Peden v Ferguson

[2012] NSWSC 492

Supreme Court of NSW|2012-05-09|Before: Adamson J, Gleeson CJ, Kirby JJ

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-05-09

Before

Adamson J, Gleeson CJ, Kirby JJ

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Introduction 1James Peden claims damages in negligence against Dr Michael Ferguson, a general practitioner, for failing to take appropriate action following a consultation on 18 September 2007 which would have led to an earlier diagnosis of sacral chordoma, a terminal cancer which is likely to bring his life to an early end. 2Sacral chordoma is a very rare form of malignant bone tumour, which occurs in the sacrum. Chordomas are slow-growing tumours which often present late with symptoms of pressure on adjacent structures. 3The plaintiff consulted the defendant as his general practitioner from 1988. The plaintiff also consulted other medical practitioners, including Dr Hashmi, Dr Mohammadi, Dr Ishola, Dr Roy, Dr Acland and Dr Alarape, who were general practitioners and Dr Fowler, a physician.

[2]

Issue for determination 4The issues in the case have largely been resolved by agreement. The one remaining issue for me to determine is whether the plaintiff complained of altered sensation and feelings of electric shocks in his legs in the consultation on 18 September 2007. 5The plaintiff's case is that on 18 September 2007, in addition to other complaints, he complained to the defendant of constant and severe pain in the coccyx area in his low back and between his buttocks together with altered sensation and feelings of electric shocks in his legs. 6The defendant's case is that on 18 September 2007 the plaintiff complained only of lower back pain in his coccyx, sacroilial joint pain and low range tinnitus and did not complain of altered sensation and feelings of electric shocks in his legs. 7The plaintiff's case is largely reliant on his recollection and his diaries. The defendant's case is substantially reliant on his clinical notes and other medical records of the defendant and other practitioners. 8It has been agreed that if the plaintiff's case is accepted, the defendant was negligent and the plaintiff is entitled to judgment in the sum of $400,000 plus costs. It has been agreed that if the plaintiff's case is not accepted, the defendant is entitled to judgment in his favour.

[5]

Chronology of events from contemporaneous clinical records and incontrovertible facts 15The plaintiff contracted Reiter's syndrome in South Africa in October 1973. Reiter's syndrome is a form of reactive arthritis triggered by either a sexually transmitted or gastrointestinal infection. It generally affects the larger joints such as the ankle and knee as well as commonly causing sacroiliitis (inflammation of the sacroiliac joints) which presents as chronic low back pain. 16On 18 September 2007, the plaintiff consulted the defendant for diagnosis and treatment of certain symptoms which included low back pain in the coccyx. The defendant's clinical note records: "Low back pain with coccyx pain. Low range tinnitus. SI [sacroiliac] joint pain." 17Following the consultation the defendant referred the plaintiff for a bone scan at the Hunter Health Imaging Service. 18On 27 September 2007, the plaintiff underwent a bone scan which indicated a mild increased uptake in the right sacroiliac joint and mild prominence in the tracer uptake in a linear distribution in the sacrum. The defendant regarded the results as being consistent with Reiter's syndrome. 19On 8 October 2007 the plaintiff was seen by Dr Fowler, a physician and diabetologist, who reported on the consultation in a letter to the defendant dated the same day. Dr Fowler made a positive diagnosis of obsessive personality, Reiter's syndrome and associated polyarthritis. The letter concludes: "You will understand Michael [the defendant] that by the time I went through his 'green book' [the plaintiff's diary] and through all of this detail I did not have time to perform a physical examination. I intend to review him in a further 10 days." 20Dr Fowler neither refers to, nor records, any complaint of altered sensation in the lower legs or pain in the testicles. 21On 18 October 2007, the plaintiff saw Dr Fowler again for the examination foreshadowed on 8 October 2007. In his letter of the same date to the defendant he reported: "I completed a full physical examination on James today. I found no obvious organic cause for his breathlessness with a normal FVC, FeV1 ratio. Heart sounds were essentially normally with a Grade 1/6 localised systolic murmur of no significance. He had no cardiomegaly, no gallop rhythm, no signs of left or right heart failure. He has a right testicle that is partly retracted, his left testicle felt normal. He has normal body distribution of hair although his axillary hair was somewhat reduced... I have organised a series of blood tests in an attempt to give James more complete reassurance that he does not have severe ongoing disease... Summary: Following a fully physical examination there is a very low probability of major organic disease apart from those previously defined. I will review his results and further communicate with you." 22Dr Fowler neither refers to, nor records, any complaint of altered sensation in the lower legs or pain in the testicles. 23In or about November 2007, the defendant was served with a subpoena to produce his medical records in proceedings brought by the plaintiff in the Motor Accidents List of Newcastle District Court. 24On 6 March 2008, the plaintiff cancelled an appointment with the defendant. 25By letter dated 10 March 2008, Dr Fowler wrote to the plaintiff about treatment options for a benign pituitary tumour in his pituitary gland and recommended that the plaintiff take Cabergoline rather than have surgery or irradiation. Once again, Dr Fowler neither referred to, nor recorded, any complaint of altered sensation in the lower legs or pain in the testicles. 26On 25 July 2008, the plaintiff returned to see the defendant, whom he had not seen since September 2007. The defendant's clinical note records: "Chronic lower lumbar back pain. Requesting injection. CT ordered." 27The defendant did not record any complaint of coccyx pain. 28The CT was performed on 28 July 2008. Mild degenerative changes were identified as well as mild diffuse lumbar scoliosis, convex to the right. 29On 11 August 2008, the plaintiff consulted Dr Hashmi, who recorded the following matters in his clinical notes: "(1) The plaintiff had seen Dr Fowler for his general health; (2) Pituitary macroadonoma; (3) Testosterone levels had increased; sex drive and energy levels had improved; (4) Cholesterol had reduced from 6.8 in April 2008 to 4.8 on Simvastatin [an anti-cholesterol drug]; (5) ECHO- mild dietetic dysfunction; (6) Retinal tears (Dr. Hollenbach); (7) Muscle ache and wasting of muscles (8) Low fat diet/ exercise" 30On 14 August 2008, the plaintiff consulted Dr Mohammadi for the first time. Dr Mohammadi's clinical notes recorded: "Suffering from a pain in the coccyx area for a longer term, nil falls or injury. Has been on Simvastatin, had muscle wasting, has stopped, needs a lipid profile check up. OE [on examination]: General app normal, heart 2x, chest clear, BP 124/70." 31Diagnoses of pituitary adenoma, hypertension and hyperlipidaemia were noted. Panadeine Forte was prescribed and various blood tests were ordered. 32On 19 August 2008, the plaintiff consulted the defendant again. The defendant's clinical notes record: "No relief with L & R injection. Claims legs are numb, muscle wasting (which he believes is due to Simvastatin). Nerve conduction studies ordered." 33On 25 August 2008, the plaintiff saw a Dr Ishola, a general practitioner in the same practice as Dr Mohammadi. Dr Ishola recorded that he discussed the results of the blood tests; that the plaintiff's blood pressure was 110/49. He recorded that they also discussed the plaintiff's concern about his right thigh, which was felt to be an adverse reaction to Simvastatin. Dr Ishola recorded that he reassured the plaintiff about the recent facet joint injection. 34On 12 September 2008, the plaintiff saw Dr Roy who practises in the same practice as Dr Mohammadi. Dr Roy recorded that he gave the plaintiff a script for Panadeine Forte for back pain. The plaintiff's blood pressure was 106/60. He complained of pain and tenderness in his left lower chest and gave a history of hiatus hernia. He mentioned musculoskeletal pain and shortness of breath. He gave a history of diastolic dysfunction which had been investigated before. Dr Roy recorded that he told the plaintiff to follow these matters up with his usual general practitioner. 35On 25 September 2008 the plaintiff saw Dr Acland, another general practitioner in the same practice as Dr Mohammadi. Panadeine Forte was prescribed; his height and weight were measured and his BMI calculated; and his blood pressure tested at 120/80. Dr Acland also recorded: "(R) sciatic pain past 2 months, under care of Dr Michael Ferguson who is sending pt for nerve conduction studies. Requests panadeine forte until cause of pain identified and definite treatment arranged. Weight loss of 15 kgs and wasting of proximal muscle- ? due to simvastatin prescribed by Dr Fowler for hyperlipidaemia. Pt has ceased medication, against Dr Fowler's recommendation. Pt advised to seek 2nd opinon re Simvastatin- to make appt with Dr Silberberg or Dr Nikelotatis and return for referral." 36The nerve conduction studies that the defendant had recommended the plaintiff undergo on 19 August 2008 were carried out on 10 October 2008 by Dr Katekar. The report stated that there was no indication of denervation or myopathy but that an absent reflex may indicate lumbar nerve root disease. 37On 14 October 2008, the plaintiff saw Dr Fowler again. He reported pain in his coccyx, numbness in his right upper thigh and right testicular pain. 38On 23 October 2008, the plaintiff consulted the defendant again. The defendant's clinical notes record: "James feels statins are responsible for his muscle wasting R leg. Trial Lipidil. Reports numbness in distribution of R L4 which dates from time of cortisone injection. Referred Dr M. Edger specialist." 39On 22 November 2008, the plaintiff saw Dr Alarape, another doctor in Dr Mohammadi's practice, who recorded: "Recurrent lower back pain for years Needs his panadeine forte and said he attends an ortho specialist And has had intra-articular cortisone Will be going for MRI at jhh [John Hunter Hospital] in 3 weeks- Dr Michael Edger Not in distress Script done for Panadeine Forte Do x-ray L/S [lumbar sacral] spine to appraise the L/S spine condition Do tests R/t for results asap" 40On 2 December 2008 the plaintiff saw Dr Kazemi, a neurosurgical registrar in Outpatients at John Hunter Hospital. An examination was performed and a MRI recommended. Dr Kazemi reported the results of the consultation that same day in a letter to the defendant. 41On 9 January 2009 the plaintiff was diagnosed with a sacral chordoma approximately 10 centimetres in diameter in the right buttock in the region of the S4 sacral segment as well as the coccyx with extension into the presacral space.

[6]

The plaintiff's version of events 42The narrative set out below is derived from the plaintiff's affidavit evidence, evidence on commission and his oral evidence in the hearing before me, together with his diary entries. 43The plaintiff's evidence was that, in early 2007, he developed symptoms including constant, severe pain in the coccyx area in his lower back and between his buttocks together with altered sensation and feelings of electric shocks in his legs, which also affected his testicles. The pain in his coccyx was "like sitting on a knife". The pain grew worse with exertion up hills or stairs. These symptoms were very different from those he had experienced before. In about May or June 2007, he noticed an obvious large swelling protruding from the back of his pelvis. 44Notwithstanding the severity of the pain and symptoms described above, the plaintiff did not consult either of his two general practitioners, the defendant or Dr Hashmi, about it until he saw the defendant on 18 September 2007. He said that he did not consult anyone because he thought that the pain would "just pass". 45The plaintiff's evidence was that on 18 September 2007 he consulted the defendant and described the following symptoms: "I have excruciating pain in the tailbone at the base of my spine and down my leg. I can't walk up slopes or stairs due to the pain. Even when I sit in a soft chair I feel the pain in the tailbone. My right leg feels numb and I have pins and needles and I feel at times that I can't control my right leg when I walk. I feel electric jolts in my right leg and right buttock. I also feel frequent sharp stabbing pain like an electrical shock in my testicles." 46The plaintiff said that the defendant responded: "That's ball pain. I get it. Don't worry about it." 47When it was put to the plaintiff, during cross-examination, that he did not complain of testicular pain on 18 September 2007, he maintained: "I remember it as clear as I'm sitting here today, and I remember his [the defendant's] response, 'That's ball pain. I get it. Don't worry about it.' And actually I recall him laughing." 48The plaintiff also said that he told the defendant that he was concerned that he had a nerve problem. He said that the defendant did not examine him at all during that consultation. When it was put to the plaintiff that the defendant palpated his lower back and the coccyx area by gently pressing it, he denied that it, or any other examination, had occurred. In later questions, he said that he did not recall such examination. 49The plaintiff gave evidence that on the evening of 18 September 2007 he made a diary entry that recorded what had occurred in the consultation. His evidence and the diary entry are addressed further below. 50The plaintiff gave evidence that the defendant told him, when he rang one of the two phone lines to the defendant's rooms from a public phone after the bone scan, that there was no abnormality on the scan. 51The plaintiff's evidence was: "These symptoms continued and grew worse over time to the point in late 2008 that I had occasional problems driving a car due to altered sensation in my feet and difficulties with walking up hills." 52The plaintiff's consultations with Dr Fowler on 8 and 18 October 2007 were not mentioned in his affidavit evidence. The diary entry for 8 October 2007 is referred to below in the separate consideration of diary entries. The diary entry for 18 October 2007, in its entirety, reads: "Noon: 12.00 DR FOWLER ($85-) TAKE $200. 30 [address] (Ph. [phone number]) Dr Fowler wants me to ring his secretary to make appt. 8-10 days after last of three tests have been done. Check to see if all results received before making appt." 53The plaintiff explained that he did not see the defendant for another ten months, until July 2008, because he had "lost some trust in him". However, he admitted that he did not see any other general practitioner in that period. The plaintiff did not give any satisfactory explanation for the alleged loss of trust. 54There is a brief notation in the plaintiff's diary of his appointment with the defendant on 6 March 2008 (which the defendant noted was cancelled) which reads: "FERGUSON- WHAT IS IN INJECTION?- WILL IT CONFLICT WITH RAMPRIL/ SIMVASTATIN. I'M ALLERGIC TO SULPHUR-BSED DRUGS." 55When asked about a consultation with the defendant on 25 July 2008, the plaintiff said: "I can't recall that particular one in my memory bank and bring it up exactly, no." 56There is no entry in the plaintiff's diary for 25 July 2008. 57In his affidavit of 7 December 2011 he deposed, with respect to the consultation with the defendant on 25 July 2008: "I informed him of the symptoms that I had experienced since 2007. In addition I remember saying words to the effect: "These symptoms are not the same as the sacroiliitis which I have experienced in the past. This is life-changing pain and something has to be done." 58The plaintiff was only "very, very vaguely" able to recall a consultation with Dr Mohammadi on 14 August 2008. There is a brief entry in his diary for that day which relevantly reads: "Blood pressure 124/70- started Panadeine Forte ~ tabs ea 6 hours when necessary." 59When asked about a consultation with the defendant on 19 August 2008, the plaintiff said that he could not remember the specifics of it. He said: "the only one I can remember specifically in detail is the very first one in September '07." 60The plaintiff's diary records for that day, 19 August 2008: "APPT FERGUSON- 12.00 Want pain in lumbar spine fixed

C/TOWN doctor said need pain manager." 61The plaintiff was unable to recall a consultation with Dr Ishola on 25 August 2008, with Dr Roy on 12 September 2008 or with Dr Acland on 25 September 2008. 62A page from the plaintiff's green diary which covers the period from 22 to 28 August 2008 has been removed. I do not accept the plaintiff's evidence that it is not uncommon for him to remove pages from his diary, particularly where they contain matters concerning his university studies. I infer that the contents of the missing pages would not have assisted the plaintiff. 63In respect of the consultation with Dr Roy on 12 September 2008 the plaintiff did not deny that it had occurred. He said in his evidence on commission: "But look, if it's down there [recorded in the clinical notes], no doubt I - I went there." 64The plaintiff said, in cross-examination in his evidence on commission, that he did recall seeing the defendant in October 2008, although he did not refer to any such consultation in either of his affidavits. 65The plaintiff did not recall anything about the consultation on 22 November 2008 with Dr Alarape apart from the x-ray of the lumbar spine, which he said in his evidence on commission "rings a bell". 66When the appointment with Dr Kazemi on 2 December 2008 was put to the plaintiff in his evidence on commission, he said it was "very vague to me".

[8]

Diary entry for 18 September 2007 71Because the single issue which now remains in the case concerns the consultation between the plaintiff and the defendant on 18 September 2007, the most significant diary entry for the plaintiff is the diary entry for that date. There is a real dispute about whether what was written on that page is contemporaneous, or was included later, or whether it is a mixture of both. The plaintiff's evidence is that he probably wrote it on the evening of 18 September 2007 because he tends to make notes in the evening of the important things that have happened during the day. 72Because of the importance of the note, I shall set it out in full: "12.00 (MICHAEL FERGUSON.) - if not sooner

Pain in testicles - started approx. 6 months ago.

disappeared then reappeared - sharp, stabbing pain.
in right testicle?

Fluid in legs, pain in legs walking up slopes, fluid at top of behind & pain in coccyx when walking up hills.

a doctor said fluid in middle ear/possible nerve damage in ear of fluid in legs and base of spine all related - said didn't need fluid tablets at that stage - see my doctor in Jan 07 (dripping/loud ticking in left ear) is still prevalent at night when in bed.

Tightness in chest & dry cough.
frequent urination. (sometimes every few minutes.)
where can I get my arm/elbow fixed - straightened?
Palpitations - heart." 73One of the more salient features of the entry is that a portion has been cut out. Part of the portion that was cut out has been re-inserted on the page and stuck in with adhesive tape. When the plaintiff was asked about the cut out portion he said: "I cut that out shortly after I had written it, in fact straight after I had written it because I needed the information on the back of it." 74The information on the back of the entry was the name and address of a person in France, but this portion was on the piece that was stuck back into the diary and appears on the page for the previous day, 17 September 2007. However when it was put to the plaintiff that he had cut out a portion of the 18 September 2007 entry because he did not think it would assist his case if it remained he said that he received a phone call while he was writing and he put the personal note relating to the phone call at the end of the entry for the consultation. Ultimately he agreed that the cut out portion was not at the end of the entry. 75The plaintiff was adamant that all notes in his diary were contemporaneous. When it was put to him that he had used different pens in the same entry he said: "The pen was just the one that was to hand because I've never gone back and written things after the event." [Emphasis added] 76The inference that the plaintiff used the diary to refresh his recollection of what had occurred (which would arise if I accept his evidence on commission that his account of events is based both on the diary and on his oral recollection) is not open given the important disparities between the diary entry and his evidence. In particular, the diary entry makes no mention of altered sensation in the right leg and foot; loss of control of movement in his right leg; or the feeling of electric shock in the right leg, buttock or the testicles. The affidavit makes no mention of frequent urination. 77The plaintiff rejected the suggestion put to him in cross-examination that where complaints were not included in his diary, it is likely that he did not make them to Dr Ferguson. This evidence is inconsistent with his evidence on commission which indicated that he was reliant on his diary to assist his recollection.

[11]

Diary entry for 13-14 October 2008 83There is an entry in the plaintiff's diary which runs from the top of 13 October 2008 to the bottom of 14 October 2008. It reads, in its entirety: "SEE FOWLER - TIME? 10.30 AM? MEDICATION CURRENT:- CABERGOLINE/RAMPRIL/CO-ENZYME 110/MACU-VISION Stopped Simvastatin 13/08/08 started taking panadeine forte (2-4 per day.) Will I take ramipril for life? When can I stop cabergoline? When is next brain scan? 6/8/08. Had injection in L5 facet joints - pain worse & more widespread - can't sit or walk far. Ask Fowler about pain (sharp) in right testicle, occasionally left - usually when in bed at night - want examined. Ferguson said don't worry about it. Need more panadeine forte (50 tablets).

Results of blood tests.
still short of breath
no appetite.
Protein supplement? How long can I take Panadeine forte?" 84When it was put to the plaintiff that the note was not contemporaneous his denial was unequivocal: "Q. It is likely, is it not, you have gone back and put that in as a consequence of the proceedings you commenced against Dr Ferguson to make your case look further better than it was? A. No, because after the event I don't go and alter it things. I have never done that. It's not my nature. The diary is what it is." 85There are several indications that this note is not contemporaneous. It relates to consultation on 14 October 2008 and yet the entry begins on 13 October 2008. The question mark indicates a lack of certainty about the time of the appointment which also suggests that it was written later, when the plaintiff could no longer recall at what time and on what day he had seen Dr Fowler. The plaintiff's evidence, that the note that the defendant told him not to worry about sharp pain in his right testicle relates back to the consultation on 18 September 2007, is implausible. It accords great significance to the consultation on 18 September 2007 when, at that time, no diagnosis of sacral chordoma had been made and there was, accordingly, no reason for the plaintiff to attribute to that consultation the significance that the he now does. Furthermore there is no reason why the plaintiff would insert this detail in a consultation more than a year after he now says that the comment was made. 86I find that this note was not contemporaneous. It is probable that it was made after the diagnosis of sacral chordoma in January 2009.

[12]

The defendant's evidence in response to the plaintiff's version of events 87As at September 2007, the defendant was a sole practitioner in a very busy general practice at Broadmeadow. He had closed off his books some years previously to new patients, but made an exception for relatives of established patients. His wife was the practice manager and his daughter worked as the receptionist. He employed a practice nurse for one day a week. There was a single phone line into the practice. 88The defendant's recollection of what was and was not given by way of history by the plaintiff on 18 September 2007 is set out above. The practice appointment book recorded that the consultation started at 12.05 pm and concluded at 12.30 or 12.35 pm. It was, by the Medicare definition, a long consultation. 89The defendant gave evidence that he made a thorough examination of the plaintiff's back. He said that he asked the plaintiff to keep his clothes on and tested for tenderness while the plaintiff was both in a standing and face-down position. He checked the plaintiff's range of movement and reflexes. He did not make a diagnosis that day but referred the plaintiff for a bone scan. He said that his examination of the plaintiff and understanding of his symptoms led him to believe that the plaintiff was experiencing a flare-up of Reiter's syndrome. He considered a bone scan to be the best investigative tool for an inflammatory disease of that nature. He filled in a bone scan referral form and sent it off. 90The defendant denied that the plaintiff made complaints of pain or altered sensation in his legs, pins and needles or electric shocks in his right leg and right buttock or pain or the feeling of electrical shock in his testicles. He said that had the plaintiff done so he would have ordered a CT scan, which tends to show nerve entrapment, rather than a bone scan which does not. 91The defendant vehemently denied that he had said the words the plaintiff attributed to him about "ball pain". He said in evidence: "I never discuss my personal medical complaints with patients and, for the purpose of this discussion, it's not an area of concern on my part." 92The defendant also said that he had never come across a case of "sharp stabbing pain like an electric shock in testicles" apart from as a result of trauma and had never encountered numbness in testicles. He observed that the testicle nerve supply is provided at the higher levels of the lumbar spine, through L1-L2, and migrates through the pelvis through the inguinal canal which is in front. His evidence was: "I cannot see any anatomical connection between his disease process and what he allegedly complained of." 93At the conclusion of the consultation the defendant said that, because of the demands of his practice, he told the plaintiff that he would only contact him about the results of the bone scan if he had any concerns about the results. 94When the defendant received the bone scan in late September or early October 2007 he considered that it was consistent with the plaintiff's clinical presentation of sacroiliitis and consistent with Reiter's disease. To the extent that it recorded increased uptake in certain areas it was evidence of previous trauma, since a bone scan depicts old injuries and "has a long memory". 95The defendant said that his rooms had only one phone line and that he did not speak to the plaintiff about the bone scan. He said that his usual practice was only to contact a patient if an investigation was abnormal. He did not regard the results of the plaintiff's bone scan as abnormal because it was consistent with Reiter's syndrome. He denied that he spoke to the plaintiff about the results. 96The defendant gave evidence that, consistent with his usual practice, he examined the plaintiff on 25 July 2008 and checked his range of movement, tenderness and reflexes. Following the consultation he referred the plaintiff for a CT scan and, if appropriate, a CT-guided L5/S1 facet joint injection to relieve pain in his lower back. He considered a CT scan to be the next diagnostic option after the bone scan which had not been particularly conclusive. 97The defendant gave evidence that he examined the plaintiff on 19 August 2008 in accordance with his usual practice. The plaintiff's complaints of numb legs and muscle wasting caused the defendant to refer him to a neurologist for nerve conduction studies. 98The defendant gave evidence that he saw and examined the plaintiff on 23 October 2008 in accordance with his usual practice. He considered that he had exhausted all available diagnostic tools apart from a MRI which Medicare prohibits general practitioners from referring. In order to overcome the prohibition, the defendant referred the plaintiff to Dr Edger, a neurosurgeon.

[13]

The "credibility" of the clinical records of medical practitioners 99The plaintiff submitted that the contemporaneous clinical records are, themselves, unreliable. This submission encompassed all clinical records, and not merely those of the defendant. 100It is important, in my view, to appreciate the significance of clinical records. which are intended to record matters which are salient from a medical point of view. The following passage from Hope JA's judgment in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 is a convenient articulation of why the admissibility of such records is "of great importance in the search for truth": "Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of Pt IIC [of the Evidence Act 1898]. If a busy honorary such as the second respondent wished to remind himself what the appellant's precise problem or medical condition was, or to learn what had happened since he last saw her, he would undoubtedly refer to the records, and would act upon the basis that they were correct. If, for some reason, a new honorary had to take over the case, it is to the records that he would go to find out what had happened or what he had to do. No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, than in the recollection of persons trying to describe what happened at some time in the past. When what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth." 101I consider the clinical records of medical practitioners to be the most reliable evidence in these proceedings. There is no doubt that each was contemporaneous in that they were made in the course of each consultation with the plaintiff. Furthermore they were made by persons who had, at the time the record was created, no interest in doing other than making a record of what had occurred. While many criticisms were made of the defendant's records, which are addressed in more detail below, the effect of the criticisms were that his records were incomplete or insufficiently comprehensive, rather than that what he recorded was incorrect. 102The evidence summarised in chronology set out above is, in my view, the most powerful evidence that the plaintiff did not complain to the defendant on 18 September 2007 of altered sensation or the feeling of electric shocks in his legs.

[14]

The plaintiff's credibility 103The plaintiff impressed me as a man who believed that he was telling the truth, but was not in fact doing so. He was adamant about certain things, which I do not accept to be true. For example: (1) His evidence that he did not ever go back and write anything in his diary after the event was, in my view, contradicted by the entries of 18 September 2007 and 11 August 2008. (2) He was definite that the "green book" remained in his house at all times and that he had never taken it to a doctor's appointment, and yet he was ultimately forced to concede that he had taken it with him when he saw Dr Fowler on 8 October 2007. (3) His evidence on commission was to the effect that he was dependent on his diary for many matters and yet the crucial symptoms which he would have me believe he told the defendant on 18 September 2007 do not appear in the diary entry for that day. (4) His evidence that as his symptoms got worse he made more diary entries is not borne out by the diaries themselves, where the most detailed entry of what purportedly happened is for the 18 September 2007. Many consultations in 2008 had no diary entries at all, or none that recorded much beyond the time and place of the appointment. 104I do not accept the plaintiff's recollection of the18 September 2007 consultation. The consultation was one of many consultations about which he was asked questions but it is the only one that the plaintiff purports to remember well. He has little, if any, recollection of consultations that occurred considerably later. This tells against his credibility. 105Furthermore, if the plaintiff's evidence that he wrote the entry for 18 September 2007 that night were true, then the detailed entry would have been in the diary when he took it with him to Dr Fowler on 8 October 2007 with his list of complaints to impart and discuss. It is unlikely that, had he taken the trouble to document in such extraordinary detail what had occurred on 18 September 2007, he would not have related it to Dr Fowler on 8 October 2007, particularly in circumstances where the consultation on 8 October 2007 was, as appears from Dr Fowler's letter reporting to the defendant, entirely devoted to taking a history from the plaintiff. This is particularly so, in light of the plaintiff's evidence that, for some unexplained reason, he had lost trust in the defendant at that time. 106I do not consider the plaintiff to have provided a satisfactory explanation of the portion of the entry for 18 September 2007 that remains cut out. It is an open question whether it contained something detrimental to his case. Whether the missing portion contained something which betrayed its lack of contemporaneity is a matter which is not resolved by the evidence. I infer, however, in light of what I find to be an unsatisfactory explanation for its removal, that its inclusion would not have assisted the plaintiff's case. 107I do not accept the plaintiff's submission that his diaries operated as an aide-memoire. While it is true that the plaintiff cannot be criticised for not keeping notes of consultations since, unlike the defendant, he had no obligation to do so, it tells against his credit that he has endeavoured to use his diary entry for 18 September 2007 to give verisimilitude to his evidence about what occurred, when it was not contemporaneous. 108The defendant's unchallenged evidence is that in or about November 2007 he was served with a subpoena in unrelated proceedings brought by the plaintiff in the District Court. The significance of this evidence was not explored at the hearing. However it establishes that the plaintiff at least had the opportunity to have access to the defendant's clinical notes of the consultation on 18 September 2007. When the light of hindsight was shone by the subsequent diagnosis of sacral chordoma on the consultation of 18 September 2007, it is possible that the plaintiff may have inferred from his complaint of pain in the coccyx that he had in fact given a much more detailed history which could have led to an earlier diagnosis. The evidence does not permit me to make a finding on the balance of probabilities. 109I consider the following passage of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 to be particularly apposite to the plaintiff's evidence in the instant case. His Honour said, at 319: "...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." 110Lord Pearce's dictum in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 is also instructive. I consider that the highlighted passages are apposite to the plaintiff's credibility in the instant case: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason 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." [Emphasis added] 111It was my impression that the plaintiff's changes in version were affected by motive, self-interest and wishful thinking. He was a man obsessed with his own health, bodily functions and symptoms. He may have regarded the diagnosis of a large sacral chordoma in January 2009 as an affront, given the numerous relatively trivial complaints about various areas of his body which he had brought to the attention of several medical practitioners over the previous eighteen months, none of which permitted the diagnosis to be made. His desire to cast blame on a member of the medical profession for his imminent demise may be understandable, but was not, in my view, well-founded. It led him to reconstruct the past and to insert entries into his diary which were not contemporaneous and which, at least in part, fitted his preferred hypothesis.

[15]

The defendant's credibility 112The defendant was cross-examined to the effect that his clinical notes were deficient. His entries were frequently, if not invariably, laconic. He agreed that he did not, for example, invariably record complaints of pain or other symptoms. Nor did he necessarily record the investigation he had arranged or why he had administered a particular injection. 113On several occasions, he did not record the results of physical examinations that he had carried out or even the fact that he had carried out a physical examination at all. The defendant said by way of explanation: "I only record positive findings." 114He did, however, concede that he was obliged to record negative, as well as positive, findings. 115The defendant agreed that he had formed the view that some of the plaintiff's complaints had a psychiatric or psychological origin and that there was probably a considerable psychogenic component to his complaints. However, he said, and I accept, that such matters would not have deterred him from referring the plaintiff for future investigations if he thought them appropriate. Indeed the evidence showed that each of the four consultations the defendant had with the plaintiff in the relevant period led to the following further investigations: (1) 18 September 2007: bone scan; (2) 25 July 2008: CT scan; facet joint injection; (3) 19 August 2008: nerve conduction studies; (4) 23 October 2008: referred to Dr Edger for, referral for MRI. 116Although the defendant agreed that he did not always record all the symptoms and complaints made by the plaintiff, he said, and I accept, that he recorded all the complaints that he adjudged to be serious. He said that he adjudged each of the matters he recorded in his clinical note of 18 September 2007 to be serious. He said that if the plaintiff had told him of altered sensation and a feeling of electric shock in his legs he would have regarded that as a significant matter and he would have ordered a different test, namely a CT scan, rather than a bone scan. He also said that a complaint of electric shock in the right leg, buttock and testicles would have been a bizarre complaint that he had not earlier encountered, but that he would have considered it to be serious and would have included it. 117It was apparent from the defendant's evidence that much of which he purported to recall was, in fact, reconstruction from his usual practice and from what was recorded in his clinical notes. This is understandable in the context of a medical practitioner who sees several patients every day. It does not make his evidence unreliable. Indeed, as appears from the passage in Albrighton's Case, his notes are likely to be more reliable than any vestiges of recollection he may have. 118Evidence of usual practice is not only admissible (Connor v Blacktown District Hospital [1971] NSWLR 713 at 721, per Asprey JA, Mason JA agreeing) but I consider it to be probative in the circumstance of the defendant's general practice. I accept that he examined the plaintiff on each of the four consultations. 119I formed the impression that the defendant was telling the truth in his evidence. He readily made concessions about his lack of recollection and the poor quality of some of his notes. 120I accept the defendant's evidence that he examined the plaintiff at each consultation. I accept that the plaintiff complained of the matters recorded in the clinical notes of the consultation kept by the defendant and that the plaintiff did not complain of significant matters that were not recorded: altered sensation and feelings of electric shocks in his legs. I do not accept the plaintiff's submission that these symptoms were "missed". 121The plaintiff submitted that he was more likely to have an independent recollection of a particular consultation than the defendant since he was only one of very many of the defendant's patients and the defendant had several consultations per day. Even accepting this to be the case, I do not consider, for the reasons already given, the plaintiff's evidence to be reliable, since I consider it to have been the product of wishful thinking and motive, rather than true recollection.