(1938) 60 CLR 336
Camden v McKenzie [2007] QCA 136
[2008] 1 Qd R 39
Campbell v Campbell [2015] NSWSC 784
Director-General, Department of Community Services, Re
[2013] 1 WLR 2477
New South Wales v Hunt [2014] NSWCA 47
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
Palmer v Dolman
Source
Original judgment source is linked above.
Catchwords
(1938) 60 CLR 336
Camden v McKenzie [2007] QCA 136[2008] 1 Qd R 39
Campbell v Campbell [2015] NSWSC 784
Director-General, Department of Community Services, Re[2013] 1 WLR 2477
New South Wales v Hunt [2014] NSWCA 47
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
Palmer v Dolman
Judgment (5 paragraphs)
[1]
BACKGROUND TO COMPLAINT ONE
At all material times, the practitioner practised as an osteopath at . . . and Patient A consulted with him at the practice.
From approximately December 2010 to August 2011 Patient A consulted the practitioner on approximately 10 occasions as her regular osteopath.
[2]
PARTICULARS OF COMPLAINT ONE
1. On 16 August 2011, during a professional consultation with Patient A at his practice, the practitioner carried out assessment and treatment in relation to the patient 's groin and failed to provide appropriate osteopathic services in that he
1. failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint;
2. failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint.
1. On 16 August 2011, the practitioner inappropriately placed his [finger] under the patient 's underwear and inserted his finger into Patient A's vagina for about 30 seconds which was:
1. without clinical indication or justification;
2. behaviour that amounted to inappropriate conduct of a sexual nature towards Patient A.
[3]
COMPLAINT TWO
is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficient serious nature to justify suspension or cancelation of the practitioner's registration, or
2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
[4]
PARTICULARS OF COMPLAINT TWO
1. Complaint One and the particulars thereof are repeated and relied upon individually and cumulatively.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 August 2015
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Ng
Cases Cited (23)
Findings and Consideration
Patient A and Dr Ng have given completely different accounts of critical events of the consultation.
Patient A, is a married woman and is 35 years of age. She had seen Dr Ng on 11 occasions before the consultation. She had previously found him to be "delightful, supportive, knowledgeable and wise".
Dr Ng holds degrees in science, business administration and osteopathy. He speaks five languages. His curriculum vitae states:
I am a mature and caring Professional with a passion for the promotion of health and wellness. I also bring to my practice of Osteopathy insights gained from other aspects of my professional career as well as my considerable life experiences. I also adopt a holistic, responsible and caring approach to my patients health and well-being. I am deeply committed to achieving the best outcomes for my patients and quickly gain their confidence in my ability to help them.
References attesting to Dr Ng's good character and professional conduct have been provided by peer osteopaths and patients.
The HCCC submits that there are a number of factors which would cause the Tribunal to accept Patient A's version of events. These include:
1. Dr Ng does not claim that Patient A is unreliable, or activated by malice or some other improper motive. Dr Ng submits that Patient A is simply mistaken.
2. Patient A generally gave consistent accounts of what occurred in her various statements and in oral evidence; in particular, during her lengthy and detailed cross-examination Patient A adhered to her version of events.
3. Patient A's recollection is corroborated to a significant extent by her early and numerous same-date complaints about the alleged incident to her husband, work colleague, sister-in-law and the police, and her subsequent visit to the RPAH sexual assault unit.
4. Her recollection is further supported by the fact she sought counseling about the incident on a number of occasions between November 2011 and January 2012.
5. The sensations felt by Patient A are explained by digital penetration of the vagina, not referred sensation. This is supported by the expert evidence namely:
Dr Paul, who says that it was highly improbable that strong palpation of the adductor muscle attachments in the groin would be interpreted by a woman as a finger in her vagina;
Dr Robinson, who says that "a woman could certainly, should be able to perceive that", and is consistent with medical fact and common sense";
Dr Ford, who agrees with Dr Paul.
On the other hand, Dr Ng submits that there are many factors which should cause the Tribunal to reject Patient A's evidence and to prefer his account of events. These factors include the following:
1. Dr Ng also gave consistent evidence, denying the accusation.
2. Patient A's evidence is based on suspicion or surmise as to what occurred; she did not see him insert his finger into her vagina, she guessed it was his index finger, and guessed it was 20 or 30 seconds.
3. Patient A did not include in exhibit SS, her first written account, that there was any sensation of the underwear being moved. She admitted that she was prompted by the attending police officer, and that she could not recall any physical sensation of the underwear being touched. In the circumstances, there was simply no explanation as to how Dr Ng's finger got past her underwear.
4. There was a delay in making a formal complaint.
5. No prosecution for any offence took place. This is correct, but this may be explained by the loss of the sexual assault kit.
6. Patient A deliberately left out matters from evidence that would be exculpatory of the respondent.
7. Patient A was not entirely honest in her account of what occurred, the example being that in her statement of September 2012 she said in par [11] "during the appointment in question and any previous appointment he had never explained any of the procedures to me before doing them".
8. Patient A gave three different and inconsistent versions of the consultation.
9. The sensations felt by Patient A are explained by referred sensation. This is supported by the expert evidence of Dr Paul, Dr Robinson and Dr Korda.
In particular, Dr Ng submits that it is critical to note that the medical literature and the peer opinion obtained by the HCCC supports the plausibility of the explanation for the sensations felt by Patient A being referred sensations from trigger points at the top of the thigh. In this respect Dr Ng relies on the change in opinion of Dr Paul from that in his first report that it was:
highly improbable that strong palpation of the adductor muscle attachments in the groin would be interpreted as a finger in the vagina,
to:
[the] referred sensation being felt in the vagina is possible and plausible as the literature does describe the internal sensation (mainly described as referred pain) from activating trigger points in the adductor magnus muscle or the sensation of a foreign object from neuralgia.
The critical issue for consideration is the direct allegation by Patient A that Dr Ng inserted his finger into her vagina during the course of the consultation, and Dr Ng's denial of that allegation. To consider this issue and to make appropriate findings we think it useful to set out some observations on assessing the credit of a witness, and further observations on the standard of proof required.
We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour:
1. Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
2. The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56].
3. A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
Standard of proof
The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106).
In Forster the Court of Appeal stated:
22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid).
23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2).
In Rejfek, the High Court stated:
10. . . . The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 . . .
11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714.
Findings
We consider that the appropriate course is to first make findings of fact in relation to the alleged allegations. We have set out above the parties submisions on these issues. We set out Dr Ng's principal submissions and our assessment of the matters he raises:
1. Patient A's evidence is based on suspicion or surmise as to what occurred. While literally true, we do not consider that this is determinative whether or not Patient A's account of the consultation should be accepted.
2. Patient A did not include in Exhibit SS, her first written account, that there was any sensation of the underwear being removed, and was prompted by police in completing her statement and could not recall any physical sensation of the underwear being touched.
3. There was a delay in making a formal complaint. We do not consider that this matter was strongly pressed by Dr Ng. In any event, in our view sufficiently the delay is sufficiently explained by Patient A's explanations about her initial trip to the police station, the sexual assault unit examination and her subsequent trip overseas.
4. There was no prosecution of Dr Ng. We consider that the lack of prosecution is satisfactorily explained due to the destruction of the sexual assault kit.
5. Patient A deliberately left out matters from evidence that would be exculpatory of the respondent. We do not consider that this submission is established, particularly in light of the fact that Dr Ng submits that Patient A was simply mistaken, and not motivated by an improper motive or purpose.
6. Patient A was not entirely honest in her account of what occurred, the example being that in her statement to the police in September 2012 she said in par [11] "during the appointment in question and any previous appointment he had never explained any of the procedures to me before doing them". While Patent A was not accurate in her statement in September 2012, we consider that the submission somewhat overstates the matter.
In summary we are satisfied that we should accept Patient's A account of the consultation. As the Court of Appeal stated in Forster, no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied. We are so reasonably satisfied for the following reasons.
First, overall Patient A gave her evidence in a forthright manner. The cross-examination by Ms Lonergan was very thorough, and very detailed (and we add very fair). But throughout the cross-examination Patient A did not deviate from the essential features of her account of events. On the other hand, the manner in which Dr Ng gave evidence was less impressive than Patient A. He was from time to time unresponsive and/or stated his position rather than answered the questions asked of him. Of course, the allegations he was responding to were extremely serious, and it is understandable he wished to state his position. Nevertheless, we find his responses in cross-examination were less persuasive because of this stance. Three examples will suffice.
1. His own counsel asked him, and he responded during examination in chief:
Q. I'm not asking that, what I'm asking you is, given that your palpating between your finger pads and you've got a towel under your fingers, are you able to feel your, whilst you do the palpation having any effect on the underwear line, I don't mean deliberately lifting it, I mean while you are palpating are you able to know whether you're touching or moving the underwear.
A. I do not recall moving or touching the underwear line.
1. Then in cross-examination he was asked, and responded:
Q. What about if there was a need for you to palpate in the genital region and there was a need for you to penetrate a cavity of the body in that region?
A. Number 1, I do not palpate in the genital area at all.
1. Again, in cross-examination, he was asked, and responded:
Q. To alleviate friction in that particular region when examining through skin on skin contact, you could use Sorbolene couldn't you?
A. I did not have skin on skin contact in that region.
Q. Listen to the question carefully. Assume you were; I'm not at this stage suggesting you did, all right, I'll do that later?
A. All right.
Q. At this point I'm suggesting that if you needed to use skin on skin contact in that area and you wish to alleviate the risk of inflammation or . . . friction - abrasion - you wished to alleviate the risk of abrasion or deal with that risk, you could use Sorbolene couldn't you?
A. You are asking a theoretical question, hypothetical question
His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431:
a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7].
In Campbell, Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70] - [77], a decision of Hallen J. Hallen J had noted that Emmett J (as his Honour then was) stated in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48]:
When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).
We consider both these answers to be unresponsive and to indicate a defensive attitude by Dr Ng.
Secondly, the conduct of Patient A on the day of the consultation, ringing her husband, ringing her work colleague, ringing her sister in law, attending the police station and then attending the sexual assault unit of the hospital, is all consistent with the events as claimed by her taking place. We have set out the evidence of these events above. We note that neither Patient A's husband, her work colleague, her sister in law or any of the hospital staff were required for cross-examination. We accept that their evidence is not determinative of whether or not the acts as alleged by Patient A actually took place, but we find them very supportive of her account, particularly when no malice or improper motive has been suggested by Dr Ng.
Thirdly, mindful of the guidance in Bathurst Regional Council as to the utility of contemporaneous or near-contemporaneous documents, the four pages of handwritten notes of Patient A prepared three or four days after the consulation are also consistent with the events taking place as claimed by her.
Fourthly, we do not accept that the criticisms made of Patient A's evidence, in particular that she did not include in her very first account of what happened any thing about the lifting of the underwear, that she had no recollection of the underwear being lifted, and that she agreed that a police officer suggested to her that that is what she should put in her statement, should cause us to doubt her evidence. In our view, it is not appropriate to go over the very fine details of the Patient A's evidence looking for inconsistencies. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.
Being satisfied that Patient A's account should be accepted, it follows that we reject Dr Ng's account of events. As we have noted, the manner in which Dr Ng gave evidence was less impressive than Patient A, and his answers less responsive.