100 This approach was entirely appropriate, but the trial Judge should also have applied the same approach to the plaintiff 's evidence. The plaintiff's subjective honesty is not in question, but his reliability is. He was giving evidence about events 19 years earlier, he was vitally interested, and Dr Bedville was dead. The allegations did not appear in 1980, 1989, 1990 or 1992 when other allegations were made by the plaintiff, or on his instructions. They did not clearly appear anywhere in writing until 4 years after Dr Bedville's death.
101 The decisive factor in my judgment is that the allegations were contrary to a multiplicity of entries made in contemporary hospital records by a number of independent health professionals with no interest in suppressing the truth or recording falsehoods. The allegations are also contrary to the probabilities. Why would Dr Bedville's attitude discourage the plaintiff from complaining of pain to the nursing staff and the resident medical officers? Why would they ignore his complaints? Why would his pain not be obvious to staff assisting him while he was learning to use crutches? How could he have been discharged while suffering continuing pain? Why would he not have changed doctors after his discharge? Some of these questions could have been, but were not, put to the plaintiff in cross-examination, but they are all relevant when considering the probabilities.
31 In the upshot my finding in this regard is identical to Handley JA's observations. I find that the inherent unreliability of the evidence of the plaintiff and the witnesses I have nominated in relation to his relevant complaints of pain causes their evidence in this regard to be totally outweighed in a probative sense by the notations in the hospital records. I so find, as I have indicated, for the same reasons as those advanced by Handley JA in the passages I have quoted. However, I stress again that this finding casts no aspersion on the honesty of the plaintiff or his witnesses. My finding as to the unreliability of their testimony is based on the fading of recollection due to the passage of time, not on improper motivation.
32 The second problem created by the passage of time is the loss of X-rays taken of the plaintiff at the Tamworth Hospital.
33 The only expert witness called in the proceedings who had actually viewed the X-rays taken while the plaintiff was being treated was a Dr Davies. Dr Davies at the relevant time was practising as an orthopaedic surgeon in Tamworth. In a report dated 18 May 1982 Dr Davies said:-
'The following report has been compiled with access to all this man's Hospital records and X-rays.
This man's date of birth is - 16. 8. 1951.
He was tackled at football on 16. 4. 78, suffering an injury to the left leg. The records at Casualty Department, Tamworth Base Hospital, report that he was unable to weight bear at all, on the leg. There was large haematoma on the mid shin of the left leg.
An X-ray of the leg was performed and this revealed a mid shaft fracture of the left tibia.
He was seen by Dr B. Bedville, in Casualty Department.
A longleg plaster was applied as, to quote the Casualty Department noted: "Minimal angulation and less that 1cm displacement". 100mg Pethidine was given.
I have seen the X-rays in question. The fracture is mid shaft in what would be regarded as being satisfactory position. It is relatively transverse - a slight obliquity - with the lower fragment displaced laterally by 8mm. The overall alignment was good; shortening was negligible. The fibula was intact.
The leg was elevated in bed and plaster observations were carried out.
Post-reduction X-rays were taken, with the leg in plaster, the next day, i.e. 17. 4. 78, these showed that the overall alignment was still reasonable although not quite as good as previously, as the leg had acquired a slight posterior bow.
Over the next four (4) days, he had a fever, was feeling hot and perspiring. His temperature was 37.8º C. Pulse 100, regular.
He had increased nasal discharge and watery eyes, scattered inspiratory and expiratory rhonchi and his pharynx revealed red, large tonsils.
It was felt that he was suffering from a 'flu like illness. He was treated with Aspirin and this resolved in about three days.
On 20th April,1978, the nursing notes read as follows: "Seen by Dr Bedville. To commence no-weight bearing crutch walking tomorrow. Form written (physiotherapy form). Up, sitting in chair." The physiotherapy form reveals that the Physiotherapist (Miss Taylor) treated him non-weight bearing, with crutches. On 1st May, she states that he was able to manage stairs.
When he started getting up he was aware of a grating feeling whenever he moved the leg. This was reported to the R.M.O. on 22nd April, 1978, and he advised that the patient be kept in bed until the following Monday when he would be seen by Dr Bedville. Dr Bedville, himself, says: "Complains of pain on movement. For change of plaster, under G.A., on 24. 4. 78." This was performed and a longleg plaster again applied and the subsequent X-rays showed a satisfactory alignment, a slight anterior bow and posterior displacement of the lower fragment site, by 7mm, and, in the AP view, again, satisfactory alignment and lateral displacement of the lower fragment by 6mm. The overall position would be, I felt, satisfactory.
Subsequently, he was X-rayed on one (1) further occasion prior to discharge and there was no change in the position of the fracture.
Clinically, his progress appeared to be uncomplicated, apart from the small pressure area on the right buttock. He became more comfortable, was apparently sleeping well, was safe on his crutches (still non-weight bearing).
He was discharged on 2nd May, 1978, to be followed up by the V.M.O.
The next X-rays that are available to me are those dated 12th July, 1978. (I do not know if some were taken in the intervening time, at the private Radiologists.) These show very scanty callus and no real attempt at union of the fracture. In the AP view the alignment is satisfactory and in the lateral view the posterior bow seems to be a little more prominent.
X-rays taken on 7th September, 1978, show, if anything, somewhat more callus and, again, the overall position remains satisfactory.
It was about this time that Dr Bedville sought Dr Clery's opinion because apparently, clinically, a non union was present.'
34 Dr Davies when called in the trial did not resile from those observations. On the contrary, he confirmed them.
35 The importance of Dr Davies' observations as to what the X-rays demonstrated arises when considering an allegation made by the plaintiff that at the time when he passed from Dr Bedville's care he had a rotation of some 40 degrees in his left leg. It was the plaintiff's case that this degree of rotation happened because of movement of bone in his leg when it was encased in the plaster which should not have happened had the plaster cast been properly applied. This movement, so it was argued, was a probable reason why union had not occurred at the time his care had passed to Dr Clery.
36 Dr Davies' view that the X-rays taken on 7 September 1978 show that the bone fragments were in a satisfactory position is cogent evidence that movement of the type referred to by Dr Seaton in both his written views and evidence at the first trial is not supported by contemporaneous, objective, diagnostic evidence.
37 Furthermore, the view expressed by Dr Claffey (and accepted by Dr Peters in her evidence) that the plaintiff had 40-45º of malrotation which was corrected to an extent by Dr Clery refixing the plate inserted on 3rd October by the procedure he carried out on 13 October is not supported by the evidence. In fact Dr Clery did not refix the plate because of malrotation. He did so (and his report is not subject to direct challenge) to correct a varus deformity. A varus deformity as Dr Ellis explained it (and his evidence was not challenged in this regard) is deformity which displaces the foot towards the midline of the leg. It gives rise to conditions such as knock knees.
38 I should add that a similar mistake in describing why the procedure on 13th October 1978 was carried out was made by the late Dr Douglas Sturrock in his report of 18 June 1987:
'The only criticism I can see is that Dr Clery operated and fixed the lower fragment in too much external rotation and a further operation was necessary to try and improve this. However, the fact that the lower part of his leg was fixed in external rotation is not the cause of the disaster which occurred to this man's leg. Poor position of the foot and ankle is the result of prolonged immobilisation in treatment carried out in an attempt to establish union of the tibia and it would appear to me that it may well have been advisable for this man to have had an amputation at an earlier stage than, in fact, he had it carried out.'
39 Indeed, Dr Sturrock ascribes any excessive external rotation to the first procedure carried out by Dr Clery and not to the conservative treatment given by Dr Bedville. However, he expresses no concern as to any rotation he observed when he saw the plaintiff - which was prior to the plaintiff's leg being amputated.
40 The only mention of rotation in the hospital records is Dr Bedville's note of 15 June 1978 which I have mentioned above. It is significant that when Dr Bedville observed the rotation then present he forthwith decided that the plaster be changed. In other words this notation is evidence that Dr Bedville was aware of problems which could occur from malrotation and when he observed that phenomenon he took immediate steps to correct it.
41 The plaintiff also deposed that the had, during the time he was under Dr Bedville's care, plaster sores on the dorsum of the left foot near the ankle joint. He received support from his lay witnesses in this aspect of his case, particularly from his wife.
42 However, there is no mention of such a condition in the hospital notes. I accept Dr Ellis' evidence that it is highly unlikely that Dr Clery would have performed any surgical procedures upon the plaintiff in the presence of such sores.
43 For the same reasons I applied in determining that the plaintiff had failed to establish his complaints of continuous pain while under Dr Bedville's care, I find that he has failed to establish that he suffered plaster sores while under that practitioner's care. I am further fortified in so finding by Dr Ellis' view as to the unlikelihood of Dr Clery operating on the plaintiff in the presence of these sores.
44 Equally, I am not persuaded on a balance of probabilities (the test I have applied in relation to all findings I have made) that the plasters applied were not flexed at the knee. First, I accept the evidence of Ms Krippner that the practice of the physiotherapy department at Tamworth Hospital was when applying long leg plasters at the relevant time was to put the knee into a 5 to 15 degree flexion.
45 Second, my finding is that the plaintiff has not established that he was either in continuous pain during the relevant period or that he developed plaster sores. These findings are consistent with the plaster being properly applied.
46 Finally, the plaintiff's submission that I should draw a Jones v Dunkel inference in this case because the defendants failed to call a Ms Taylor, physiotherapist, is not one which I accept.
47 While the evidence proves that Ms Taylor was employed as a physiotherapist at the hospital, there is nothing in the notes to suggest that she actually changed the plaintiff's plaster at any time. It is true that while the hospital records indicate that Ms Taylor mobilised the plaintiff in April and May 1978, they are silent as to which physiotherapist changed the plaster. Ms Krippner deposed that at the relevant time there were five physiotherapists engaged at the hospital. Any one of them could have plastered the plaintiff's leg. In these circumstances Jones v Dunkel does not assist the plaintiff.
48 For the above reasons I am of the view that the plaintiff has failed to establish that a straight rather than a flexed plaster cast was applied to him at any time when he was under Dr Bedville's care.
49 It was also part of the plaintiff's case that Dr Bedville should have referred him to an orthopaedic surgeon at an earlier stage. Indeed, as I understand Dr Peter's evidence, surgery of the type ultimately performed By Dr Clery should have been the first treatment of choice. Dr Bornstein, while not going that far, felt that a referral should have been made by July, having regard to the failure of the fracture to unite at that stage. Dr Seaton was of the view that a referral should have been made to an orthopaedic surgeon ab initio.
50 On the other hand Drs Ellis, Sturrock, Claffey, Holman and Davies are of the opinion that both period of and treatment afforded by Dr Bedville to the plaintiff was entirely appropriate.
51 In these circumstances the delay in referring the plaintiff cannot in my view constitute a breach of duty on Dr Bedville's part. Had the plaintiff been able to establish that Dr Clery's surgery was impaired as a result of the time which had passed between the time of injury and referral, I would have concluded otherwise. However, there is no evidence which I accept that Dr Clery's surgical intervention was adversely affected in any way by time taken, and the effects of, Dr Bedville's care of the plaintiff. The plaintiff has thus failed to make good this allegation.
52 Indeed, there is no evidence that Dr Clery's surgery was deficient in any way. The wound infection which ultimately led to the plaintiff's amputation, on the evidence, arose at time of removal of the plate on 31 July 1979. There is no acceptable evidence that this infection arose as a result of a breach of duty by Dr Bedville, Dr Clery or any person for whom the defendant hospital is vicariously liable. To quote Dr Bornstein:
'… After the protracted period of time which had elapsed since the injury incident in this case, there would have been no choice but to operate on the tibia to freshen the bone ends, apply internal fixation, and a bone graft. Indeed, this is what was carried out in this case. Thereafter the patient developed significant complications but I believe that the treatment that was offered to him from this point on was indeed correct. I will not discuss that aspect of his presentation further.'
53 My findings involve a rejection of the views expressed by Dr Seaton in both his written evidence and his evidence at the first trial. I do so because my findings of fact do not support the history upon which he relied in coming to the findings he came to.
54 On the other hand I found the evidence given by Drs Davies, Holman and Ellis to be compelling which view is reflected in my findings. I reject the submission made by Mr Hall QC that Dr Ellis was biased. In my view he gave his oral evidence in a fair and thoughtful manner which reflected the same approach which he adopted in his written reports. I accept Dr Ellis' evidence in its entirety and prefer his views to any expert opinion to the contrary.
55 It follows that I find that the plaintiff has failed to establish that either of the defendants were in breach of the duty of care they owed to the plaintiff.
56 There will thus be a judgment for the defendants. I shall defer dealing with the question of costs until after the delivery of these reasons.
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