Supreme Court of WA|2005-03-24|Before: Mr J, Owen J, Jenkins J

Roberman v The Medical Board of Western Australia [2005] WASC 45 (24 March 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ROBERMAN -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2005] WASC 45

Jurisdiction : MEDICAL BOARD OF WESTERN AUSTRALIA

Coram : DR T LORD MB BS, FRACGP, MR N J MULLANY LLB (HONS), BCL, ASSOCIATE PROFESSOR G J RILEY MB BS, MRC PSYCH, FRACGP, FRANZCP, DR F JEFFERIES MB BS, FACRRM, MS A WHITE

Result : Gross carelessness established, Incompetency not established, Practitioner's registration suspended for 9 months

Medical practitioners - Practitioner guilty of gross carelessness - Whether Medical Board erred in finding complaints proved - Whether Medical Board erred in ordering suspension

Appeal allowed in part by substituting for the penalty imposed by the respondent a reprimand, a fine of $7,500 and a requirement that the appellant enter into an undertaking to be of good behaviour for a period of 12 months and comply with a condition that he not practice obstetrics during that period

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274

Dunning v Scheibner, unreported; SCt of NSW; Library No 13776; 15 February 1994

Hewett v Medical Board of Western Australia [2004] WASCA 170

Jemielita v The Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992

Sinha v Health Care Complaints Tribunal [2001] NSWCA 206

Srna v The Medical Board of Western Australia [2004] WASCA 198

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983]

"EO" v Mental Health Review Board [2000] WASC 203

Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322

Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902

R v The Medical Board Ex Parte St Vincent, Isaachsen and Gregory, unreported; FCt SCt of WA; Library No 7879; 6 October 1989

Sakalo v The Medical Board of Western Australia [2002] WASCA 178

1 JENKINS J: This is an appeal by Brian David Roberman ("the appellant") from a decision of the Medical Board of Western Australia ("the respondent"). At the time of the conduct complained of, the appellant was a full-time obstetrician and gynaecologist employed by the Health Department of Western Australia at the King Edward Memorial Hospital for Women ("KEMH").

2 On 17 March 2004, the respondent found that the appellant's conduct particularised in pars 1A(a) and 1A(b), save for one alleged fact, of the re-amended notice of inquiry dated 16 January 2003 had been found proven and that the proven conduct constituted gross carelessness on the part of the appellant under the Medical Act 1894 (WA), s 13(1)(c). On 1 April 2004 the respondent suspended the appellant's registration for nine months. That suspension was stayed pending the outcome of this appeal.

3 The respondent's inquiry arose out of the appellant's treatment and management of an expectant mother in the two and a half hour period prior to delivery of her child on 30 November 1994 at KEMH. In its reasons for decision ("RFD"), the respondent referred to various persons involved in the labour and the delivery of the child by letters, in order to maintain their privacy. The following letters were given to the persons named opposite the letter:

A The mother

B The child

C A midwife on duty during the evening of 29 November 2004 and the morning of 30 November 2004.

D Another midwife

E The midwife who was the co-ordinator of the Labour Ward on the evening of 29 November 1994 and the morning of 30 November 1994.

F An Obstetrics Registrar on duty from 6 pm 29 November to 8.30 am on 30 November 1994.

G Another midwife.

H The midwife who was co-ordinator of the Labour Ward from 7.00 am on 30 November 1994.

4 I shall refer to the participants in the same manner.

5 Pursuant to the Medical Act 1894 (WA), s 13(8) this appeal is by way of a rehearing. As to the nature of the rehearing I respectfully adopt the comments of Pullin J in Srna v The Medical Board of Western Australia [2004] WASCA 198 at [4] where he said:

" ... The decisions make it clear that the rehearing of the matter is a rehearing of the merits of the decision of the Board based on the transcript and documentary evidence which was before the Board and any additional evidence which is permitted by leave under O 65 r 10. The appellant must persuade the court that the decision appealed from was in error. In deciding whether there was an error, due weight must be given to the opinion of the Medical Board on issues such as credibility of witnesses and the characterisation of conduct found to have occurred. If error can be shown then it is the duty of the appellate Judge to make up his or her own mind as to what facts are proved and what inferences should be drawn from those fact. See Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 328; Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990; Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992; Sakalo v Medical Board of Western Australia [2002] WASCA 178 at [26]."

6 The agreed facts, together with those that were in dispute, are that in 1994 the appellant was a full-time obstetrician and gynaecologist at KEMH. He had become a fellow of the Royal Australian College of Obstetricians and Gynaecologists in 1979. He apparently had rights of private practice at the hospital and [A] was his private obstetrics patient. At approximately 4.45 pm on 29 November 1994 [A] was admitted to KEMH. At 5.30 pm the appellant attended upon [A] and conducted a digital vaginal examination of her. He applied prostaglandin E2 gel to [A's] cervix to induce labour. He instructed the attending midwife to apply a further dose of gel in six hours if labour had not begun by then. He also instructed the attending midwife to attach [A] to a cardiotocograph ("CTG"), to monitor her baby's heart and her contractions. This the midwife did. The appellant then left KEMH and went home to Heytesbury Road, Subiaco, approximately five residential blocks from KEMH.

7 At 6.25 pm the midwife detached [A] from the CTG.

8 At 1.00 am on 30 November 1994 a midwife applied a second dose of prostaglandin E2 gel. A few minutes later a midwife reattached [A] to a CTG. Approximately 45 minutes later a midwife detached [A] from the CTG. This was normal practice if no problems were noted. At 3.30 am [E] performed a digital vaginal examination of [A]. Another midwife administered pethidine, for pain relief, and maxalon. At 5.00 am [A] was observed to be having contractions once every two minutes and she was transferred from the Labour Ward to delivery room 15.

9 At 6.00 am [C], although not the midwife attending [A], heard what she believed to be decelerations in the foetal heart rate on a doptone foetal heart rate monitor. [C] reattached [A] to a CTG. Between 6.10 and 6.20 am [C] told [D], who was the midwife attending [A], about the decelerations in the foetal heart rate. [D] performed a digital vaginal examination of [A] and found that [A's] cervix was 100 per cent effaced and 2.5 cms dilated. [D] attached a foetal scalp electrode to [B's] head for better foetal heart monitoring. [D] telephoned the appellant because she was concerned about the decelerations on the CTG trace ("the trace") then produced and the results of the vaginal examination which showed that [A] was still in the early stages of labour. She called the appellant at home and told him of her findings on performing the vaginal examination and the decelerations she saw on the trace. She told him that the Anaesthetic Registrar at KEMH had agreed to insert an epidural block for analgesia. The appellant instructed [D] to preload [A] with fluids prior to the epidural and instructed her to have the Obstetrics Registrar on duty in the Labour Ward to see [A]. The appellant could not recollect this call but did not dispute that it had happened. [E] also gave evidence that she called the appellant after the vaginal examination at 6.20 am. She testified that she told the appellant that there were late decelerations on the trace, that she was concerned and that [A] needed a medical review. She said that the appellant told her that she was misinterpreting the trace. In cross-examination the appellant first said that he had no recollection of this call but was not saying that she was lying. Later, he said that he denied that she had rung him (AB 610 - 611). In light of the appellant's admitted failure to recollect [D's] call it is difficult for me to put any weight on his denial of this call which occurred at a similar point in time.

10 The respondent found the midwives to be honest and to have given professional accounts of events as they recalled them (AB 73, RFD 103). This finding would apply to [E]. The respondent found it unnecessary to make a finding as to whether [E's] call occurred. I find it did. I find it incredible that [E] could honestly imagine such a call.

11 Consequently, sometime between 6.20 and 6.30 am, [D] asked [F], the Obstetrics Registrar on duty in the Labour Ward, to see [A]. This was not the usual practice. [F] attended [A] and reviewed the trace. [F] telephoned the appellant at home and told him that he had just reviewed the trace, which he said was "unusual". [F] told the appellant that he had not previously seen a trace like the trace. [F] told the appellant that, on the trace, the baseline of the foetal heart rate seemed to be 120 beats per minute but it was dipping acutely between the contractions. [F] claimed that he also asked the appellant to come and review the trace. That was denied by the appellant. The respondent found that [F] informed the appellant during this telephone call that he wanted him to attend and review the trace (AB 82, RFD [115]). The appellant instructed [F] to administer a litre of intravenous fluids to [A], to be followed by a further litre. A litre of Hartmann's solution was administered intravenously to [A] and [F] observed the pattern on the trace to improve. At 6.45 am an epidural block was inserted for analgesia.

12 At 7.10 am [F] telephoned the appellant and told him that the trace continued to look unusual with abrupt decelerations after contractions lasting until the next contraction. The appellant told him that it sounded like a vagal trace. [F] claimed that he asked the appellant to come in as soon as he could. The appellant denied this. The respondent found that [F] did ask the appellant during this telephone conversation to come into the hospital to review the trace as quickly as he was able (AB 126, RFD [204]). The appellant told [F] that he would be in soon to review the trace.

13 At 7.35 am [A] was given more pethidine for analgesia. At 7.55 am the appellant arrived at KEMH and attended [A]. At 8.28 am the appellant delivered [B]. [B] was born with significant problems but the inquiry was not concerned with the cause of these problems.

14 The re-amended notice of inquiry contained two paragraphs setting out relevant allegations against the appellant. The allegations contained in par 1 were found not proven by the respondent. Most allegations in the second paragraph, 1A, were found proven. That paragraph stated:

"1A. It appears to the Board acting pursuant to section 13(1)(c) of the Act that you, being a medical practitioner registered under the Act, may be guilty of gross carelessness or incompetency in attending the labour of [A] in that on 30 November 1994 you failed to attend promptly upon [A] to review the trace;

(a) when called, at or about 6.30am, by [F], an obstetric registrar employed by King Edward Memorial Hospital ('[F]'), in circumstances where [F] informed you that the trace was unusual and/or that he wanted you to attend and review it;

(b) when called again by [F] at or about 7.10am, in circumstances where:

(i) [F] informed you that the trace continued to look unusual and/or was non-reassuring, and/or requested you to attend as soon as possible to review the trace;"

15 It was agreed that each allegation concerning the failure to "attend promptly" following receipt of the telephone calls from [F] was a separate complaint (AB 33 RFD [10]). The only allegation contained in par 1A which was found not proven was that [F] informed the appellant at or about 7.10 am on 30 November that the trace was "non reassuring".

16 In his substituted answer dated 8 May 2003 the appellant, relevantly, admitted that [F] phoned him on two occasions in the early hours of 30 November and during those calls commented on the appearance of the trace. He further admitted that during each phone call [F] described the appearance of the trace as "unusual". The appellant denied that he failed to attend promptly to review the trace and said that he attended at an appropriate time having regard to what he had been told by [F] during the two phone calls. He did not admit the time of either phone call and otherwise denied the allegations.

17 The respondent heard evidence from eight witnesses of fact, including the appellant. These included five midwives involved in the care and treatment of [A], being [C], [D], [E], [G] and [H], and [F]. Additionally, the respondent received evidence from two expert witnesses. Doctor Mark McKenna, obstetrician, was called by senior counsel assisting the Board. Associate Professor Jan Dickinson, obstetrician, was called on behalf of the appellant. It is unnecessary to detail their qualifications and experience as both were accepted by the parties as being eminent obstetricians and experts in the field of obstetrics.

18 There are 11 grounds of appeal, many of which contain subparagraphs and sub grounds. The prolix nature of the grounds are unhelpful to the efficient determination of the appeal. However, I will address each ground in turn.

"1. The respondent failed to accord the appellant natural justice or procedural fairness by relying upon or having regard to the confidential attachment ('the attachment') to the Final Report of the Inquiry into Obstetric and Gynaecological Services at King Edward Memorial Hospital 1990-2000 without informing the appellant that it had obtained a copy of the attachment from the Western Australian Department of Health, without informing the appellant that it intended to rely upon or have regard to the attachment, without providing a copy of the attachment to the appellant and without allowing the appellant the opportunity of calling evidence or making submissions concerning the contents of the attachment."

19 Subsequent to the hearing of the appeal the respondent provided the appellant and the Court with an edited copy of the confidential attachment to the Final Report of the Inquiry into Obstetric and Gynaecological Services at KEMH 1990 - 2000 ("the Douglas Inquiry"). The edited attachment will be admitted as evidence in the appeal as Ex 1. The attachment is entirely innocuous, consisting of one line containing the basic particulars of this matter. Whether or not the edited attachment should have been provided to the appellant, there is no material in it of any significance and which the appellant did not have the opportunity to call evidence or upon which he did not have the opportunity to make submissions.

21 It is unnecessary to set out in full this lengthy ground. In essence, it complains that the respondent failed to use, or palpably misused, its advantage as the primary trier of fact and erred by accepting as genuine and as a reliable contemporaneous record of what occurred on the morning of 30 November 1994 and, specifically, of what was discussed during the second telephone call, a page of notes written by [F] because:

(a) the notes were not made on an official form;

(b) of the manner in which they were written;

(c) of the fact that they were not made on the partogram, the official record of the labour of [A];

(d) they were not placed on the KEMH file but rather filed by [F] at his home; and

(e) [F] did not produce the notes until 13 May 2003, six days before the inquiry was due to commence, at which time [F] had been made aware that there would be a conflict between he and the appellant about the content of the telephone calls.

22 The respondent admits the appellant's allegations regarding the circumstances in which [F's] notes were taken and produced. The respondent submits in relation to this and many other grounds of appeal that there is no evidence that would justify me in disturbing the respondent's findings of fact. The respondent submits that there was evidence upon which it was entitled to rely to make its finding.

23 The notes in question are written on a blank antenatal foetal heart rate monitoring request form. They were not referred to by [F] in his evidence-in-chief. In cross-examination, when asked whether notes made on the partogram were the only contemporaneous notes he made, he said he made notes on "that bit of paper there" (AB 303, t/s 157). It appears that that evidence was a reference to the notes. Counsel for the appellant did not cross-examine on that evidence. Senior counsel assisting the respondent re-examined [F] about the notes to refute an allegation made to [F] during cross-examination that he had fabricated some of his evidence. The notes then became Exhibit 11. Thereafter counsel for the appellant was permitted to further cross-examine [F] about the notes. In substance, the respondent interpreted the notes to say:

"W[ar]d 4, Wed[nesday] 30/12/94.

[B]

1st Ph[one] call. 'I've never seen anything like it!'

VAGAL

?Atrophic!! [sic] talked about giving

2nd phone call. Like him to review

Just prior to 0800 both reviewed trace

BR - vagal

'I'm happy with it', said BR

B.R. Confident

I pointed out where I told.

phoned him and gave IV fluid."

24 The respondent believed the notes mistakenly said "Atrophic" instead of Atropine, the name of a drug. It seems to me that the notes do refer to Atropine.

25 The appellant's counsel put to [F] that the notes were a fabrication. This allegation was repeated in closing submissions to the respondent.

26 The respondent dealt with the reliability of the notes in the following way:

"[213] It is the submission of Counsel for the Practitioner that the Board should not rely on these notes as an accurate record of what occurred on 30 November 1994. He submitted that the notes are themselves 'extremely suspicious'. It was put to [F] that he wrote the notes because he was 'concerned about his own position' and that he wrote certain parts of the notes much later than he claimed in order to 'support [his] story in this case'. Both contentions were rejected by [F]. During the course of his cross-examination the Practitioner claimed that [F] had 'tailored his notes to suit his own purposes.' It is submitted that [F] did not explain satisfactorily why he had made the notes or why, having made them, he 'kept them amongst his private papers for eight and a half years' and had failed to produce them notwithstanding that he had been asked on three occasions since the tragedy to prepare a statement of what happened on 30 November 1994 and even though he must have appreciated that those who sought his assistance would have been interested to view any contemporaneous documentation he prepared. What is said by [F] to have occurred is, it is asserted, 'simply extraordinary'. It is contended on behalf of the Practitioner that it 'cannot be a coincidence' that [F] 'located' the notes for the first time six days before he was scheduled to give evidence and after he knew that a dispute existed between him and the Practitioner as to what was said during their telephone discussions and that 'it would assist his case if he had notes to corroborate his version of events'. The discovery of the notes during the Inquiry was described by Counsel for the Practitioner as a 'miracle'.

[214] [F] gave evidence concerning the preparation, storage and discovery of the handwritten notes. He was cross-examined at length about these matters. [F] informed the Board that on the morning in question he had written notes on a piece of paper, placed that paper in his pocket and that when he arrived home he filed it away in what he described as his 'litigation file' which, he claimed, everybody in obstetrics has. He wrote the notes not because he was concerned about his own position but because there had been a bad outcome. He said: 'whenever there's a case that doesn't work out well you - you quite often jot notes down'; 'if there has been an issue, you might jot a few notes'. At the time he wrote the notes he did not believe that 'the truth was being questioned'. It was not until he was provided with a copy of the written statement of evidence of the Practitioner two weeks prior to the commencement of the hearing of the Inquiry that he appreciated that a dispute existed between them as to what had transpired during the telephone conversations. It was at that point that he sought, again, to locate a copy of the handwritten notes. He found them at home in a 'litigation file'. He told the Board that he has two such files - one for 'business matters' and one for obstetrics. He said that he has a 'number of other businesses' and that he has 'well in excess of a couple of hundred files and a number of filing cabinets' in his 'incredibly large office at home'.

[215] At the time he was asked to write the report for the Executive Director of Medicine at King Edward Memorial Hospital for Women, Dr J A Cumming, [F] recalled having made the handwritten notes. He looked for them then. He looked in his 'litigation file' although he did not 'go through all the files'. He could not locate the notes. He rejected the suggestion that he had not made 'much of an effort' to locate the notes in 1999. He told the Board that, although he could not be 'absolutely sure' that he did, he 'believed' he made another attempt to locate the notes in mid-2000 when Freehill Hollingdale and Page asked him to prepare a statement in connection with the civil proceedings. His efforts again proved unsuccessful. [F] had not located the notes at the time he prepared his written statement of evidence for the purposes of this Inquiry. He said that he did not inform the solicitors assisting the Board of the existence of the notes when they approached him to provide a statement for the purposes of these proceedings. He did not look for them again at that stage. He thought he had lost them. It was when he learned two weeks prior to the commencement of the hearing of the Inquiry that the Practitioner was disputing what he said had transpired on the morning of 30 November 1994 he 'went back and searched just every possibility'. Although this was not the first occasion he had been asked to provide a statement concerning these events, it was the 'first time that [his] word had ever been questioned'. From the day he wrote the notes until just prior to the commencement of the hearing of this Inquiry there 'was never any question about [his] two phone calls that were clearly documented in the partogram'. At that time he then 'made an extensive search through [his] office and all the files'. He located the notes in his 'non-medical litigation file' 'where it was the whole time'. He did not find it in the file dealing with obstetric matters where he might have expected to locate it. His filing method had proved to be 'bad'. He telephoned those assisting the Board the day after he found the notes. It was on that day that he caused his secretary to type up a copy of the handwritten notes (ex 20) - a request that this be done having been made by Messrs Tottle Christensen, the solicitors assisting the Board.

[216] The handwritten notes of [F] are not comprehensive. They do not detail every matter which has proved to be relevant to these disciplinary proceedings. That is neither surprising in all the circumstances nor reason, in itself, to doubt their accuracy or the veracity of the oral evidence of [F] in relation to them. It might be thought that if the decision had been made by [F] to concoct the notes or portions of them they would have been far more extensive and detailed than they are.

[217] The grave allegations levied against [F] concerning his handwritten notes cannot be accepted and are properly to be rejected as without foundation. The Board does not believe that those notes were 'tailored' by him to facilitate any personal agenda or that any part of them was 'invented' or 'fabricated'. It finds that the notes were written by [F] contemporaneously with the events in issue and during the period he stated. It rejects the suggestion that the notes (or part of them) are a recent compilation.

[218] Having evaluated closely the substance and manner of [F's] evidence concerning the preparation, storage and discovery of the handwritten notes, the Board is satisfied that events in relation to them unfolded as he contends. It accepts the submission of Senior Counsel assisting the Board that the explanation provided by [F] in relation to this matter has the 'ring of truth'. The Board is persuaded that the handwritten notes may be considered a reliable contemporaneous record of what occurred on the morning of 30 November 1994 and, specifically, of what was discussed during the second telephone conversation at 7.10am."

27 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] - [28] a majority of the High Court referred to the dichotomy between the appellate obligation to conduct an appeal by way of rehearing and the appellate obligation to conduct that rehearing with restraint and respect to the advantages of a trial Judge (in this case the respondent Board), "especially where their decisions might be affected by their impressions about the credibility of witnesses whom the trial Judge sees but the appellate court does not." The Justices said that the mere fact that a trial Judge preferred the witnesses for one party over the witnesses for another cannot prevent the performance by a Court of Appeal of its functions.

28 In this case the respondent considered the allegations of fabrication made by the appellant as well as [F's] explanation for not having produced the notes earlier. Having regard to that evidence and the manner in which he gave it, the respondent found that it believed [F] on this issue and that the notes were a reliable and contemporaneous (albeit incomplete) record of what occurred on the morning of 30 November 1994.

29 There is nothing in the respondent's reasons for decision which satisfies me that the respondent "failed to use or palpably misused its advantage" as the Tribunal of fact. It was required to determine whether [F's] explanations were credible. It did so by applying logic and commonsense to [F's] explanations and assessing [F's] manner of giving evidence. It concluded, as it was clearly entitled to do, that it believed [F] and rejected the appellant's allegations of fabrication.

30 After performing the same task and giving due weight to the respondent's findings on the credibility of [F], I do not arrive at a different view. Whilst I accept that it would be unusual for a practitioner to take relevant notes home and not leave, at the very least, a copy of them on the hospital file, [F's] explanations as to why he did this and how the notes were filed and not located by him, I find to be plausible. Most persuasive, to my mind, is the nature of the notes themselves. They are not complete and are not entirely supportive of [F's] evidence. For example, they do not record that in the first telephone conversation he asked the appellant to come in and see [A]. The brief, messy and incomplete nature of the notes weighs heavily in favour of their genuineness.

32 This ground is a wholesale attack on the respondent's acceptance of [F's] evidence. It lists 20, what appear to be, reasons why the respondent failed to use or palpably misused its advantage as the trier of fact in accepting [F's] evidence. Some of those reasons relate to discrete issues whilst others relate to the totality of his evidence. It was not suggested to me that any one of the complaints was sufficient to determine this ground of appeal. It seems to be the appellant's submission that if he makes good some number of the allegations then that would be sufficient for me to come to a different view of [F's] credibility. It does not seem to me that I can adequately deal with the reasons other than to address each one in turn.

33 However before turning to the individual complaints it is relevant to note that [F's] credibility on two issues only was crucial to the respondent's findings. The first critical finding is that during [F's] telephone conversation with the appellant at about 6.30 am on 30 November 1994, [F] told the appellant that he wanted him to attend and review [A's] trace. The second critical finding is that during [F's] telephone conversation with the appellant at about 7.10 am on 30 November 1994, [F] asked the appellant to attend as quickly as he could to review the trace.

34 Whilst the respondent's view of [F's] credibility in general was likely to affect its view on his credibility in respect to these two important issues, it must be borne in mind when considering the individual complaints that findings with respect to peripheral matters may not play any or a large part in influencing the findings on the critical issues.

35 Also, the appellant complains that the respondent made its findings based solely on its assessment of the demeanour of [F] without regard to the content of the contemporaneous notes which [F] made on the KEMH official record or the evidence of other witnesses.

36 I do not accept this complaint. The respondent appropriately identified the issue in respect to par 1A(a) of the amended notice of inquiry relating to the first phone call as whether [F] asked the appellant to attend and review the trace. It then acknowledged the opposing views, being that [F] said he did make the request and the appellant said that [F] did not make the request. The respondent then set out the evidence of both [F] and the appellant (AB 81 - 83, RFD [116] - [119]). It then dealt with the appellant's submission that there was no "objective" evidence to support [F's] evidence that he asked the appellant to attend during the 6.30 am telephone call. The respondent then considered the partogram and [F's] explanation for why he did not make an entry on it to this effect. That consideration took five pages of the reasons for decision. After consideration of other criticisms of [F's] evidence, raised by the appellant, the respondent expressed the view that it accepted [F's] evidence on this issue.

37 The respondent then acknowledged that this finding was notwithstanding the evidence of [C] concerning the first telephone conversation (AB 95, RFD [141]). It analysed [C's] evidence about the telephone call and concluded that it was not clear, from her evidence, that she was asserting that she overheard the whole of the first call. It found that if her evidence was accurate it suggested that "she may have been absent for part of what [F] communicated even if she witnessed the conclusion of the conversation" (AB 96, RFD [142]). Presumably for that reason, the respondent concluded that the submission advanced on behalf of the appellant, being that on the basis of the evidence of [C] standing alone (or in combination with the other matters referred to) it should not be found that, during the 6.30 am telephone conversation, [F] asked the appellant to attend and review the trace, could not be accepted (AB 96, RFD [143]).

38 The respondent followed a similar process in respect to the second call. It recited the evidence of the appellant and [F] (AB 126, RFD [205] - [207]). It then referred to its analysis of [F's] explanation for the absence of notations on the partogram to requests for attendance (AB 129, RFD [209]). The respondent then turned to [F's] notes. In the manner I have described earlier, it accepted that they were a "reliable, contemporaneous record of what occurred on 30 November 1994 and specifically of what was discussed during the second telephone conversation at 7.10 am". Then, after considering other attacks on the veracity of [F], the respondent considered [F's] evidence in light of the evidence of [G] (AB 135, RFD [224] - [225]).

39 Therefore, I conclude that it is not correct to say that the respondent did not consider [F's] evidence in light of the documents, particularly the partogram, and other evidence. I will return to the issue of the respondent's consideration of the appellant's evidence.

40 I now turn to the specific complaints about the respondent's analysis of [F's] evidence:

"3. The respondent failed to use or palpably misused its advantage as the primary trier of fact and erred by accepting the evidence of [F] when:

(a) [F] claimed repeatedly during his cross-examination that he had a 'vivid' recollection of the events the subject of the inquiry which he said were 'etched in his memory' notwithstanding that those events had occurred approximately 8½ years before he gave evidence and he had attended hundreds if not thousands of other labours during that time;"

41 The appellant's submission is that [F's] claim to remember the relevant events so clearly is contrary to common sense and improbable. In support of this submission he cites an unreported decision of a single Judge of the Supreme Court of New South Wales, Dunning v Scheibner, unreported; SCt of NSW; Library No 13776; 15 February 1994. Such a decision is of limited value and of no persuasive authority. In that case, the trial Judge decided that a doctor's claim to have a clear recall of routine conversations which she had with the plaintiff occurring 10 years ago was "extraordinary and improbable". This is merely one trial Judge's view of particular evidence given in a particular trial and can be no more than an example of what one tribunal of fact may decide about a witness's recollection. It does not, in my view, indicate that that is the required view to take of a witness who claims to have a very good recollection of, in this case, significant events that occurred some time ago. Such a claim must be evaluated in light of all the circumstances including the events that have occurred in the intervening period. In this case the respondent was entitled to, and did, take into account that [F] had been spoken to by senior staff on the same morning about the events, had made notes about them that morning and had given statements about them to various people over the intervening years. In my view the respondent was entitled to accept that [F] had the clear recollection of the events as he claimed. The problems which [B] had at birth were a further reason why the incidents of that morning would stay in [F's] mind. I do not find [F's] claim to have a vivid recollection to be implausible. Indeed I find the claim to be consistent with the significance of the events.

"(b) [F] claimed to have asked the appellant during the first call to come to KEMH to review the trace but made no note of such a request either on the partogram, or in the notes;"

42 As I have already indicated, this issue was considered in some detail by the respondent from [122] through to [131] of its reasons for decision. It was clearly entitled to come to the view that it did about the omission. I am not prepared to differ from that view, based as it is, in part, on the respondent's view of [F's] credibility. After reviewing the partogram, the notes and the type of notes made on them I am not persuaded that it was appropriate to record on them a disagreement between [F] and the appellant about the appellant's attendance at the hospital.

"(c) [F] purported to explain his failure to note on the partogram that, during the first call, he had requested the appellant to attend KEMH to review the trace and that, during the second call, he had again requested the appellant to attend KEMH to review the trace and asked him to attend as quickly as he could, by saying that the appellant was his superior at KEMH and that if he had noted those requests on the partogram and those notes had later been seen by the appellant that could have jeopardised his future employment at KEMH;"

43 This matter was again considered in detail by the respondent as part of its consideration of the absence of any notation regarding a request for the appellant to attend the hospital at 6.30 am. The respondent considered [F's] explanation in light of evidence received from Dr McKenna that as a junior registrar under the supervision of the appellant he had never found the appellant to be unapproachable or difficult to deal with, although he had had disagreements with him. The respondent also took into account Dr McKenna's evidence that he had never been asked by the appellant to review one of his private patients. Thus Dr McKenna had never been in the situation in which [F] found himself to be in on the morning of 30 November 1994; that is considering whether to write critical comments about the appellant on his private patient's partogram.

44 I would be particularly loath to contradict the respondent's findings after its consideration of this issue as it seems to me to involve a consideration of the protocols that are present in a public hospital when a registrar is asked to review the private patient of a senior practitioner. Thus the views of a professional Tribunal should be given considerable weight: De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274 at [17].

45 The findings are also based on the respondent's view of [F's] credibility. As there is no incontrovertible evidence which undermines these findings I am not prepared to find that the appellant was wrong in respect to them.

"(d) [F] claimed during cross-examination that inter alia [D] had asked him at about 6:20 am on 30 November 1994 to look at the trace and told him that [A] was a private patient and needed to be reviewed urgently but in a letter to Dr Cumming, dated 14 April 1999 ('the letter to Dr Cumming'), a proof of evidence prepared and signed by him in June 2000 ('the June 2000 proof of evidence') and his evidence-in-chief, he had not mentioned that [D] had spoken to him at all at about 6:20 am on 30 November 1994;"

46 This seems to me to be a matter of detail and not a matter that would be likely to affect the respondent's, or does effect my, view of the credibility of [F]. Nor does it affect my view of [F's] credibility.

"(e) [F] claimed during cross-examination that when he looked at the trace at about 6:20 am on 30 November 1994, he considered that the pattern shown on the trace:

(i) indicated decreased variability in the fetal heart rate;

(ii) was very sinister;

(iii) indicated that there was severe fetal compromise; and

(iv) was one of the worst he had ever seen

but made no note to any of those effects on the partogram or in the notes, did not say anything to any of those effects to the appellant when he spoke to him during the first and second calls and did not say anything to any of those effects in the letter to Dr Cumming, the June 2000 proof of evidence or in his evidence-in-chief;"

47 The respondent rightly considered the main issue to be whether [F] had been inconsistent in his evidence that he had asked the appellant to attend the hospital in the 6.30 am telephone call (AB 93, RFD [138]). In this respect the respondent found that [F] had been consistent since at least 14 April 1999 when his report to Dr J A Cumming had been made.

"An unusual trace base line 120 dropping acutely in between contractions."

49 What can be seen is that [F] wrote what he saw on the trace. I accept that [F's] view that the partogram was not the place for him to write his views as particularised in this ground but rather to record what he saw on the trace, particularly as he was a junior registrar reviewing a private patient of a senior obstetrician, is plausible. This was the approach adopted by the midwives as well.

50 As to what [F] told the appellant, the point was made by [C] that, although she did not overhear [F] tell the appellant that the trace showed what she calls "classic lates", he none the less "stated exactly what was on the trace" (AB 223, t/s 78). The respondent found [F's] failure to articulate his opinion to the appellant in the telephone conversation at 6.30 am but rather to state what was on the trace and to request the appellant to attend to review [A] to be reasonable. I agree. If the appellant had wanted [F's] view or felt that [F] should give it, he would have asked him to do so.

"(f) [F] claimed that, during the first call and before he had had an opportunity to tell the appellant everything he had wanted to tell him about the trace and, in particular, that the trace was sinister, the appellant had hung up the telephone, but did not say that or anything to that effect in the letter to Dr Cunningham, the June 2000 proof of evidence or his evidence-in-chief."

51 The respondent dealt with this issue at [130]. The respondent found it plausible that the appellant would have hung up in the sense that he had ended the discussion with [F] abruptly. In considering this issue the respondent considered the appellant's evidence that he could not recall how the first conversation with [F] ended and he could not remember having hung up on anyone. He said that he would not have issued orders in that manner. The respondent accepted that [F's] view that the appellant had hung up on him left open the possibility that [F] had that impression simply because the appellant had finished what he had to say and had then hung up. In my view this finding was entirely open to the respondent and would have had little bearing, in any event, on the final view as to whether [F] was truthful and reliable when he said that he had asked the appellant to come in to review [A].

"(g) after having said that the appellant had hung up the telephone during the first call before he ([F]) had had an opportunity to tell the appellant that the trace was sinister, [F] claimed that what he had told the appellant during the first call had in effect described a sinister trace;"

52 It appears to be accepted that what [F] told the appellant in the first telephone conversation was what was written on the partogram, including that the trace was "unusual". Whether [F] believed that what he in fact described was "a sinister trace" or not appears to matter little. [F] was called as a witness of fact. The respondent relied upon the evidence of Dr McKenna and Associate Professor Dickinson in relation to matters of expert opinion. The appellant did not articulate how [F's] opinion that what he described was a sinister trace reflected on his credibility.

"(h) [F] claimed that, during the first call, he had told the appellant that the baseline of the fetal heart rate as shown on the trace was 120 beats per minute but would drop acutely down to about 80 beats per minute and stay there until the next contraction but:

(i) his note on the partogram at 6:30 am was only to the effect that the baseline was 120 beats per minute dropping acutely between contractions;

(ii) he made no note to any such effect in the notes;

(iii) in the letter to Dr Cumming and the June 2000 proof of evidence and his evidence-in-chief, he said only that he had told the appellant that the baseline was 120 beats per minute but was dropping acutely between contractions;

(iv) the appellant said in his evidence that, during the first call, [F] had told him only that the fetal heart rate seemed to be approximately 120 beats per minute but it was dipping acutely between contractions;"

53 Whether [F] told the appellant that the baseline of the foetal heart rate as shown on the trace was 120 beats per minute, dropping acutely to about 80 beats per minute and staying there until the next contraction, or was 120 beats per minute but was dropping acutely between contractions is a matter that would have little weight in the respondent's consideration of [F's] credibility on the essential issue as to whether he was telling the truth as regards his alleged request to the appellant to review [A]. In respect to this first phone call the respondent considered what the appellant's response should have been on the basis that he had been told that the trace was unusual, or on the basis that he had been told that the trace was unusual and was asked to attend to review the patient. Whether [F] told the appellant that the heart beat dropped acutely between contractions or dropped to 80 between contractions was, as I have said, not a significant issue. Further, to the extent that it is relevant, it reflects adversely upon the appellant. His submission appears to be that without this extra information he could not be expected to appreciate the seriousness of the situation. This begs the question as to why he did not seek to clarify with [F] the appearance of the "unusual" trace. If, as it seems he did not, it suggests to me, that he was not paying appropriate attention to [F's] comments.

"(i) [F] claimed during cross-examination that when, during the first call, he had described the trace to the appellant and the appellant had said that the trace sounded vagal, he ([F]) had disagreed with the appellant and had told him that, in his opinion, it was not a vagal trace but:

(i) in his notes on the partogram and in the notes, [F] made no note of his alleged disagreement with the appellant during the first call; and

(ii) in the letter to Dr Cunningham, the June 2000 proof of evidence and his examination in chief, [F] made no mention of his alleged disagreement with the appellant during the first call;"

54 This matter does not receive specific treatment in the respondent's reasons for decision, although the respondent does deal with what is said to be "numerous inconsistencies" in the evidence of [F], as compared to his previous statements about the matters (AB 91 - 94, RFD [133] - [140]).

55 The appellant, in his evidence, acknowledged that he told [F] that the trace "sounded like a vagally mediated pattern typical of cord compressions". His opinion was that intermittent cord compressions are normal in 90 per cent of labours and not usually dangerous (AB 1014). Thus, the only issue between the appellant and [F] was whether [F] had told the appellant that he did not agree with this view. At t/s 216 [F] gave evidence that the appellant told him that the trace sounded vagal and that he disagreed with him. He said the reason why the appellant decided against giving the drug Atropine was because he told the appellant that it did not look vagal to him. Whereas the appellant said that he decided not to give Atropine because, on the basis of [F's] description of the trace, he did not think that it was necessary (AB 1015). In my view this appears to be a minor disagreement, if the word disagreement is appropriate at all, between the appellant and [F] as to what was said during the telephone conversation and it is not surprising that the respondent did not see fit to refer to it in detail.

56 The relevance of this part of the telephone conversation is that foetal heart decelerations are generally a normal physiological response through the vagal nerve. The appellant said that they occur in 90 per cent of labours. Associate Professor Dickinson said that more than 70 - 80 per cent of foetuses will demonstrate variable decelerations in labour. They can be, but are not usually, of concern. Whereas late decelerations, that is decelerations which occur after the peak of a contraction, are caused by foetal hypoxia and are a serious problem. Associate Professor Dickinson testified (AB 719, t/s 578):

"In a foetus there's a balance between the sympathetic nervous system, which will increase the heart rate, and the vagas nerve, which will decrease it. As a foetus gets older it gets more vagal dominance. You can block the vagas nerve with Atropine, which we do experimentally, but unless you've got direct toxic effects upon the foetal heart, all decelerations are mediated by the vagal nerve, that's why the heart rate goes down."

57 Associate Professor Dickinson said all foetal heart rate decelerations are mediated by the vagal nerve except in one case where there is a direct acidemic effect upon the foetal myocardium. Experimentally Atropine has been used to block the vagus nerve. If the decelerations persist after that then it is an indication that there is a direct insult to the foetal heart. However, she said that it is not something that "we" would use in clinical practice but rather it indicated to her that the appellant and [F] were thinking about the cause of the decelerations. Thus, the reference to a vagal trace would have been a reference to a normal vagally mediated pattern.

58 In her opinion, which I accept, the fact that [F] told the appellant that the trace was unusual and he had never seen one like it before would "be very suggestive" of an abnormal trace (AB 703, t/s 562). Thus it seems to me that whether [F] expressly told the appellant that he disagreed with his thought that the decelerations were vagal or whether he merely told him the trace was unusual and he had never seen a trace like it before, he was communicating the same message to the appellant. That message was that the decelerations were not the normal vagally mediated decelerations usually seen on a trace. This is not a conclusion which assists the appellant.

59 As to the absence of a note of the alleged disagreement from the partogram, there is no reference in the partogram to this part of their conversation, even though the appellant admits that they discussed whether the decelerations were vagal and whether Atropine should be given. Thus, it is not significant that there is no reference in the partogram to [F] disagreeing with the appellant over the issue. If [F] had decided not to mention the subject at all in the partogram it would not have made sense for him to refer to the alleged disagreement.

60 As to the absence of any reference to the alleged disagreement in [F's] letter to Dr Cumming in June 2000, that letter is a summary only of the events of the morning of 30 November 1994. The summary is in a large font and consists of only 31 lines. It covers events from the first telephone call through to the conversation that [F] had with the appellant upon his arrival at the hospital at 7.55 am. It does not seem to me to be significant, and it was not to the respondent, that this brief summary does not contain a reference to the reason why the appellant decided not to give Atropine. This whole issue is covered in one sentence being: "He said that it sounded vagal and talked about giving Atropine but Dr Roberman decided against it".

"(j) [F] claimed, during cross examination, that, during the first call, he had asked the appellant twice to come to KEMH to review the trace but, in the June 2000 proof of evidence and his examination-in-chief, he said that he had asked the appellant only once during the first call to come to KEMH to review the trace;"

61 [F's] statement, which stood as his evidence-in-chief, said that he telephoned the appellant at home and "asked him to come in and review the CTG trace" (AB 972). The respondent makes the point that the statement does not say that he only asked the respondent to do this once during the telephone call. Consequently, although his statement was open to interpretation in the manner alleged by the appellant, it was not the only interpretation that was available. It does not seem that any adverse inference could be drawn against [F] because the appellant interpreted the statement in one way rather than the other. The respondent made its findings on the basis that [F] had asked the appellant to come into KEMH. Whether a second request was made was not determinative of its decision.

"(k) [F] claimed, during cross-examination, that when, during the first call, the appellant had instructed him to cause one litre of fluid to be administered to [A], followed by a further litre of fluid, he ([F]) had considered that such treatment was inappropriate and would be ineffective but had been unable to express that view to the appellant because the appellant had hung up the telephone but:

(i) made no note of his alleged opinion or the appellant hanging up the telephone on the partogram or in the notes;

(ii) made no mention of his alleged opinion or the appellant handing up the telephone in the letter to Dr Cumming, the June 2000 proof of evidence or his evidence-in-chief;"

62 The issue of the appellant hanging up the telephone has been dealt with earlier. As to [F's] failures to note on the partogram and in his letter to Dr Cumming that he thought that the fluid treatment was inappropriate and would be ineffective, I make the same comments as I have made in respect to grounds of appeal 3(e) and 3(i).

"(l) [F] claimed, during cross-examination, that when, during the first call, he had questioned the appellant's opinion about the case and had asked him to come to KEMH to review the trace, the appellant had become angry with him, but made no mention of the appellant's alleged anger in the letter to Dr Cumming, the June 2000 proof of evidence or his evidence-in-chief;"

63 I would make the same comments with respect to this issue as with respect to ground of appeal 3(i). In addition, whilst [F's] letter to Dr Cumming does not specifically say that the appellant became angry it expresses that there was a clear disagreement between them. The relevant part of the statement says:

"He said that it sounded vagal and talked about giving Atropine but Dr Roberman decided against it. I informed him I was unhappy and concerned about the CTG and would like him to review it. He repeated I was to follow his orders and to give intravenous fluids which I did also administering oxygen and changing the patient's position."

The inference I draw from this part of the statement is that [F] had to some extent contradicted the appellant and the appellant was insistent that his orders were to be followed. Consequently whilst the appellant need not have been angry, the inference is that there was a disagreement between [F] and the appellant.

"(m) [F] claimed, during cross-examination, that, during the first call, the appellant had expressed concern that [A] might be hypervolaemic after having been administered an epidural injection; but:

(i) at the time of the first call, [A] had not been administered an epidural injection;

(ii) [F] made no note of the appellant expressing any such concern in either the partogram or the notes; and

(iii) [F] made no mention of the appellant expressing any such concern in the letter to Dr Cumming, the June 2000 proof of evidence or his evidence-in-chief;"

64 This issue is dealt with specifically by the respondent at [136].

65 Whether or not the appellant considered that [A] may have been hypervolaemic is not an important substantive issue. To the extent that [F's] evidence was contradicted by the hospital records, this issue is considered by the respondent and it concludes that [F] ultimately acknowledged that, contrary to his earlier statement, the trace did record that the epidural was given after the time of the first telephone discussion. However [F] maintained that the appellant had still been concerned about hypervolaemia. There does not seem to have been any dispute that the treatment for hypervolaemia is intravenous fluids which is the treatment that the appellant then prescribed. The respondent concluded that it was not persuaded that [F] had attempted to mislead it about this matter or that what he said in relation to it cast doubt upon his evidence generally or, specifically, on his claim that he asked the appellant to come in during the 6.30 am call. This finding was clearly open to the respondent. It was a view in part based upon the medical significance of hypervolemia and the timing of the epidural. Thus, it was a matter about which the respondent was in a better position than I to determine. I am not in a position to say that the respondent was wrong in respect to this issue.

"(n) under cross-examination, [F] conceded that the appropriate action to be taken when it was thought that a fetus was severely compromised was to deliver the fetus as a matter of urgency but, although he claimed that when he first saw the trace between 6:20 am and 6:30 am on 30 November 1994, he believed it showed that the fetus was severely compromised:

(i) he did not say to any of the midwives in attendance that the fetus needed to be delivered urgently;

(ii) he took no steps to have the fetus delivered urgently;

(iii) he took no steps to arrange for the attendance of a consultant paediatrician at the delivery;

(iv) he did not say to the appellant during either the first call or the second call that, in his opinion, the fetus needed to be delivered urgently;

(v) he made no note in either the partogram or the notes to the effect that the fetus needed to be delivered urgently;

(vi) he did not say in the letter to Dr Cumming, the June 2000 proof of evidence or his evidence-in-chief that, at any time between 6:20 am and 7:55 am on 30 November 1994, it was his opinion that the fetus needed to be delivered urgently;"

66 This matter was not specifically dealt with by the respondent.

67 Following his evidence in respect to the concern about hypervolaemia, the following cross-examination of [F] took place:

"MR LEY: ... Your view was that it was a terrible trace, severely compromised foetus, a couple of litres of fluids is not going to help, you need to deliver the child don't you?

"F": Yes.

MR LEY: But you never said that to him?

"F": I asked him to come in and review and on his review ---

MR LEY: You did not say to him: we should deliver the child?

"F": No.

MR LEY: And you didn't do it yourself did you?

"F": It was a private patient, if as a level 1 registrar I had sectioned that lady - it is totally inappropriate, unacceptable - it would - I couldn't possibly do that in those circumstances."

68 Later in the cross-examination he was asked why he did not consult the senior obstetrics registrar on duty that evening. He said:

"That would have never have happened, if I rang the consultant on that night for a private patient of Dr Roberman, it is - it was - that is the wrong thing to do, it is not the hierarchical response you - you go through when you are notifying someone for a private case."

"There are still concerns of hypervolemia. A standard response to foetal distress is to give intravenous fluids, fluid and change the position of the patient. That is what we did. So while Brian had given me his orders, I was following his orders, before I consider ringing anybody else.

...

It was - I - I - this question has haunted me, what else could I have done? I asked another consultant within 24-hours what I could have possibly have done, on that day and they said: You had no choice, it was a private patient."

70 Given that [F] was the junior obstetrics registrar, the appellant was very much senior to him and [A] was his private patient, it is not surprising, although it may well be regrettable, that [F] took no steps to have [B] delivered urgently. Whilst the respondent did not refer to this issue expressly, in its reasons for decision it did say, in respect to [F's] credibility,:

" ... although not every single matter raised by counsel for the [appellant] in relation to the evidence of [F] has been mentioned expressly in these reasons for decision, the Board has considered each of those said to be indicative of a lack of veracity generally on the part of [F] and, specifically, to cast doubt on his claim that requests for attendance and a review were made by him in each telephone conversation with the practitioner. It is unnecessary to document in detail every issue of dispute which emerged between [F] and the practitioner or every inconsistency said to exist between the evidence of [F] and other evidence. The Board believes the evidence of [F] in relation to the critical question whether he asked the [appellant] to come in to review the [trace]."

I accept that this matter was considered by he respondent and it did not alter its view about the credibility of [F].

71 Further, it is not entirely clear to me what point the appellant seeks to make from this issue. If it is merely that the respondent should have doubted [F's] evidence that he was very concerned about [A] and [B] as a consequence of the trace because he did not make attempts to have [B] delivered, then it seems to me that it has to be taken into account that [F] rang the appellant twice to discuss a trace, the likes of which he had never seen before, and the midwives gave evidence that they too were very concerned about [A] and [B]. It seems likely that whatever view they held was also held by [F]. Whether he communicated this clearly to the appellant is a different question.

72 If the appellant is submitting that [F's] actions or inactions in failing to have [B] delivered earlier were professionally negligent, then this was not an issue which was identified as an issue and upon which the respondent heard evidence. Consequently it was not appropriate for the respondent to make any finding about it.

73 The allegation that [F] failed to tell Dr Cumming that he believed that [B] needed to be delivered urgently is met with the same comments that I made in respect to ground of appeal 3(i).

74 The absence of this evidence from the statement which stood as [F's] evidence-in-chief is, in my view, not important. His statement records that he had told the appellant that he had never seen anything like the trace and that after he administered the treatment prescribed by the appellant he "remained very concerned about the [trace]". Given that the statement was prepared for these proceedings it is not surprising that it deals primarily with his and others' words and actions, not with his opinion as to whether he should or should not have taken different action.

"(o) [F] claimed, during cross-examination, that, during the second call, he had told the appellant that he was then very unhappy with the trace but:

(i) his note in the partogram was only 'trace continues to look unusual';

(ii) he made no note to that effect in the notes;

(iii) he did not say in either the June 2000 proof of evidence or his evidence-in-chief that he had said that or words to that effect to the appellant during the second call;

(iv) at a subsequent point in his cross-examination, he conceded that what he had actually said to the appellant during the second call was that the trace continued to look unusual;

(v) in his evidence, the appellant did not say that, during the second call, [F] had told him that he was very unhappy with the trace and said that, during the second call, [F] did not sound concerned about the situation of [A];"

75 The comments that I have made in respect to ground of appeal 3(e) apply also to this paragraph.

76 Again, I am not sure of the point that the appellant is making. If it is merely that [F] should not be believed when he says that he told the appellant that he was very unhappy with the trace during the second phone call, then whether he said that he was very unhappy with the trace or that it was unusual does not seem to me to matter much. The significant matter for the respondent was that [F] requested the appellant to attend to review [A], in circumstances where [F] was expressing to him uncertainty about the trace.

77 If the appellant is suggesting that [F] should not be believed when he says that he was dissatisfied, in some manner and however expressed, with the trace then I would not be prepared to accept this submission. It seems highly unlikely in a circumstance where [F] made two notes on the partogram to the effect that the trace looked unusual, that the midwives told him that they were concerned about it and [F] made two phone calls to the appellant that [F] was not dissatisfied about the trace and, thus, about the welfare of [A] and [B]. Whether or not the appellant thought that [F] sounded concerned about the situation, there seems little doubt that [F] was so concerned.

"(p) [F] claimed to have asked the appellant, during the second call, to come to KEMH to review the trace and, after the appellant had agreed to do that, to have asked the appellant to come to KEMH as soon as could but made no note of either request in the partogram, noting only 'He (the appellant) will be in soon to review the trace' and noted in the notes only 'like him to review'."

78 I have already mentioned the types of notes that are written in the partogram. They are very brief. The note written by [F] at 7.10 am states:

"Trace continues to look unusual. Abrupt deceleration after contraction lasting until the next contraction. Dr Roberman feels this is vagal. He will be in soon to review trace."

The fact that there is no mention in this note of [F's] request to the appellant to come into see [A] but only the result of such request, that is that he would be in soon, was not significant to the appellant and it is not significant in my view either.

79 The respondent, having concluded that [F's] notes were contemporaneous and reliable, was entitled to take into account that next to the words "2nd phone call" [F] had written "like him to review". Whilst this was written after the birth of [B] and thus after the discovery of [B's] problems, it was written so shortly afterwards that the respondent was entitled to conclude that it countered any allegation made to [F] that he had fabricated his evidence that he had asked the appellant to review [A].

"(q) [F] claimed that after he had asked the appellant, during the second call, to come to KEMH as soon as he could, he expected the appellant to arrive at the KEMH Labour Ward within 10 minutes of the second call, or at about 7:20 am but:

(i) he made no attempt to contact the appellant at any time between the time of the second call and 7:55 am, when the appellant arrived in [A's] room to review the trace;

(ii) he said that he spent the whole period of 45 minutes from the time of the second call to 7:55 am pacing up and down near the lifts in the Labour Ward at KEMH anxiously waiting the appellant's arrival;

(iii) said subsequently that he had spent some of the 45 minutes seeing some public patients on the Labour Ward;

(iv) said nothing to the appellant when he arrived about his failure to attend promptly following the second call;"

80 The respondent points out that [F] did not say that the only thing he did between the second phone call and the appellant's arrival was pace up and down near the lifts. Although [F] agreed that whilst he was awaiting the appellant's arrival he was pacing up and down the lifts and that he did that for 45 minutes (AB 381, t/s 240), he also said that (AB 380, t/s 239):

"Well, if he's on his way, what - what good is ringing. His last words to me: that he's on his way, so ringing him is not going to hurry it, it's just going to, you know, - I thought he would be there, you know, so I was out, you know, walking in front of the lifts, I was walking to the front desk: have you see Brian, you know, making sure I didn't miss him as he come [sic] into the labour ward."

81 At another point in his evidence he said that he caught up with the appellant "outside the room" and that in the meantime he had been seeing other public patients.

82 [F] said in his evidence that he was expecting the appellant to arrive at any minute. Additionally, he had patients other than the appellant's private patient to attend to. It does not seem to me to be surprising that given his belief and his other duties that he did not make a further call to the appellant. He was clearly expecting the appellant to arrive shortly.

83 Further, it seems very unlikely that a junior registrar in [F's] position would reprimand the appellant for failing to arrive earlier. This is particularly so in the circumstances that they then found themselves in, that is attending to the urgent delivery of [B]. [F's] evidence makes it clear that whilst he did not reprimand the appellant for his late arrival he did express to him the concern he felt over the trace and told him that that was why he had rung him (AB 388, t/s 247).

"(r) [F] claimed that when the appellant saw the trace for the first time, at about 7:55 am on 30 November 1994, the appellant had said words to the effect that he was happy with the trace, that he was confident about the trace and that, in his opinion, the trace showed a vagally mediated pattern but:

(i) [F] had claimed that he, as a junior registrar at KEMH with much less training and experience in obstetrics and fetal monitoring than the appellant, had recognised the trace as sinister and indicating severe fetal compromise from the time he had first seen it at about 6:20 am on 30 November 1994;

(ii) Dr Mark McKenna, an obstetric consultant who was called to give evidence by the respondent ('Dr McKenna') gave evidence that at around 7:50-7:55 am on 30 November 1994, the trace showed prior concerning features so that there should have been a level of disquiet about fetal wellbeing;

(iii) Associate Professor Jan Elizabeth Dickinson, an expert in maternal fetal medicine, who was called to give evidence by the appellant ('Associate Professor Dickinson') gave evidence that when the appellant first saw the trace, at about 7:55 am on 30 November 1994, the pattern on the trace was severely abnormal;

(iv) Dr McKenna gave evidence that a consultant with the appellant's expertise and experience would have been able to identify the concerning features on the trace at 7:55 am on 30 November 1994;

(v) Associate Professor Dickinson gave evidence that the appellant, whom she knew to be very skilled at reading fetal monitoring, would have been able to interpret the trace as being severely abnormal 'in a second' when he saw it at about 7:55 am on 30 November 1994;

(vi) [G], the midwife who was attending [A] at about 7:55 am on 30 November 1994, did not say in evidence that when the appellant saw the trace at that time he said words to the effect that he was happy with the trace, that he was confident about the trace or that it showed a vagally mediated pattern;

(vii) the appellant gave evidence that when he first saw the trace at about 7:55 am on 30 November 1994, it was perfectly clear to him that it indicated severe fetal compromise;"

84 In respect to this allegation it is important to note that the issue is what the appellant expressed to [F] not in fact what he really felt about the trace. He may have well appreciated that it indicated severe foetal compromise and not communicated this to [F] or the midwives who were present.

85 The respondent does not take any issue with the description of [F's] evidence in this paragraph. The appellant in his evidence-in-chief did not say that he communicated his concerns about the trace, when he finally saw it, to anyone until he spoke to a Dr Hagan at 8 am. He said that at that time he explained the "critical situation" to Dr Hagan. Dr Hagan did not give evidence.

86 [A's] statement does not say that the appellant said anything to her about her or [B's] condition when he arrived at about 7.55 am. She says that it was shortly after [B's] birth that she was advised that he had brain damage and she believes that it was Dr Hagan who informed her of that. She said that at a later consultation in the appellant's room he told her that the baby must have been born with the cord around its neck.

87 [G's] evidence-in-chief was to the effect that she was present when the appellant entered the labour room. He asked her about the paper speed of the trace, said he thought the decelerations were variables and then told her to give [A] a "top up and to let the head come down". He then left the room. In cross-examination (AB 546, t/s 336) she said she vividly recalled [F] coming into the room shortly after the appellant. She testified that she did not believe that the decelerations were variables (AB 548, t/s 338) and that that was obvious from the trace. She said that she advised the appellant that she disagreed with him. On the partogram [G] wrote:

"SB (seen by) [the appellant] at time of VE, 0755.

Variable decelerations noted on trace, give top up and continue."

88 This evidence is consistent with the evidence of [H] who said that when the appellant came out of the room she went in and [G] told her that the appellant had said that the decelerations on the trace were variables and to top up the epidural and let the baby's head come down. [H] also said that she saw the appellant and [F] come out of the room and they were chatting but not with disturbed voices. She said that [F] started talking about other problems in the delivery suite as the appellant was the consultant on call for the unit.

89 It was open for the respondent to accept the evidence of the witnesses, other than the appellant, that when the appellant arrived and spoke to the midwives and [F] that he did not disclose to them what he says were his then grave concern for [B] as a consequence of what he saw on the trace. Indeed the preponderance of evidence was against the appellant. Whether he said that he was happy with the trace, that it was a vagally mediated pattern or showed variables (that is, they were the usual decelerations seen in labour) does not seem to matter much. [A's], [F's], [G's] and [H's] evidence was all consistent in this respect. Not only did the appellant not tell them about his alleged concern. On the contrary, he pretended as if everything was proceeding normally.

"(s) [F] claimed, during cross-examination, that when the appellant said he was happy with the trace, that he was confident about the trace and that, in his opinion, the trace showed a vagally mediated pattern, he ([F]) said to the appellant that:

(i) he (the appellant) had totally misinterpreted the trace;

(ii) he ([F]) was unhappy with the trace and did not think it showed a vagally mediated pattern

and that he ([F]) had made a note of those comments to the appellant in the notes, but:

(i) [F] did not say in the letter to Dr Cumming, the June 2000 proof of evidence or his evidence-in-chief that he had said either of those things to the appellant;

(ii) [G] did not say in her evidence that she heard [F] say either of those things to the appellant; and

(iii) there is no note of those comments in the notes;"

90 [G] did not say that she overheard any conversation between the appellant and [F].

91 The criticism about the omissions from [F's] letter to Dr Cumming I have dealt with in respect to earlier paragraphs of this ground of appeal. Similarly, the omission of this conversation from [F's] notes is not significant. [F] recorded the appellant's response which was that he was happy with the trace and that he was confident. The fact that he did not record what he told the appellant about the trace does not seem to be the point.

"(t) [F] produced the notes at the time and in the manner described in paragraph 2 above and claimed that they were an accurate record of what had been said in the first and second calls and of what the appellant had said when he first saw the trace at about 7:55 am on 30 November 1994."

92 I do not understand the point of this paragraph. I have already dealt with whether the respondent was entitled to accept the notes as reliable. However, it is clear on anyone's analysis of them that they are not a full report and are little more than jottings of what [F] believed were some relevant matters.

93 After considering all the points raised by the appellant under this ground the appellant has not made good its central point being that the respondent erred in accepting [F's] evidence.

"4. Further or alternatively, the respondent erred by making its findings as to what was said by [F] to the appellant during the first call and the second call based solely on the evidence of [F], without:

(a) having any or due regard for the evidence given by the appellant in that regard;

(b) deciding the issue of credibility between the appellant and [F] adequately or at all;

(c) expressly rejecting the evidence of the appellant; and

(d) giving any or any adequate reasons for not accepting the evidence of the appellant."

94 As to subpar (a), I have already indicated that the respondent recited the appellant's evidence-in-chief in respect to the key issues in dispute between the appellant and [F] (AB 81, RFD [116] - [117] and AB 126, RFD [205] - [206]). Therefore it cannot be said that the respondent failed to have regard to the appellant's evidence.

95 Further, in its reasons for its findings in respect to the first telephone call, it said:

"[115]. The critical question of fact in relation to para. [1A(a)] of the Re-Amended Notice of Inquiry is whether, during the telephone conversation at or about 6.30 pm, [F] informed the Practitioner that he wanted him to attend and review the fetal cardiotocograph trace. The Practitioner contends that [F] did not make this request of him. [F] contends that he did. After extensive consideration of the substance of the evidence adduced relevant to this issue and of the manner in which that evidence was provided to the Board and having reflected on the matter at length, the Board has concluded that [F] did inform the Practitioner during the first telephone conversation that he wanted him to attend and review the fetal cardiotocograph trace. The Board is persuaded that this did in fact occur."

"[204]. The Board is satisfied that two requests for attendance and review were made of the Practitioner - one during each telephone conversation with [F]. After extensive consideration of the substance of the evidence adduced relevant to this issue and of the manner in which the evidence was provided to the Board and having reflected on the matter at length, the Board has concluded that [F] did ask the Practitioner during the second telephone conversation to come into the hospital to review the fetal cardiotocograph trace as quickly as he was able. The Board is persuaded that this did in fact occur."

96 Having regard to these passages, I cannot agree that the respondent failed to have due regard to the appellant's evidence. It identified the appellant's evidence as relevant in the sense that it recited it in context within its reasons where it was correctly identifying the factual issues for it to decide and the respondent then said that it had regard to all the relevant evidence in making its decision. The phrases which the respondent used in the above quoted paragraphs were criticised by the appellant as being catch-all phrases without substance. My view is that if a tribunal of fact says that it has taken evidence into account then that should be accepted by me unless there is evidence to the contrary.

97 As to subpars (b), (c) and (d), I note that the respondent spent much less time dealing with the appellant's evidence than with [F's] evidence. Most of the relevant parts of the reasons for decision dealing with factual matters are devoted to the reasons why the respondent accepted the evidence of [F].

98 The respondent did make adverse comments, either express or implied, about the appellant's evidence about his response to the trace when he saw [A] at 7.55 am (AB 99 - 100, RFD [149]) and about his evidence of his movements when he arrived at the hospital (AB 76, RFD [113]). There was also a resolution in favour of [F] of direct conflict between the appellants and [F's] evidence on whether the appellant hung up on [F] (AB 89 - 90, RFD [130]). In respect to the second call the respondent decided against [F], and therefore in the appellant's favour on the issue of whether [F] told the appellant that the trace was "non reassuring" (AB 124, RFD [199]). However this finding was a finding that the Board was not satisfied that [F] used the phrase rather than a positive finding that it believed the appellant in this regard. The respondent also made adverse comments on the appellant's explanation for not responding in a timely fashion to [F's] second call, whether or not he was requested to attend (AB 146, RFD [245]). All of these comments and findings, with which I agree, reflected adversely on the appellant's credibility in general.

99 The respondent's reasons must be considered in light of its correct understanding of the standard of proof (AB 42 - 43, RFD [34] - [35]). It understood that the credibility of [F] was of critical importance (AB 50, RFD [57]).

100 In finding that it believed [F] when he said that he asked the appellant to attend the hospital during both telephone calls, the respondent impliedly found that it disbelieved the appellant's denials of these requests. In Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178 McHugh J, with whom the other members of the High Court agreed, said:

"Consequently where a trial Judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that an advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion."

In my view this principle is applicable to the facts of this case, even though this is not a case where it can be said that the respondent made no reference to the appellant's evidence. The real issue is whether the appeal can be allowed because, although it made reference to the appellant's evidence, the respondent did not express reasons for its findings in terms of reasons why it disbelieved the appellant on the crucial issues before it. In my opinion the appeal cannot be allowed on this basis because I am not satisfied that the advantage the respondent had in seeing and hearing the witnesses was not sufficient to explain or justify the respondent's conclusion.

101 The respondent had to decide whether it was persuaded that [F's] version of events probably occurred. This is not a case where that probability was sought to be proved by destroying the credibility of the appellant. Rather, it was sought to be proved by establishing the truthfulness and reliability of [F's] version of events. Further, although no doubt the appellant sought to have the respondent take into account his experience and standing in the medical profession in his favour, the appellant's defence focused on alleged deficiencies in [F's] evidence. It is not surprising, therefore, that the respondent's reasons for decision focus on these allegations. Ultimately this was a decision about who the respondent believed and, for the reasons it gave, it believed [F].

102 Neither is this a case where the respondent's findings on credibility can be demonstrated by "incontrovertible facts or uncontested testimony" to be wrong (Fox v Percy (supra) at 28). The respondent's findings on all matters which were said to affect [F's] credibility were open to it. I am not persuaded that they were wrong.

103 The appellant further submits under this ground that where there are two conflicting accounts of an event and neither is corroborated, the tribunal of fact must say why it prefers one over the others and if it rejects one it must say why it has done so. No authority was cited for these propositions. Accepting that they express the law, I do not accept that the respondent has not applied them. The respondent has said that it preferred [F's] version because after considering all the relevant evidence, particularly his evidence and the challenges made to it, the respondent believed him. As I have said, this is not a case where the respondent found that the appellant was incredible on the relevant issues by an examination of his evidence. Primarily, the respondent has found [F] to be the more credible witness by a careful examination of his evidence. However it cannot be ignored that, as I have indicated, the respondent did consider in detail parts of the appellant's evidence and, as they were entitled to do, commented adversely upon it.

104 The appellant relied upon the decision of Miller J in Hewett v Medical Board of Western Australia [2004] WASCA 170. In that case Miller J allowed an appeal by Dr Hewett against a finding of the respondent that he was guilty of misconduct. It was alleged that Dr Hewett had had a sexual relationship with the relevant complainant whilst he had a doctor/patient relationship with her.

105 The evidence before the respondent, in that case, included the evidence of the complainant and Dr Hewett. There was no direct evidence that corroborated the complainant's allegations. The doctor's secretary gave evidence on his behalf that she often entered the doctor's surgery whilst he was treating patients and that she had never once found the room to be locked when she wanted access to it. She also gave evidence that she usually remained at her work until the last patient left the surgery. A statement of a doctor who had worked with Dr Hewett at his practice during the relevant time was also tendered. This confirmed the receptionist's evidence that receptionists at the practice and he had unrestricted access to Dr Hewett's consulting room. He said that it was necessary to visit Dr Hewett's consulting room two to three times in each session when he was working at the practice and his routine was to knock and enter immediately. At no time in five years did he ever find Dr Hewett's room barred from entering. A letter from another doctor in similar terms was also tendered. In addition, there was evidence available from the complainant's psychologist which arguably discredited the complainant in relation to her complaints.

106 In allowing the appeal Miller J found that in looking first to who was telling the truth and who was lying, the respondent may have obscured the essence of its inquiry which was whether it was persuaded on the balance of probabilities that the allegations contained within the notice of inquiry had been made out. His Honour found that to the extent that the respondent focused upon the question of "who is telling lies" it appeared in his view to have misapprehended and over-simplified the task before it ([119] - [121]).

107 After considering the evidence of a number of witnesses, his Honour then considered the issue of credibility. He noted that the decision of the respondent turned almost exclusively on its assessment of credibility as between the complainant on the one hand and Dr Hewett on the other. He quoted the decision of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588 at [93] where he said:

"Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal. Take the following instances which are by no means exhaustive:

1. In some cases the evidence of the witness, where credibility is in question, although relevant to the outcome of a trial, relates only to particular aspects of the parties' dispute and leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding. In such cases to avoid appellate reversal, the trial judge must demonstrate that such evaluation has occurred. It will be rare, in large and complex cases presenting multiple issues, for the entire decision to hang on the credibility of a single witness, although that can certainly happen. Where there is other evidence, unchallenged, unanswered, ostensibly reliable and supported by uncontested contemporaneous records, an adverse credibility finding in respect of one witness or more does not remove from consideration all of the other evidence. Nor can it relieve the trial judge, or the appellate court when required, of the duties of analysis and the provision of reasons to demonstrate and explain that such analysis has occurred.

2. It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed or implied assumptions about the evidence (eg that witnesses are in conflict) which careful analysis of the record demonstrates to be incorrect."

Miller J found that although Hewett's case did not fit squarely within the examples quoted by Kirby J, it could well have been added to Kirby J's list. He said that these were circumstances in which a credibility finding was made by a tribunal, but in circumstances where it overlooked a body of evidence which may well have influenced the decision in relation to credibility. He cited the clinical notes of the complainant's psychologist as being such an example. His Honour found that the notes at first glance seem to be inconsistent with aspects of the complainant's testimony ([177]).

108 Miller J separately considered the case of Sinha v Health Care Complaints Tribunal [2001] NSWCA 206. In that decision the New South Wales Court of Appeal had set aside a decision of the Medical Tribunal of New South Wales and remitted it for rehearing. There were many factual similarities between the cases of Sinha and Hewett. Miller J quoted from the decision of Fitzgerald AJA in Sinha's case where he expressed concern that the Tribunal's focus on whether the patient was telling the truth or maliciously lying involved a risk that the Tribunal concerned itself with whether the patient was a malicious liar instead of the real question for its decision, namely, whether the practitioner misconducted himself as alleged. Miller J stated that the same criticism could be made in respect to the respondent's preoccupation with the question of which of the complainant on the one hand and Dr Hewett on the other was the liar in Hewett's case. The real question was whether the appellant had misconducted himself as alleged by the complainant and not which of the two protagonists was a liar ([220]).

109 Miller J also noted that in Sinha's case the New South Wales Court of Appeal considered the Tribunal had failed to deal with the significant conflict in the evidence between the complainant and the practitioner's secretary. Miller J came to the same conclusion with respect to the respondent in Hewett's case. Miller J found that in the light of the receptionist's and the other doctors' evidence "one might have expected the [respondent] to have concluded that it was a telling factor in favour of the appellant" ([223]). Miller J also found that the complainant's evidence that sexual misconduct had occurred with a patient in the doctor's unlocked rooms during ordinary surgery hours was unlikely and in light of that evidence the respondent grossly underestimated the evidence of the receptionist and the other doctors ([227]). Thus, Miller J found that the conclusion of the respondent that it was satisfied on the balance of probabilities that the testimony of the complainant was credible and acceptable was an unsafe conclusion.

110 Hewett's case is an example where an appeal Judge overturned a decision of the respondent which it had based on findings of credibility. In the case of Hewett, Miller J relied upon uncontroverted evidence of the receptionist and the other doctors as to their access to Dr Hewett's surgery as being evidence which supported his case and undermined the complainant's credibility. He also relied upon the apparently credible notes of the complainant's psychologist. In my view no such uncontroverted evidence exists in this case. Further, Miller J criticised the respondent for concentrating on the issue of whether the complainant or the appellant was a malicious liar. However, each case has to be decided on its own facts. The same criticism cannot be made in this case. For these reasons I would distinguish this case from Hewett's case.

111 I agree with the appellant that it would have been preferable for the respondent to have balanced its reasons for decision with more comment on the appellant's evidence, rather than spending so much time explaining away the alleged deficiencies in [F's] evidence. The manner in which it has approached the matter has left it open to the allegations that it erroneously reasoned that by satisfying itself that [F] was a truthful and reliable witness that his evidence must be preferred to that of the appellant. However, after examining these criticisms I am not persuaded that they have been made out. The respondent was clearly entitled to rely upon [F's] evidence if it found, on the balance of probabilities to the Briginshaw standard, that he was truthful and reliable. It clearly did so and it gave detailed reasons for why it found [F] to be truthful and reliable despite the attacks made upon him and his evidence. I am not prepared to interfere with those findings.

Roberman v The Medical Board of Western Australia [2005] WASC 45

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Judgment (293 paragraphs)

Roberman v The Medical Board of Western Australia [2005] WASC 45 (24 March 2005)

Parties

Cases Cited (8)