DURANT v TAMWORTH BASE HOSPITAL & ANOR

JUDGMENT 1 HIS HONOUR: These proceedings involve a claim for personal injuries involving allegations of medical negligence against a hospital and the estate of a medical practitioner. The case has had a chequered history. 2 This is the second trial in the proceedings. The first trial which was held before Murray AJ resulted in the plaintiff obtaining a judgment in the sum of $382,046 plus costs on 19 December 1997. On Tuesday, 8 August 2000 the Court of Appeal ordered that the judgment for the plaintiff against both defendants be set aside and that a new trial be held. The present trial was the product of those orders. 3 The court's task in assessing the evidence in the matter is bedevilled by a number of features. First is the length of time which has passed since the events which give rise to the claim. The plaintiff was injured on 16 April 1978. It was that injury (and I shall turn to this in greater detail later) which gave rise to the treatment which in turn gives rise to the matter now before the court. Second the second defendant, Dr Bedville, died on 28 February 1991. His place in the proceedings is taken by his estate. 4 What I propose to do is to first review facts in the matter which are not in dispute. I shall then turn to factual matters which are in dispute and deal with them accordingly. 5 I turn then to those matters of fact which are not the subject of dispute. As I have already said the plaintiff was injured on 16 April 1978. He suffered a fractured left tibia while playing in a football match. He was taken to the defendant, the Tamworth Base Hospital, where he came under the care of the second defendant, Dr Bedville. Dr Bedville was a general practitioner holding the basic degrees of MBBS. However, he was a member of a panel maintained by the hospital which constituted those who held honorary appointments at the hospital in orthopaedic surgery. 6 Dr Bedville decided to treat the plaintiff conservatively. To that end he on 16 April 1978 applied a long leg plaster to the plaintiff's fractured left leg. The plaintiff remained in hospital as an inpatient and was reviewed between 16 April 1978 and 26 April 1978 on five occasions by Dr Bedville. 7 On 26 April 1978 the original plaster was removed by Dr Bedville and a second plaster applied by him. This procedure was undergone under general anaesthetic. 8 While an X-ray taken on 17 April 1978 indicated slight lateral angulation at the fracture site subsequent X-rays taken prior to the application of the second plaster indicated that the position of the fracture was good. The second of those latter X-rays was taken on the day when the second plaster was applied, namely 26 April. 9 On 2 May 1978 the plaintiff was discharged from hospital. Between 26 April and that date the plaintiff was reviewed on four occasions by Dr Bedville. 10 Following his discharge the plaintiff was reviewed by Dr Bedville on 19 May 1978. Dr Bedville's notes referred to the plaster cast as being satisfactory. However, the doctor noted that the cast should be changed on 14 June. 11 On 14 June the plaintiff's plaster was in fact changed at the Tamworth Base Hospital. This procedure was carried out in the Physiotherapy Department and Dr Bedville was not in attendance. 12 On the next day, 15 June 1978, Dr Bedville saw the plaintiff again. On this occasion he recommended that the plaster be changed once more because he noted rotation of the plaintiff's left foot with inversion. Again on that day the plaintiff's plaster cast was changed at the Physiotherapy Department of the defendant hospital. Once more Dr Bedville was not in attendance when this procedure was carried out. 13 On 19 June 1978 again Dr Bedville saw the plaintiff. On this occasion Dr Bedville's note indicate that the plaintiff was complaining of pressure at the fracture site. The doctor noted his intention to replace the plaster cast if the pressure continued. He noted that he would review the plaintiff in three weeks time and to carry out a further X-ray to his leg. 14 Indeed, Dr Bedville again reviewed the plaintiff on 10 July 1978. He noted that there was at that time no evidence of good union and that formation of callus was but slight. He noted that he would review the plaintiff in eight weeks time to consider the necessity for surgical intervention. 15 Two days later on 12 July the plaster was removed and replaced at the hospital. The records do not reveal if Dr Bedville was present on that occasion. However, an X-ray report indicated very little evidence of any firm bony union. On the next day Dr Bedville saw the plaintiff again. On this occasion Dr Bedville noted that the plaster cast which had been replaced on the day before seemed to be satisfactory. 16 Then on 7 September 1978 Dr Bedville again saw the plaintiff. His notes reveal that the union was incomplete and there had been in fact no improvement noted by way of X-rays since 12 July 1978 in relation to union. This came from his reading of X-rays taken on 7 September 1978. 17 On the next day Dr Bedville discussed the question of surgery with a Dr Fisher whom I gather is an orthopaedic surgeon. Dr Fisher saw the plaintiff on that day and suggested that the plaintiff's leg be examined clinically after the plaster cast had been removed. On 14 September 1978 Dr Bedville again examined the plaintiff. He noted that the fracture was not clinically firm and he then decided to refer the plaintiff to a Dr Clery, orthopaedic surgeon, to consider open reduction. 18 The plaintiff was seen by Dr Clery on 20 September 1978. Dr Clery determined that surgery was required and on 3 October 1978 he carried out a procedure of open reduction and internal fixation upon the plaintiff. On 4 October an X-ray report noted some varus deformity in the plaintiff's leg. Consequently, on 13 October 1978 Dr Clery carried out a further procedure on the plaintiff's leg, namely a revision of the internal fixation. 19 Thereafter, X-rays noted first on 16 October 1978 that the fragments in the plaintiff's leg were in good position and subsequent X-rays noted that union was taking place. Finally on 14 July 1979 it was determined that the fracture of the plaintiff's tibia had united. 20 On 31 July 1979 Dr Clery removed the plate from the plaintiff's tibia which had been put in place during the surgical procedures carried out by Dr Clery. Dr Clery noted a discharge coming from the wound in the plaintiff's leg but hoped it would settle. 21 Unfortunately, it did not. Thereafter the wound in the plaintiff's leg deteriorated and despite various procedures being undertaken including skin grafting and regrafting the plaintiff's leg deteriorated to such an extent that amputation was considered the only feasible procedure. Finally on 2 March 1983 Dr Marsden, orthopaedic surgeon, amputated the plaintiff's left leg below the knee. 22 The plaintiff's case may be summarised as follows. 23 Dr Bedville neglected to properly supervise the plaintiff's treatment in that:-

ii. straight - they should have been flexed at the knee.

b. He disregarded the plaintiff's complaints of continuing and constant pain both when the plaintiff was an inpatient at the hospital and as an outpatient when seen either at the hospital or at Dr Bedville's rooms. It was alleged that had Dr Bedville properly taken into account the plaintiff's complaints of pain he would have realised that the plaster casts had been imperfectly applied.

c. That as a consequence of Dr Bedville's improper supervision of the plaintiff's treatment union of his fractured leg did not occur as it should have. This led to the need for surgical intervention. It was as a consequence of complications of that surgery that the plaintiff's left leg was ultimately amputated by Dr Marsden. 24 The case against the hospital was based on:-

a. its vicarious liability for Dr Bedville's action and

b. the alleged improper fitting of plaster casts by physiotherapists on behalf of the hospital. In this regard it was also alleged that Dr Bedville was in breach of his duty of care to the plaintiff by failing to supervise all applications of plaster casts by the hospital physiotherapists. 25 Furthermore, it was alleged that Dr Bedville should not have undertaken the plaintiff's treatment at all. It was strongly suggested by two of the plaintiff's medical witnesses - Drs Peters and Seaton - that he should have referred the plaintiff to a qualified orthopaedic surgeon if not ab initio then shortly after the plaintiff's admission to the hospital. 26 The defendants' response to these allegations is that there is no suggestion in the hospital records or in a letter written by Dr Bedville to the Medical Defence Union on 5 June 1980 of continuing complaints of pain by the plaintiff. 27 I should observe that as one would fully expect there were recorded complaints of pain by the plaintiff on his admission on 16 April 1978 and shortly thereafter, but the records indicated that these complaints ceased. 28 I return to the defendants' case. It was put that the treatment afforded to the plaintiff by Dr Bedville was entirely appropriate. The fact that union failed to occur while the plaintiff was being treated conservatively was not unusual. In turn the time at which the plaintiff was referred to Dr Clery could not be categorised as belated. In fact the surgery was successful in that union was achieved. The latter development of infection when the plate inserted by Dr Clery was removed was not the result of negligence but misfortune. This in short was the response of both defendants. 29 As I have mentioned the task of making factual findings in this matter is bedevilled by the time which has passed between the time of the plaintiff's injury and the hearing of this trial - over 24 years. 30 The first, and indeed the most obvious, of these difficulties is the ability of witnesses to reliably recollect events which happened in 1978. I have no doubt that all the lay witnesses called in the plaintiff's case, including the plaintiff himself, did their best to give truthful evidence. However, they all made concessions relating to the difficulty of recalling matters which happened so long ago. In his written submissions senior counsel for the plaintiff claimed that the evidence of the plaintiff and the lay witnesses called on his behalf was not challenged as to veracity in cross examination. It is true that senior counsel for the defendant did not suggest in cross-examination that the plaintiff or any of his lay witnesses were lying. However, all made concessions going directly to the reliability of their testimony. It was further submitted on the plaintiff's behalf that the testimony given by his wife, Mrs Messner, and Mr Howie overcame the observation made by Handley JA in the Court of Appeal (see: Tamworth Base Hospital & Anor v Durant [2000] NSWCA 209) that the plaintiff's complaints of pain were uncorroborated. What Handley JA said was this:

'84 The trial Judge found that the first plaster became loose when the haematoma at the fracture site subsided, accepting the plaintiff 's evidence to this effect, and finding corroboration in the development of the pressure sores (red 100). He made no express finding that the later plasters were also loose until the end of his reasons on liability when he said (101): "I also accept that it is probable that union did not occur in the plaintiff 's fracture because of looseness of the plasters, which in my view were not properly applied and adequately supervised".

85 In my judgment the trial Judge's findings, based on the uncorroborated oral evidence of the plaintiff that he continued to be in continual pain after the application of the second plaster, and continued to experience grating at the fracture site, cannot be supported. These complaints were not recorded in documentary form prior to the plaintiff 's examination by Dr Seaton on 29 March 1995 when they were part of his history to that doctor (2/119). The references to the plaintiff 's complaints of pain in hospital in the solicitors' letter to Dr Peters of 27 September 1989 (3/166) are contradictory but conclude at the bottom of that page with the statement "after the change [of plaster] there was no real further complaint of pain between 26 April ... and the date of Mr Durant's discharge".

86 The hospital records contain frequent references to complaints of pain by the plaintiff between 16 and 26 April 1978, and to the regular provision of painkilling medication, in particular pethidine, during this period. See 2/59-62 (progress notes), 63-4 (drug recording sheets), 65-6 (prescription sheets), 77-84 (nursing records), 89-90 (resuscitation charts), and 92-3 (plaster observation charts). However there is only one record of a later complaint of pain, and no record of the administration of any further painkilling medication after 26 April when a new plaster was applied (2/83). The nursing records from 27 April, until the plaintiff 's discharge from hospital on 2 May, contain notes which, with one exception, show that he was no longer in pain. Relevant entries include:

27/4 Slept well plaster observations stable Satisfactory Satisfactory nil complaints 28/4 Slept well Patient has been relatively comfortable this morning ... up on crutches Satisfactory To be up on crutches over weekend Patient is in high spirits but is complaining of pain in leg has been up on crutches Slept well 29/4 Patient has had a comfortable morning Patient has had satisfactory evening ambulating well on crutches Slept well 30/4 Patient has had comfortable morning nil complaints of pain Satisfactory evening ambulating 1/5 Slept well Up on crutches well today - coped with stairs well Home in two or three more days Satisfactory evening ambulating well nil complaints 2/5 Slept well Satisfactory - for discharge

87 The physiotherapy records (2/76) state before 1/5 "balance not very good yet" and on 1/5 "walking well with crutches. Able to manage stairs". The contrast with the plaintiff 's experience when mobilisation was previously attempted is stark.

88 The statement of claim filed on 12 June 1980 pleaded the unsuccessful attempt to mobilise the plaintiff on 19 April (the correct date was 21 or 22 April) and the falling sensation, grating sound and "feeling" (pain) at the fracture site. It did not plead that the plaintiff experienced grating and pain at the fracture site after the second plaster was applied on 26 April. Par 8 contained a general allegation of "severe pain and restriction of movement", but this was not related to the fracture site or to any particular period. The plaintiff was in pain for years after his initial surgery until his amputation. The particulars of negligence included failure to heed the plaintiff 's complaints "on or about 19 April that the leg had fallen and had a grating feeling and sound". There was no allegation that the defendants failed to heed the plaintiff 's complaints of pain or grating at the fracture site after the change of plaster on 26 April, or that he should not have been discharged on 2 May.

89 Dr Bedville's letter to the Medical Defence Union of 5 June 1980 referred to the plaintiff 's complaint and discomfort on 22 April when mobilisation was attempted, but does not mention any later complaint of pain (2/104). Dr Peters' report of 6 June 1990 refers to the pain the plaintiff experienced as a result of the attempt at mobilisation on 22 April, but did not refer to any other complaint of pain or painful episode or grating sensation at the fracture site while he remained in Dr Bedville's care (2/116). She did not claim that Dr Bedville was negligent in failing to act on the plaintiff 's complaints of severe pain or experience of grating after 26 April. As previously mentioned the instructions in the solicitors' letter of 27 September 1989 on this point are ambiguous, but suggest that complaints of pain ceased after 26 April.

90 It is not clear whether mobilisation was attempted on 21 or 22 April. The progress notes record an instruction for mobilisation on 21 April, but the report of the result is on the 22nd (2/62). The nursing notes for the 21st state "to be ambulant tt on crutches", (2/80), but the following morning he was reported as having slept well (81), and later that day there is an extensive record of complaints of pain, referrals to doctors, and the administration of painkillers. Dr Bedville stated that mobilisation was attempted on the 22nd.

91 On 10 October 1990 the plaintiff 's solicitors supplied the particulars requested by the solicitors for Dr Bedville more than 10 years before. They contained an allegation that the plaintiff experienced a sudden and sharp pain and a grating sensation and sound when mobilisation was attempted on or about 19 April but no allegation of continuing severe pain or grating at the fracture site after that date. There was an allegation that "on or before 26.4.78 and certainly before discharge from hospital on 3.5.78 the condition of the plaintiff was such that Dr Bedville should have arranged for an orthopaedic surgeon to attend the plaintiff immediately" (4/340-1). There was no allegation that he was negligent because he ignored or failed to take appropriate action in response to complaints of pain or grating after 26 April.

92 On 7 July 1992 the plaintiff provided a 5 page statement in letter form to his solicitors. He claimed that on 21 April he experienced "a sharp continuous stabbing" in his leg when mobilisation was attempted (2/126). He continued (127): "During the next few days, hospital staff administered pills and injections to help kerb the large amount of pain I was in". 93 He mentioned his fresh plaster on 26 April and that he then learned to use crutches and was discharged on 3 May. He said that after his discharge he saw Dr Bedville every 4-6 weeks. "On one such visit I told him about the large amount of pain I had around my foot area" (emphasis supplied) (127), but he made no other reference to pain. He also made no reference to grating at the fracture site, or any complaint about any of these other matters to Dr Bedville. His failure to mention pain or grating at the fracture site is significant in view of his mention of pain around his foot.

94 The first clearly documented complaint of continuing pain at the fracture site after 26 April 1978 appears in Dr Seaton's report of 27 April 1995. This included a reference to the pain the plaintiff experienced when mobilisation was attempted on 22 April and continued (2/119): "As a result only one week later another plaster had to be applied. It is apparent that the second plaster was no more successful than the first because the patient was still in considerable pain and there was painful grating at the fracture site ... it is also known that the man was still in considerable pain after the second plaster was applied on 26 April because he was, at that time, taking large amounts of narcotic drugs for the pain ... it would seem reasonable to have the leg checked out by a Specialist Orthopaedic Surgeon at the request of the nursing staff before the patient was discharged in pain with a loose long leg plaster".

95 Dr Seaton had received the hospital notes but no other documents (black 77, 126). He was not given copies of the earlier reports obtained by the plaintiff 's solicitors. He relied heavily on the history given to him by the plaintiff (88-9, 121), he had "very little else to go on" (121), "I did get all my information from the ... plaintiff" (135). He concluded that the second plaster had not been properly applied because of the history of pain and grating at the fracture site he received from the plaintiff (122), and because the plaintiff said that "the pain was always there" (129).

96 The plaintiff 's wife, whom he married in August 1978, was asked about the plaintiff 's consumption of painkillers in the period between 2 May and early October when he went into hospital again, but said she could not answer that question because "I didn't watch when he took tablets and when he didn't" (116).

97 The plaintiff gave oral evidence that he continued to experience a lot of pain after the second plaster was applied on 25 April (sic), he was not free from pain (black 8), and following his discharge he had pain all the time in his leg, excruciating pain (10), and he was never pain free in the period prior to seeing Dr Clery in September (13). The trial Judge accepted the plaintiff 's evidence that he did not complain "as much as previous" because Dr Bedville told him to stop whingeing (8).

98 The plaintiff 's evidence that he did not complain as much about his pain because of Dr Bedville's attitude is inconsistent with the hospital records which contain many such complaints up to 26 April and only one thereafter. The records reveal that the plaintiff 's complaints were dealt with sympathetically and that he received pethidine injections on many occasions. There is no reason for thinking that the nursing staff suddenly became unsympathetic on 27 April and refused him painkilling medication despite his complaints of pain. The hospital records are not just silent on this question. They contain many statements by different nurses after 26 April that the plaintiff had slept well, was in a satisfactory condition, and had no complaints of pain. He was successfully mobilised on crutches over a number of days and then discharged without any further complaint of pain being recorded. The plaintiff agreed in cross-examination that every time he complained of pain in the hospital he was given help (60), and that the second plaster was firmer and more comfortable (68).

99 The approach of the trial Judge to Dr Bedville's statement to the Medical Defence Union of 5 June 1980 was as follows (red 91): "It has to be viewed with caution as it is a letter to the doctor's insurer, and was written in the context where allegations of negligence were being made against the late doctor, and naturally, he would be defensive of his handling of the case. It has to be remembered that because of his death, the doctor is not available for counsel to expand upon the contents of the letter nor is he available for cross-examination".

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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