The process of fact finding miscarried
39With respect to the primary judge, who heard and determined in urgent circumstances what she candidly described as "an exceptionally difficult case", that reasoning cannot be permitted to stand, whichever way it is to be read. It is not that there was a failure to make requisite findings of fact, but rather a failure in the process of fact finding as disclosed by the reasons: see Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]-[130] (Hayne J). It is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] and MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134]. As explained by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
40This litigation was conducted in such a way that the persons who are entitled to feel a sense of grievance if the cases presented by the parties were not adequately addressed are not merely the litigants, but also Drs Wall and Hiddins. Although both were witnesses, and not parties, her Honour's findings amount, implicitly, to findings of serious breaches of duty by both practitioners. No less serious to Drs Wall and Hiddins is her Honour's rejection of their claimed actual recollection of Mr Coote's consultations with them. As Hoeben J said, with the agreement of Allsop P and Beazley JA, in Hawkesbury District Health Service Ltd v Chaker [2010] NSWCA 320 at [56]:
"Implicit in his Honour's complete rejection of Dr Tompsett's evidence was the proposition that the diagram in the respondent's clinical notes with its markings was not genuine, or had been placed there subsequently by Dr Tompsett. The same inference is implicit in relation to his Honour's rejection of the evidence concerning the booklet. These are very serious findings about any witness, here a medical professional. Before findings of that kind could be made, it was incumbent upon his Honour to set out clearly and logically the factual basis for them which inevitably would have involved a proper analysis of the evidence. This was not done. Accordingly, there was no proper factual basis for his Honour's acceptance of Dr Malouf's opinion."
41I turn to how the process of fact finding as disclosed by the reasons miscarried.
42First, there was her Honour's dismissal of the evidence of Drs Wall and Hiddins as unreliable. Although both doctors claimed to recall the consultations distinctly, and both squarely denied there was the black spot to which Mr and Mrs Coote deposed, in crucial respects their evidence was entirely unlike. Dr Wall had seen Mr Coote once, almost 18 months earlier, when Dr Kelly was not available. His notes were exiguous. And he gave evidence, which it was open to the primary judge to treat as unreliable, that he recollected a reasonably extensive conversation with Mr Coote, following which Mr Coote declined to follow his advice. On the other hand, Dr Hiddins was giving evidence about the first time she had ever seen a melanoma, presenting in a patient she saw six times in the first three months of 2011. She inspected his foot with a large magnifying glass with a fluorescent light around it. She made relatively detailed notes, which corroborate her recollection of a lesion which changed dramatically in that period.
43The difference between those doctors' testimonial evidence was reflected in their cross-examination. It was squarely put that Dr Wall was lying when he said he had an actual recollection of the single occasion he had treated Mr Coote. The challenge to Dr Hiddins' recollection was, understandably, much milder.
44Those differences needed to be addressed in order to engage with the "real strength" of the evidence presented by the defendant; cf Earthline at 321. It was not possible properly to discount Dr Hiddins' evidence in the same way and in the same sentence as Dr Wall's evidence.
45Further, in dismissing the testimonial evidence of those doctors as unreliable, her Honour relied on the evidence of Drs Lynch and Jammal. Putting to one side the admissibility and weight of that evidence (as to which I do not express a view), that evidence, even taken at its highest, was not relevant to the recollection of Dr Hiddins. Their evidence was premised upon an inability to recall details of a lesion where a practitioner was unassisted by properly made notes. That opinion was inapplicable to Dr Hiddins' recollection.
46Her Honour's findings amount, albeit implicitly, to a wholesale rejection of the testimonial evidence of Dr Wall and Dr Hiddins. It meant not only that Dr Wall and Dr Hiddins missed something which was obvious, but also either that they were lying when they said they had an actual recollection of the consultations, or at best were mistaken in their understanding of what an actual recollection (as opposed to a reconstruction) involves. It was open, having regard to the cross-examination, for her Honour to make such findings, but only if the reasoning process supporting it were exposed. One unpleasant aspect of curial adjudication is that on occasion, such findings need to be made. But they should be made expressly, not implicitly, and attended by a transparent and comprehensible reasoning process based on findings of fact reflective of the gravity of the court's conclusion.
47Secondly, it was necessary to have regard to the doctors' notes. Although it is true that the later notes say little about what presented to Dr Kelly on 3 September 2009, the case advanced by the plaintiff was that there was always a visible black spot. The notes bore upon that central issue directly. Although there was occasion for recording in the notes the fact that the lesion was pigmented or black, if indeed it was, there was no occasion for recording in the doctors' notes the fact that the lesion was flesh-coloured.
48The notes reflected three trained practitioners' observations, each of whom diagnosed and treated a plantar wart, and were aware of the significance of a pigmented lesion. Doctors Kelly and Wall maintained that they would have made a record of the fact that it was pigmented if they had seen it. It was possible (although the evidence suggested this was unlikely) that the consequence of the cryotherapy administered at the previous session would discolour the skin two weeks later, which would undermine Dr Kelly's observations on the second, third and fourth consultations, but that could not explain the final consultation with Dr Kelly on 20 May 2010, seven months since Mr Coote's previous visit, nor the consultation with Dr Wall, nor the first consultation with Dr Hiddins.
49In short, the reasons did not properly engage at all with the remarkable fact that every contemporaneous record of Mr Coote's left foot was inconsistent with the testimonial evidence of Mrs Coote which the primary judge accepted. Once again, it was open to the primary judge to accept Mrs Coote's evidence in this respect, but only if first her Honour explained why those notes (particularly those made on 20 May 2010 by Dr Kelly, on 2 September 2010 by Dr Wall, and in January 2011 by Dr Hiddins) were to be discounted.
50Thirdly, the finding made by the primary judge that there was a plantar wart was inconsistent with the evidence of Mrs Coote, who maintained that the "piece of black tar" looked "nothing like a plantar wart". This does not merely involve an issue which detracts from the reliability of Mrs Coote's evidence. Instead, it goes to the heart of the case on breach. The last two sentences at [103] - the primary judge's conclusion on breach - cannot be reconciled with each other. The finding made by the primary judge of the unlikely but possible combination of a plantar wart and melanoma was, on the expert evidence, "difficult to diagnose". That describes something which is altogether different from the black spot which Mrs Coote said she recalled seeing. There was nothing to suggest any difficulty of diagnosing melanoma if Mr Coote's foot were as Mrs Coote had described and as her Honour found. Her Honour's reasons do not engage with, let alone resolve, the inconsistency.
51Memory is all too fallible. McHugh J referred to "the everyday experience of the courts that honest witnesses are frequently in error about the details of events": M v The Queen [1994] HCA 63; 181 CLR 487 at 534. The process of conscious and subconscious reconstruction of what was actually said in a conversation, to which McLelland CJ in Eq referred in Watson v Foxman (1995) 49 NSWLR 315 at 319, is familiar. Although elaborate submissions were made about this at trial, and noted by her Honour noted at [79], her Honour's reasons do not explain why she came to the view that Mrs Coote's evidence was not unreliable. As her Honour noted, Mr and Mrs Coote were shown to have the same imperfect recollection of dates as most witnesses. There is no necessary reason for their visual recollection to be any less imperfect. In a case such as this where even the photographs of the final stages of Mr Coote's disease are distressing, and must have been much more so to Mrs Coote, the possible unreliability of her honest recollection needed to be engaged with in light of the balance of the evidence.
52The effect of those matters is that the finding of breach cannot stand. However, it is not possible for this Court to find that there was no breach. Although I have been critical of aspects of the reasoning on breach above, it was open on the evidence to find that Mr Coote presented on 3 September 2009 in accordance with Mrs Coote's recollection. Her Honour was plainly impressed by Mrs Coote as a witness, and enjoyed advantages which this Court does not. The determination of the issue of breach was, to use the language of Tobias AJA, "a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript": Vagg v McPhee [2013] NSWCA 29 at [85]. This appeal is quite clearly not a case like Fox v Percy where the relevant facts are incontrovertibly established; it is the opposite of such a case.