Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges v Dr Zaffar Hussain; Chantelle Sheree Bridges v Dr Zaffar Hussain

In about May 2013, Mia-Angel Bridges Cole (Mia-Angel) was diagnosed with Acute Lymphoblastic Leukaemia (ALL). Prior to that diagnosis, Mia-Angel’s mother, Chantelle Sheree Bridges (Chantelle) had taken her to a number of medical consultations. Those consultations included, importantly, consultations with Dr Zaffar Hussain (the defendant) on 15 March 2013 and 28 March 2013.

What occurred at each of those two consultations with the defendant is a matter of considerable controversy. There are, in respect of each consultation, a series of factual issues as to (inter alia):

In the third further amended statement of claim which was filed in Court on 12 May 2021, the following is pleaded in respect of the first consultation with the defendant on 15 March 2013: [1]

The third further amended statement of claim pleads the following in relation to the second consultation with the defendant on 28 March 2013: [2]

In circumstances where there is no issue that0 the defendant owed Mia-Angel a duty of care, the third further amended statement of claim pleads the breach of that duty as follows: [3]

The defendant denies that he breached the duty of care that he accepts he owed to Mia-Angel. In that regard he relies principally upon the defence in s 5O of the Civil Liability Act 2002 (NSW) (the CLA) which is discussed further below. The defendant also pleads that Chantelle was contributorily negligent.

Chantelle has brought separate proceedings against the defendant on her own behalf. Obviously, Chantelle cannot succeed in those proceedings unless Mia-Angel succeeds in her proceedings.

As I have already noted, and as I have discussed in further detail below, there are a series of factual issues as to what took place at the two consultations with the defendant on 15 March 2013 and 28 March 2013. There are also factual issues as to what occurred on other occasions. Those issues give rise to a further issue, namely the credit of Chantelle. It is appropriate that this be addressed at the outset, as its determination has a direct effect on my findings of fact, and thus on the determination of the question of the defendant’s liability.

It is firstly relevant to note that by the time Chantelle gave evidence before me in the hearing of these proceedings, a period of approximately 8 years had elapsed since the relevant events occurred. In Longman v The Queen [4] McHugh J made the following observations regarding human recollection of events occurring a long time ago:

Whilst His Honour's comments were made in the context of considering evidence given by victims of alleged sexual assault, they are of universal application. In particular, in the context of the present case, his Honour's observations as to the effect of emotion and prejudice on the capacity of a person to remember events after a long period, assumes particular significance in the assessment of Chantelle’s credit.

It is also relevant to note that much of the hearing of these proceedings took place during the period of the Covid-19 pandemic. As a consequence, the vast majority of Chantelle’s evidence was given via Audio Visual Link. However, I should make it clear that the absence of Chantelle’s physical presence in Court did not present any impediment whatsoever to my ability to assess her credit. This was, in part, due to what might be described as Chantelle’s generally “overt” demeanour when giving evidence.

In his final submissions, counsel for Mia-Angel expressly conceded that aspects of Chantelle’s presentation were (as he put it) “challenging”. [5] However, he submitted that this did not establish that her evidence was untruthful. He emphasised [6] that it had not been put to Chantelle that she had deliberately lied, or had otherwise deliberately misled the Court, when giving evidence. Counsel’s ultimate submission was that despite the extensive challenge to Chantelle’s credit which was mounted in cross-examination, I should nevertheless conclude that her credit “survived”, to the point where I should accept her account of what took place on the various occasions in question. [7]

For the reasons that follow, including the reasons I have expressed when addressing the facts, I am unable to accept that submission.

I accept that it was not put to Chantelle in cross-examination that she was deliberately telling untruths, or that she was deliberately misleading the Court. However, in assessing the credit of a witness, the concept of honesty is quite separate and distinct from the concept of reliability. A conclusion that a witness was unreliable in the evidence that he or she gave does not require a finding that he or she was deliberately untruthful, or had deliberately misled (or attempted to mislead) the Court. [8] Evidence of a witness may be unreliable for many reasons including, for example, by the passage of time which has elapsed since the relevant events occurred, and the effect of that passage of time on the memory of the witness in question.

I observed Chantelle carefully during the entirety of her evidence, which extended over some days. In assessing Chantelle, and in assessing the reliability of her evidence, I have made full allowance for the fact that the events surrounding Mia-Angel’s ultimate diagnosis must have been extremely traumatic. I also accept that in such circumstances, Chantelle found it difficult to give evidence about those events. However, all of these matters have clearly produced emotion in Chantelle of the kind to which McHugh J referred in Longman. I am satisfied that this, along with other factors discussed below, have impacted upon Chantelle’s capacity to recall events and give reliable evidence. Such matters have all contributed to my reaching a firm conclusion that Chantelle was a most unreliable witness.

To begin with, and at a level of generality, Chantelle’s demeanour when giving evidence was, almost invariably, combative, aggressive, argumentative and agitated. There were some occasions on which she raised her voice, almost to the point of shouting her responses to questions. There were instances where she argued with, and talked over, both the cross-examiner and me. On other occasions she displayed a marked tendency to adopt the role of an advocate, rather than a witness. She often answered questions in terms which were largely, if not entirely, vague and/or non-responsive.

There are a plethora of instances in Chantelle’s evidence where some or all of these factors were demonstrated. They include the following passage of cross-examination: [9]

It is noteworthy that in that passage of cross-examination, Chantelle appeared to take issue with the suggestion that she had only taken Mia-Angel to the defendant on two occasions, in circumstances where that is the very case that she has pleaded.

By way of further example, and in respect of the consultation with the defendant on 28 March 2013, Chantelle gave the following evidence: [10]

Chantelle’s generally unimpressive demeanour was also evident from the following exchange in respect of that same consultation: [11]

Chantelle’s adoption of the role of an advocate rather than a witness is evident from the following passage of cross-examination: [12]

Her attempted advocacy is also evident from the following passage: [13]

As I have discussed further below, one issue in these proceedings arises from a telephone conversation which is said by the defendant to have taken place with Chantelle at some time after the consultation of 28 March 2013. In respect of that conversation, Chantelle was asked: [14]

There were innumerable other instances [15] in which Chantelle approached her evidence in the same unsatisfactory manner as that which is demonstrated in the extracts of the transcript which I have set out above. All of those instances have contributed to my conclusion that Chantelle was an unreliable witness. I should also make it clear that in reaching that conclusion, I have taken into account various contemporaneous records which are in evidence. I have referred to some of those records when addressing the facts below. In each instance, they fortify the conclusion I have reached.

Further, and leaving aside Chantelle’s actual evidence (and her demeanour when giving it), there is an additional matter which further supports my conclusion regarding her credit, and which arose in this way.

The defendant commenced giving oral evidence in the proceedings on 5 May 2021. His evidence continued into the following day, 6 May 2021. In the course of the proceedings on that day, counsel for the defendant made an application that the evidence be adjourned until 10 May so that the defendant could observe aspects of the religious festival of Ramadan. That application was not opposed and was granted, although it was agreed that the proceedings would continue before me on 7 May for the purposes of dealing with other matters.

When the proceedings came before me on 7 May counsel for the defendant said the following: [16]

On 13 May, at the conclusion of his cross-examination, the defendant gave the following further evidence: [17]

It is clear that whilst the defendant was still being cross-examined, Chantelle approached him in the precincts of the Court. The defendant’s evidence as to what then occurred is entirely unchallenged. In approaching the defendant, Chantelle acted not only offensively, but aggressively. That aggression was verbal, in the sense of her remonstrating with the defendant regarding his religious beliefs. It was also physical, in the sense of attempting to enter the room in which the defendant was waiting. It is apparent that such attempt may well have succeeded had she not been restrained.

In my view, Chantelle’s conduct on this occasion was reflective of a person who is clearly emotionally affected by the events which are the subject of these proceedings, and who harbours significant prejudice and ill-feeling towards the defendant. Her conduct towards the defendant constituted a further (but different) manifestation of the aggressive and combative demeanour that she consistently displayed when giving evidence. The impropriety of such conduct would be self-evident to any right-thinking member of the community. It reflects adversely on Chantelle’s credit.

For all of these reasons, and also having regard to other specific aspects of her evidence which are discussed further below, I regard Chantelle as a most unreliable witness. In the absence of independent corroboration, I do not accept her evidence as to any fact in issue.

Before coming to address the facts, there is an additional discrete matter which must be addressed.

At an early stage of the hearing, I dealt with various objections taken by counsel for the defendant to passages of medical reports which were sought to be relied upon in Mia-Angel's case. Passages of such reports were excluded.

On the resumption of the hearing on 25 May 2020 (which was a Monday) counsel for Mia-Angel informed me that during the course of the preceding weekend, his instructing solicitor had obtained additional reports from those experts whose evidence had been excluded. This resulted in an application being brought on behalf of Mia-Angel for leave to rely on the additional reports. The transcript will reflect that when that application was heard there were lengthy submissions made on behalf of both parties.

The application which was made engaged the provisions of r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) is in the following terms:

Clearly, the additional reports which were sought to be tendered were obtained over a weekend in the course of the hearing. They had not been served in accordance with r 31.2(1). That engaged the requirement for leave in sub-rule (4). The reports were not “updates”, and accordingly sub-rule (4)(b) had no application. That left the onus on counsel for Mia-Angel to establish that there were exceptional circumstances which warranted the grant of leave.

Such exceptional circumstances were not made out. It was evident that those acting for Mia-Angel determined, upon parts of the original reports being excluded, that they would obtain additional reports in an attempt to adduce that excluded evidence. Quite apart from any other consideration, such a course had the effect of an “ambush”, with those acting for the defendant being faced with having to consider the contents of additional reports after the hearing had commenced, in circumstances where they had not previously seen them and thus had not had the opportunity to consider their contents. A grant of leave to allow the additional reports to be relied upon would also have been contrary to the considerations set out in ss 56 – 58 of the Civil Procedure Act 2005 (NSW).

Mia-Angel was born on 21 January 2011. She was therefore a little over 2 years of age in February 2013.

In her evidentiary statement, [18] Chantelle said that on the morning of 11 February 2013, she had woken up and noticed that Mia-Angel appeared pale and lethargic, swollen in her face and colourless in her cheeks. She said she had a sore abdomen which looked slightly swollen, and which felt firm to the touch. She said that Mia-Angel gestured to her stomach during the morning and said “boo boo", which Chantelle understood to mean that Mia-Angel was experiencing pain and discomfort in the stomach/abdomen area. These circumstances resulted in Chantelle taking Mia-Angel to Primary Health Care Medical and Dental Centre at Bankstown (the Medical Centre). The first available medical practitioner on that day was Dr Anwarul Islam. It is noted that Dr Islam was initially named as a defendant, but the proceedings against him were resolved between the parties.

Chantelle's evidence [19] was that during the consultation with Dr Islam she said words to the effect:

This history omitted any reference to the vast majority of the symptoms to which Chantelle had referred in that part of her evidentiary statement to which I previously referred.

Chantelle agreed that Dr Islam examined Mia-Angel at the time of the consultation, [20] the clinical note of which reads as follows: [21]

Notwithstanding the contents of that note, Chantelle had no recollection of being:

According to Chantelle, Dr Islam had said to her words to the effect: [23]

Two observations may be made at this point.

Firstly, those words attributed by Chantelle to Dr Islam are not entirely consistent with the reference in the clinical note to “R/V in 3/7”, which I infer means “review in 3 days”. I am not satisfied that such words (i.e. those attributed to Dr Islam by Chantelle) were said by Dr Islam.

Secondly, Chantelle's failure to remember a number of fundamental details of this consultation is reflective of the fact that, credit issues aside, she is a poor historian, whose memory of the relevant events has been adversely affected by the passage of time which has elapsed since they occurred. Those circumstances have further contributed to the erosion of Chantelle’s reliability as a witness.

It is evident from the contents of the clinical note that Dr Islam considered it appropriate that Mia-Angel return for further review in 3 days. I am satisfied that this was communicated by Dr Islam to Chantelle at the time.

There is no evidence that Chantelle returned with Mia-Angel for any further review in 3 days, and I am satisfied that she did not. I infer from a combination of those matters that Mia-Angel’s symptoms settled following the consultation with Dr Islam, to the point where they were of no concern to Chantelle.

In her evidentiary statement, Chantelle said the following in relation to the period subsequent to the consultation with Dr Islam: [24]

Chantelle’s attendance at the Medical Centre on 15 March was some 32 days after the consultation with Dr Islam, in circumstances where, as I have found, Dr Islam had recommended a review of Mia-Angel in 3 days. This fortifies my conclusion that any symptoms that Mia-Angel had exhibited at the time of the consultation with Dr Islam had resolved. Although Chantelle's evidence was that Mia-Angel’s symptoms “came and went”, [25] she accepted, as a general proposition, if there were no apparent signs of illness she would not take Mia-Angel to see a doctor. [26] The fact is that following the consultation with Dr Islam she did not take Mia-Angel to see a doctor for over a month. That further supports my conclusion that Mia-Angel’s symptoms had resolved following the consultation with Dr Islam.

Chantelle said in her oral evidence that when she attended the Medical Centre on 15 March she did so with the intention of consulting Dr Islam because it “seemed like he was … professional doctor”. [27] However, Dr Islam was not available, as a consequence of which Chantelle saw the defendant.

Notwithstanding Chantelle’s evidence regarding Mia-Angel’s condition in the days leading up to, and on the morning of, 15 March, her evidence as to the primary reason for her attendance with Mia-Angel upon the defendant on that day was not entirely consistent. Chantelle's initial evidence suggested that she had attended for the primary purpose of confirming her pregnancy: [28]

However, she later said: [29]

The evidence continued: [30]

Chantelle then said: [31]

These variations in Chantelle's evidence serve as a further indication of her general unreliability, and the fact that she is a poor historian. Moreover, her suggestion that “it would’ve been a bit later that [she] found out she was pregnant” is clearly wrong in light of the defendant’s clinical note which includes: [32]

The defendant's clinical note of the consultation insofar as it related to Mia-Angel records a date and time of Friday 15 March 2013 at 8:48:48pm. [33] When it was put to Chantelle that she had attended upon the defendant on the evening of 15 March 2013 she responded: [34]

I am satisfied that Chantelle’s evidence in that respect was also clearly wrong. It is completely at odds with the objective and contemporaneous evidence in the clinical note.

Chantelle gave the following account of the consultation with the defendant insofar as it related to Mia-Angel: [35]

On her own account, Chantelle did not give the defendant a history of any of the matters from which she asserted (in her evidentiary statement) that Mia-Angel was suffering. [36] She made no reference to colour draining from Mia-Angel's face, her hair being dry and colourless, her inability to participate in her daily routine, her weight gain, and the fact that she had become “puffier” in the face. Importantly, there is no evidence to suggest Mia-Angel was suffering from ulcers or a rash at the time of the first consultation with the defendant, nor is there evidence that any history was provided to the defendant that Mia-Angel was suffering from abdominal swelling, in circumstances where that fact is specifically pleaded.

The defendant set out his recollection of the consultation in his evidentiary statement as follows: [37]

The clinical note of the consultation is in the following terms: [38]

The history recorded in the clinical note similarly omitted any reference to those conditions from which Chantelle maintained in her evidentiary statement that Mia-Angel was suffering in the period leading up to the consultation.

As I have noted, Chantelle also asserted in her evidentiary statement that the defendant variously queried whether Mia-Angel had “picked up something” as a result of playing in the backyard, being at day care, or being in proximity to members of her family. That is entirely contrary to her oral evidence that the defendant asked no questions in the course of the consultation at all. [39] That serves as a further specific example of her unreliability as a witness. The defendant was adamant when cross-examined that he asked questions of Chantelle about Mia-Angel’s condition. [40] I accept that to have been the case, and I am satisfied that the history provided was in the terms given by the defendant in his evidence.

Chantelle also asserted that the defendant did not examine Mia-Angel at the time of the consultation. I reject that evidence. It is entirely at odds with the notation “o/e” in the clinical note which is obviously an abbreviation for “on examination”. That is objective evidence consistent with an examination having taken place which, in turn, is consistent with the defendant’s evidence (which I accept) that he: [41]

In all of these circumstances, I am satisfied that the defendant's account of the consultation as set out in his evidence, and clinical note, are accurate and are to be preferred to the evidence of Chantelle. In particular, I accept that Chantelle specifically told the defendant that Mia-Angel was not suffering from fever, diarrhoea, abdominal pain or irritability.

On 18 March 2013 Chantelle consulted the defendant in respect of a lump under her chin. [42] The clinical note does not disclose Chantelle saying anything to the defendant on that occasion about any adverse symptoms being experienced by Mia-Angel at the time. I am satisfied that she did not do so and that Mia-Angel was not exhibiting any such symptoms.

In her evidentiary statement [43] Chantelle referred to the fact that Mia-Angel's condition was “fluctuating” following the consultation with the defendant on 15 March 2015, and asserted (inter alia) that in the days following that consultation Mia-Angel had indicated to her that she had a headache. I do not accept that evidence. It was only 3 days after Mia-Angel’s first consultation with the defendant that Chantelle consulted the defendant in respect of the lump under her chin. For the reasons previously expressed, I am satisfied that the defendant had told Chantelle at the time of the consultation on 15 March that if Mia-Angel's condition did not resolve, she should bring her back in 2-3 days. Clearly, on the evidence, Chantelle did not do so. I am satisfied that this is explained by the fact that none of Mia-Angel's reported symptoms continued over that 2-3 day period. Indeed the general effect of the defendant’s evidence, which I accept, is that Chantelle was “happy” when he saw her on 18 March. [44] That observation is inconsistent with Chantelle being concerned about Mia-Angel experiencing anything in the way of ongoing symptoms.

Chantelle consulted the defendant again the following day, 19 March 2013. The clinical note of that consultation [45] makes it clear that it related solely to Chantelle's pregnancy. The evidence of the defendant, which I accept, is that Chantelle attended that consultation alone. [46] In those circumstances, and for the reasons previously expressed in the context of addressing Chantelle’s consultation with the defendant the day before, I am satisfied that Mia-Angel was not exhibiting any symptoms which caused Chantelle any concern at that time.

Chantelle consulted the defendant again on 25 March 2013. Given the contents of the clinical note of that consultation, [47] I am satisfied that it related to Chantelle's pregnancy, and was entirely unrelated to Mia-Angel. I accept the evidence of the defendant that Mia-Angel did not attend that consultation. [48] In those circumstances I am satisfied that Mia-Angel was not exhibiting any symptoms which caused Chantelle any concern at that time. It is noteworthy that this was 10 days after the first consultation with the defendant on 15 March, and the third occasion within that 10 day period in which Chantelle saw defendant and reported nothing about Mia-Angel suffering any ongoing adverse symptoms.

Chantelle attended upon the defendant at the Medical Centre on 28 March 2013. One reason for doing so was her pregnancy. [49] Another reason was the 4 month vaccination which was due to be given to her eldest daughter. [50] A third reason was Mia-Angel's condition. [51] By this time, 13 days had elapsed since Mia-Angel’s first consultation with the defendant.

In her evidentiary statement, Chantelle said the following: [52]

The clinical note of the consultation reads as follows: [53]

Having referred to that clinical note, the defendant said the following in his evidentiary statement: [54]

Aspects of Chantelle’s account of what occurred at this consultation do not withstand scrutiny.

To begin with, Chantelle's evidence in cross-examination was that the defendant did not take Mia-Angel's temperature. [55] The clinical note specifically records Mia-Angel’s temperature as 37.9. That notation is consistent only with Mia-Angel’s temperature having been taken. It is also consistent with the defendant’s evidence, which I accept. [56]

Chantelle also asserted that the defendant had no physical contact with Mia-Angel at the time of the consultation, to the point that he did not touch her at all. [57] I do not accept that evidence. It is entirely at odds with the contents of the clinical note. It also defies common sense that the defendant did not conduct a physical examination of Mia-Angel.

The history recorded in the clinical note is that of a rash on the mouth and hand and foot and I am satisfied that this was the history given and that it accorded with Mia-Angel’s presentation. Such recorded presentation is generally consistent with Chantelle's evidence of what she observed on Mia-Angel’s face on the morning of 28 March 2013. Importantly, and notwithstanding what is pleaded in the third further amended statement of claim, there is no evidence that Chantelle provided a history to the defendant on this occasion of Mia-Angel being swollen in her arms, face, legs and stomach, nor is any evidence that Mia-Angel presented in that way at the time of the consultation. Similarly, there is no evidence that Chantelle gave a history of persisting symptoms of vomiting and lethargy. I am satisfied that she did not do so. I am also satisfied that the defendant formed the view, on the basis of Mia-Angel’s presentation, that she was suffering from hand, foot and mouth disease, that a blood test would not assist in any treatment, and that he advised Chantelle accordingly. [58]

Chantelle's evidence of the circumstances in which this consultation ended was set out in her evidentiary statement as follows: [59]

In cross-examination Chantelle expanded on what allegedly took place: [60]

In cross-examination the defendant said the following in relation to this issue: [61]

Bearing in mind the findings I have already expressed regarding Chantelle’s credit, I do not accept her evidence regarding the circumstances in which the consultation on 28 March 2013 ended. In the course of observing the defendant give evidence, I formed the view that he was a careful and truthful witness. The suggestions that he labelled Chantelle a hypochondriac, and that he threatened that Mia-Angel would not be treated if she returned to the Medical Centre are, in my view, utterly fanciful. I do not accept that any of the statements attributed to the defendant by Chantelle in this respect were said, nor do I accept that the consultation ended in the way Chantelle asserted that it did.

In the original statement of claim which commenced the current proceedings, the following was pleaded: [62]

Notwithstanding that pleading, Chantelle categorically denied in her evidence that she had ever had any telephone conversation with the defendant: [63]

In his evidentiary statement, the defendant said the following in relation to this issue: [64]

The defendant also gave oral evidence in relation to this issue: [65]

He was also asked: [66]

He was then asked: [67]

Having put to the defendant that his evidence was a “possible reconstruction”, counsel then put: [68]

The statement of claim which commenced the proceedings specifically pleaded that a conversation had taken place between Chantelle, and either Dr Islam or the defendant, on about 28 April 2013. In his final submissions, counsel for Chantelle put that the pleading contained “errors” which could be explained on the basis that “the pleading was filed by the Plaintiff’s original instructing solicitors (Shine Lawyers) and it can be inferred that there would have been some time pressure to the put the pleadings on”. [69] The facts from which that inference was said to be open were not precisely articulated. In my view, there is no factual basis at all for drawing any such inference.

Counsel went on to submit that the “only way for the pleading to make sense is that the April date was a mistake and it should have been March”. [70] The difficulty with that submission is that it ignores the fact that on the basis of Chantelle’s evidence, it is not simply a matter of a mistaken date. Chantelle denies that any conversation took place with the defendant at all.

The pleading is quite specific. The obvious inference, given the relationship between a lawyer and his or her client, and the inference that I draw, is that it was drafted on the basis of Chantelle’s instructions to those acting for her at the time. Accepting that to be the case, it follows that Chantelle’s instructions were that she had a conversation with either Dr Islam or the defendant. She now denies having had a conversation with the defendant. She did not assert in her evidence, at any time, that she ever had such a conversation with Dr Islam.

It should also be noted that in the course of submissions, counsel for Chantelle put that I should find that the defendant’s “memory of [the conversation] was a “reconstruction”. [71] That was not what was ultimately put to the defendant in cross-examination. What was ultimately put was that the conversation never occurred at all. There is an important difference between these two propositions.

Chantelle’s departure from a specific pleading, which I am satisfied was advanced in accordance with her instructions, is yet a further demonstration of her unreliability as a witness. I am satisfied that the conversation did take place, in the latter part of March 2013, in the terms about which the defendant gave evidence.

It is convenient at this point to address a further submission advanced by counsel for Chantelle arising from the evidence that Chantelle and Mia-Angel travelled to Queensland in late March 2013, following the second consultation with the defendant. Counsel emphasised the evidence of observations made of Mia-Angel by other members of Chantelle’s family at or around that time, [72] and submitted that those observations were of a young child who was clearly unwell. That, in my view, does not advance the case for Mia-Angel for three principal reasons.

The first, is that those observations do not reflect Mia-Angel’s presentation at either of the consultations with the defendant. The second, is that there is no evidence that such observations were ever drawn to the defendant’s attention. The third, is that those observations are entirely at odds with the evidence I have addressed below regarding Chantelle’s attendance upon Dr Zaer on 18 April 2013 (without Mia-Angel), and the absence of any further medical consultation involving Mia-Angel until 24 April 2013.

Chantelle consulted Dr Zaer in Brisbane on 18 April 2013 for matters relating to her pregnancy. She agreed when cross-examined that she did not take Mia-Angel with her on that occasion: [73]

Chantelle’s consultation with Dr Zaer on 18 April 2013 clearly related to matters solely pertaining to herself. Mia-Angel was not present. It also occurred some 21 days after the second consultation with the defendant. I am satisfied in all of those circumstances that for the entirety of that 21 day period, Mia-Angel’s presentation was of no concern to Chantelle and, specifically, that Mia-Angel was not exhibiting any signs or symptoms which Chantelle considered warranted any medical intervention. This is confirmed by the following evidence given by Chantelle: [74]

The objective evidence establishes that in circumstances where Chantelle regarded Dr Zaer as competent, she did not take Mia-Angel to see him until 24 April 2013. The inference that I draw in those circumstances is that Mia-Angel was not exhibiting any symptoms or any concern until about 23 April, that there was nothing in Mia-Angel’s presentation that caused Chantelle any concern until that time, and that in the 27 day period between Mia-Angel’s second consultation with the defendant and her first consultation with Dr Zaer, she was generally well. Bearing in mind Chantelle’s acceptance that Dr Zaer was a competent medical practitioner, no other conclusions are reasonably open.

On 24 April 2013 Chantelle returned to see Dr Zaer, and took Mia-Angel with her. The clinical note of Dr Zaer in respect of this consultation reads as follows: [75]

The evidence of Dr Zaer in relation to this consultation included the following: [76]

This evidence is, at least in part, at odds with that of Chantelle who, notwithstanding the contents of Dr Zaer’s clinical note, said the following in cross-examination: [77]

Later in the cross-examination, Chantelle was asked: [78]

Chantelle also denied [79] that she had given a history to Dr Zaer regarding a problem with Mia-Angel’s toe, a proposition which is inconsistent with the clinical note:

Notwithstanding the fact that Chantelle asserted that a rash was present on Mia-Angel at the time of her consultation with Dr Zaer on 24 April 2013, [80] no such history is recorded in Dr Zaer’s contemporaneous note, or his evidence. Further, a number of other symptoms which Chantelle claimed to have reported to Dr Zaer are not recorded. [81] I am satisfied that the history provided by Chantelle to Dr Zaer is that reflected in the clinical note and his evidence, namely that the primary reason for Mia-Angel’s presentation was a paronychia on her toe, and that she has been unwell the previous evening.

On 26 April 2013 Mia-Angel underwent a blood test. Dr Zaer’s evidence was that he had anticipated that the blood test would have been taken on the same day as he examined Mia-Angel (i.e. 24 April), and that whilst he did not mark it as “urgent” he advised Chantelle to, in effect, make immediate arrangements for it. [82] That is again at adds with the evidence of Chantelle. [83] Clearly, the blood test was not conducted until 26 April, which is generally inconsistent with Chantelle's account of the consultation.

On 26 April 2013 a report of Mia-Angel’s ultrasound included the following: [84]

The significance of this opinion stems from the joint report of Dr Conyers and Dr Vaughan which included the following: [85]

Importantly, the time frame nominated by Dr Conyers and Dr Vaughan as to the likely onset of marrow deterioration post-dated Mia-Angel’s second consultation with the defendant. There is no evidence that the defendant was otherwise aware of any such onset, or that there was anything in Mia-Angel’s presentation on either of the two occasions on which he saw her which should have alerted him to the possibility of such onset.

Pathology results returned on 29 April 2013 demonstrated that Mia-Angel had a normal haemoglobin of 128 and an elevated platelet count of 610. [86] The significance of those results again lies in the joint report of Dr Conyers and Dr Vaughan who reported: [87]

I have already noted the time that elapsed between Mia-Angel’s second consultation with the defendant and her consultation with Dr Zaer. That supports a conclusion that she was generally well during that period. That is inconsistent with any chronic process having been present.

Dr Zaer referred Mia-Angel to the Paediatric Emergency Department of the Redcliffe Public Hospital on 29 March 2013. In his letter of referral he said: [88]

In her report of 25 May 2018, Dr Conyers noted the following in respect of Mia-Angel’s admission to Redcliffe Hospital: [89]

These recorded observations demonstrate (inter alia) that Mia-Angel, at the time of her admission to Redcliffe Hospital had:

On 5 May 2013 the defendant reviewed the pathology reports which identify the detection of Leukoerythoblastic film. He formed the view at that time that Mia-Angel likely had leukaemia. [90]

Dr Ruth Ratner provided a report at the request of the defendant on 30 June 2017. Dr Ratner’s report was admitted without objection and she was not asked to attend for cross-examination. The assumptions upon which Dr Ratner based her opinion included the following: [91]

These various assumptions accord with the factual findings I have made and which are set out in the preceding paragraphs.

In expressing her opinion based on these assumptions, Dr Ratner said (inter alia) the following: [92]

The expert evidence before me also includes a report prepared following a conclave between Associate Professor Clyne, Associate Professor Roach and Dr Ratner. The questions considered included the following: [93]

It is noted that “Scenario 1” accords with the factual conclusions that I have reached.

A further question considered by the experts was as follows:

Once again, “Scenario 1” accords with the factual findings that I have reached.

A further question considered by the experts was the following:

For the reasons I have expressed, I am satisfied that Mia-Angel returned to good health between presentations.

As I have noted, there is no issue raised by the defendant in the present case that he owed Mia-Angel a duty of care. The defendant relies principally upon a s 5O of the CLA which is in the following terms:

Once a defence under s 5O(1) of CLA is pleaded and placed in issue (as it has been in the current proceedings) the Court must determine a defendant's liability in negligence by first addressing that provision. That approach comes about because if the matters in s 5O are made out, that supplants the analysis which might otherwise be required by s 5B of the CLA. [95] In other words, s 5O supplants the common law, and the general principles of negligence set out in other provisions of the CLA that would, but for the application of s 5O, apply to the determination of the defendant's liability in negligence. [96] A defendant who seeks to rely on the provisions of s 5O bears the onus of establishing the elements of that defence. [97]

I have already set out some excerpts from the report of Dr Ratner. Her opinions included the following:

Further, as I have noted, the conclave report expresses a consensus that the defendant's treatment of Mia-Angel was in accordance with accepted practice, and otherwise entirely appropriate.

Bearing in mind the provisions of s 5O(2) there is no basis on which to conclude that any of these opinions are irrational. In these circumstances, the defence under s 5O is made out.

It follows that there must be a verdict for the defendant in each of the proceedings.

For the foregoing reasons, I make the following orders: