vulnerability with propensity to anxiety. She might require brief therapy top-ups for two to three sessions at a time over the following year whilst dealing with residual medico-legal process.

6. [185]

   The Plaintiff had suffered from prior psychiatric problems as she acknowledged. She said that with all of her sisters she had a history of endogenous depression for which she had sought medical treatment since she was a young woman. These problems first came to a head in 1996 and 1997. She married her first husband in 1996 but he was unfaithful and she separated in 1997. When she thereafter moved to Brisbane she entered into a short term relationship but her partner was abusive and violent towards her. The police were involved after he assaulted her. He had also borrowed money in false names and because of the debts the Plaintiff was forced into bankruptcy. Her assets were frozen and she attempted suicide by overdose.

7. [186]

   She returned to live with her family in Taree in 1998 and she consulted a psychiatrist in Taree who prescribed Lexapro which she has been taking since that time. She said that by the time she met the deceased her depressive illness was well under control with the medication.

8. [187]

   Neither of the psychiatrists was called to give evidence before me. Neither had provided an updated report since 2014, a matter of some significance because of the new relationship which the Plaintiff had formed.

9. [188]

   Doing the best I can from reading the two reports, and from hearing from the Plaintiff in the witness box, I prefer Professor Quadrio’s diagnosis of Post-Traumatic Stress Disorder and a Major Depressive Disorder. I accept that the events surrounding the deceased’s death occurred on top of a longstanding depression problem that the Plaintiff had. What that indicates to me is that she was already a vulnerable person, but a tortfeasor must take a victim as the tortfeasor finds the victim.

10. [189]

    Whilst I consider that there has been a significant recovery for the Plaintiff, the Plaintiff gave evidence in her statement of a relapse in March 2016 where she felt emotionally overwhelmed and was having trouble sleeping and coping with stress. She took several Temazepam tablets and consumed half a bottle of wine. Her sister took her to Manning Base Hospital. The Plaintiff said that although she was not suicidal she was simply unable to cope. It must also be remembered that the Plaintiff’s present partner also has suffered from cancer. There has been one occurrence already and there must be a risk of a further recurrence. For a person with the Plaintiff’s vulnerabilities that may result in a further relapse, principally brought about by what she endured with the deceased’s illness and death.

11. [190]

    I consider in all the circumstances that she should be regarded as 25% of the worst case. That entitles her to damages for non-economic loss of $38,500.

12. [191]

    As far as the Plaintiff’s economic loss arising from her psychiatric condition is concerned the position is a little unclear. In her statement (exhibit B) the Plaintiff said that towards the end of the 2011 school year she decided that she would not return to work during 2012 to spend as much time as possible with the deceased. She did not return to work until the 2013 school year. Elsewhere in the same statement she said that during the 2012 financial year she took substantial periods of time off for which she was not paid and that led to a reduction of income. She said that was also the case during the 2013 financial year. From 2014 she has worked as a teacher at St Clare’s High School in Taree.

13. [192]

    Her tax returns do not appear to be consistent with having taken the 2012 school year off. What those tax returns disclose is a small downturn in income for the 2012 financial year and then a considerable drop to the level of her income that commences from the 2013 financial year. That seems chiefly to be attributable to her having resigned from her position as a part-time employee at Newcastle University.

14. [193]

    The tax returns disclose the following:

15. [194]

    The reduction in earnings for the 2012 tax year cannot be attributable to the Plaintiff’s nervous shock. Her evidence was that she took time off to care for the deceased. The reduction in income due to nervous shock arises from the need she had to move back to Taree with two consequences. The first was not to be working at Newcastle University. The second was that her teaching role at St Clare’s High School was without the responsibilities she had at St Francis Xavier College and that led to a reduction in her income.

16. [195]

    I take as the benchmark her net wage for the 2011 tax year of $93,159.

17. [196]

    Her past wage loss is as follows:

18. [197]

    The total past wage loss is $92,035.

19. [198]

    I do not consider that any continuing lower income can be attributable to the Plaintiff’s nervous shock. For one reason or another she has made an election to move to Tamworth where she has formed a new relationship. Professor Quadrio thought in the middle of 2014 that the Plaintiff was fit for fulltime work. I consider that the Plaintiff is capable of returning to the employment that she had prior to the deceased’s illness and death.

Conclusion

1. [199]

   I make the following orders:

   1. (1)

      Judgment for the Defendant;

   2. (2)

      The Plaintiff is to pay the Defendant’s costs.