Tamworth Base Hospital & Anor v Durant

PROFESSIONAL NEGLIGENCE (MEDICAL) - APPEAL ATTACKING JUDGE'S FACT FINDING - The respondent's broken leg was attended to by a general practitioner on call at a country hospital (1978). The leg was later amputated (1983). The respondent claimed the loss of the leg was due to the general practitioner's (and vicariously the hospital's) neglect. (He had commenced proceedings in 1980 before the amputation.) In 1994 the Prothonotary refused to dismiss the proceedings for want of prosecution. After a trial in 1997 before a judge alone, the appellants were held liable.

The appellants appealed against the decisions of both the Prothonotary and the judge. The appeal against the prothonotary's decision was rejected. In the appeal against the judgment, it was submitted the judge's fact finding was so flawed, and the facts that should have been found were such that judgment for the respondent should be set aside, and instead entered for the appellants. Priestley JA was of opinion that there was sufficient factual foundation for the judge's conclusion and that the appeal should be dismissed, Handley JA thought the appeal should be upheld and judgment entered for the appellants, Fitzgerald JA thought judgment should be set aside and a new trial ordered. ORDERS 1. Appeal upheld. 2. Judgment set aside. 3. New trial to be held. 4. Respondent to pay costs of appeal and if qualified to have a certificate under the Suitors Fund Act. 5. Costs of first trial to abide order of judge at the new trial. THE SUPREME COURT

1 PRIESTLEY JA: These are appeals by the defendants (a hospital and the estate of a doctor) arising from proceedings in which judgments for damages for medical negligence were entered against them by Murray AJ on 19 December 1997 in the sum of $382,046 and costs.

2 The plaintiff broke his left leg in a football game on 16 April 1978. He was taken to the Tamworth Base Hospital (the first defendant, the Hospital) where he was attended by Dr Bedville (the second defendant until he died before the trial of the proceedings when the executors of his estate were substituted for him). The fracture did not heal. On 3 October 1978 surgery was undertaken. On 13 October 1978 there was a revision operation (Blue AB 2/98, 128). In the course of this surgery and its aftermath, the plaintiff's leg became infected. First there was a skin graft and later it became necessary for the leg to be amputated beneath the knee. This was done on 2 March 1983. In the meantime, the plaintiff had commenced his proceedings against the Hospital and the doctor in 1980.

3 In 1990 each defendant filed notices of motion seeking to have the plaintiff's proceedings struck out for want of prosecution. The motions came before the Prothonotary on 12 October 1990. The first defendant's motion was stood over generally with leave to restore on seven days notice; the second defendant's motion was by consent dismissed with the plaintiff being required to pay the second defendant's costs. 4 In December 1990 the necessary particulars and then notice to set down for trial were filed by the plaintiff. In 1991 Dr Bedville died. On 29 September 1992, the solicitors for the estate of Dr Bedville, after obtaining the consent of the plaintiff, were substituted for Dr Bedville as defendants in the proceedings. 5 On 7 April 1994 the second defendant filed a further notice of motion seeking dismissal of the proceedings for want of prosecution and the first defendant restored its notice of motion to the list. They were heard together and were dismissed by Master Greenwood on 5 July 1994. 6 The trial before Murray AJ took place on four days in September 1997. 7 The defendants' appeals are against the decisions of Master Greenwood and Murray AJ. 8 Appeals against Master Greenwood's decisions. A preliminary question in these appeals was whether it was competent for them to be brought. In the course of argument the court decided that the position was governed by Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd (Court of Appeal, unreported, 5 December 1990). Accordingly, the court ruled that it was competent for the defendants to maintain their appeals. 9 The defendants submitted that Master Greenwood had erred in exercising his discretion against the defendants in dismissing their applications. It was said he had failed to give proper weight to the loss of medical records, the death of Dr Bedville, and the deterioration in the hospital's insurance protection caused by the delay, all of which required the conclusion there could no longer be a fair trial. (The loss of one set of medical records, the x-rays of the plaintiff's fracture, happened, probably in 1985, as a result of the hospital's policy to destroy such records after seven years: Blue AB 51.) 10 There were undoubtedly periods of inaction in the prosecution of the plaintiff's case. His proceedings were commenced before the decision was made to amputate his leg. It is understandable that no further step was undertaken until the state of his leg had become settled some time after the amputation. However, nothing further had been done in the proceedings by 1990. 11 The Master found that after the orders made by the Prothonotary in 1990, the plaintiff had done everything required of him and had also complied with all orders made against him since that time. Also, the proceedings were then awaiting a hearing. 12 In my opinion, the evidence before Master Greenwood plainly showed that nothing that had occurred since the end of 1990 justified a finding against the plaintiff of prejudice to the defendants entitling them to an order striking out the plaintiff's statement of claim for want of prosecution. 13 For the defendants however it was argued that the Master should not have confined his consideration to the period since October 1990, but should have taken into account everything that had happened since the plaintiff's accident. Assuming that in theory this is right, nevertheless in the circumstances of the present case I do not think Master Greenwood's exercise of discretion should be said to have miscarried because of his concentration on the period since the defendants had, in effect, in 1990 acquiesced in the proceedings going forward. As part of his consideration of the fair trial question, which was not simply an abstract question, he had to consider the matter of fairness between the parties and the particular circumstances of the delay. 14 If the court were of opinion that the Master's exercise of discretion was vitiated by some relevant error, then the court itself would have to re-exercise the discretion. There would then be further matters to take into account. 15 One would be that, after Master Greenwood dismissed the defendants' applications, the plaintiff, on 27 October 1995, with the consent of both defendants, filed an amended statement of claim. So far as I can see, there is no evidence, nor was there any submission made to the effect that the consent to the amendment was given without prejudice to the defendants' right to appeal against Master Greenwood's decision. As indicated earlier, the court is of the view that the defendants did not lose their rights of appeal by not seeking to have the court hear them until after the trial. Even so, in deciding whether the appeals should now be allowed, I think the court must take into account the consents by the defendants to the amendment of the statement of claim. Perhaps they could have protected themselves against this consideration by signifying their consent to the amendment of the statement of claim on the footing that it was without prejudice to their pending appeals, but, at least so far as the materials before the court disclose, this did not happen. 16 It would also be relevant, in my opinion, to take into account the fact that the trial had taken place, and to consider whether it could be said that it had been a (relevantly) unfair trial. 17 So, if this court were to exercise the discretion now which Master Greenwood is said to have misexercised, I am inclined to think, without having reached a final conclusion on the matter, the same result should be reached. However, it is not necessary to decide this, as in my opinion Master Greenwood made no discretion-vitiating error and the appeals against his decisions should be dismissed.

Appeals against Murray AJ's judgments and orders . 18 The notices of appeal listed twenty-five grounds. Twenty-four grounds challenged the judge's decision on liability. Ground 25 asserted the damages were excessive. Grounds 2, 3, 4, 5, 6, 7, 10 and 17 were not pressed. Notice was given that leave would be sought to add a further ground. 19 Liability. Murray AJ made various findings adverse to the defendants but those basic to his conclusion that the defendants had been negligent were as follows: 1. The plaintiff was truthful and his evidence should be accepted. 2. Dr Bedville neglected to supervise the plaintiff's treatment properly. 3. Dr Bedville initially treated the plaintiff by plastering the fracture. This was standard practice but the plasters were not properly applied, were loose, and were not adequately supervised. 4. Probably because of 3, union did not occur in the plaintiff's fracture. 5. The lack of union in the fracture led to the need for surgery in October 1978 which was eventually the reason for the amputation of the left leg below the knee. 6. The hospital was vicariously liable for Dr Bedville's negligence. 20 Murray AJ made a number of findings and observations in addition to those summarised in the preceding paragraph. The various grounds of appeal pressed by the defendants were mostly particulars of the main heads of the defendants' arguments. They included challenges to some of the additional findings as well as the summarised ones. I do not think that any of the submissions directed to the non-basic findings, even if accepted, would be of any significant weight in criticism of the basic ones. I will therefore only deal with those of the defendants' submissions relevant to the basic findings and the conclusion drawn from them. 21 Finding 1., that the plaintiff was truthful and his evidence generally correct, is of obvious importance in this court's handling of the appeal. The defendants' primary submission was that the trial judge had been in error in accepting the plaintiff's evidence relevant to the alleged looseness of the plasters because it was inconsistent with a written statement he himself had made and also with contemporary documentation.

22 This submission immediately runs into the well known position that, in general, this court will not interfere with findings of a trial judge based on the judge's acceptance of a witness's evidence when that acceptance is materially influenced by the judge's impressions of the witness's credibility and demeanour: Abalos v Australian Postal Commission (1990) 171 CLR 167. The court only departs from this general practice when the trial judge has clearly misused the advantage of having seen and heard the witness or has made some palpable error showing that the judge's reliance on the witness cannot be justified: see Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 for an illustration of how the rule usually works. 23 The defendants referred to SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306, which is an example of the comparatively rare class of case where a judge's decision based on credibility and demeanour was overturned. In Earthline, the trial judge had not accepted the evidence of a witness, S, whom he thought had not presented well in the witness box, was argumentative and evasive and whose evidence he thought was inconsistent. However, in the High Court it was observed that on material matters S had withstood cross-examination, there was unchallenged evidence from other witnesses supporting her on some of the material matters and she was also strongly supported by documentary evidence. In the High Court it was further said that the trial judge did not give any weight to these matters in considering whether he should accept S's evidence: 73 ALJR at 321, (per Gaudron, Gummow and Hayne JJ). Nor had the Court of Appeal when the case was before it. The result, they said, was that there had never " been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. " (also at 321 ) 24 The position in this case is quite different. Dr Bedville's notes were brief and cast little light upon the facts about the plasters successively applied to the plaintiff's left leg. Those of the hospital's contemporary notes which were in evidence were not of particular help on the precise facts concerning the application of the successive plasters either. The evidence of particular facts given by the plaintiff about the way his leg was plastered and about the condition of his leg at times relevant to the plaster questions provided a sufficient basis for the opinions expressed by the medical practitioners called as witnesses in the plaintiff's case, taken together with their general evidence, that the plasters must have been inappropriately applied. 25 As to the submission that what the plaintiff said in the witness box was inconsistent with earlier written statements, the trial judge, aware of the defendants' submissions about the alleged inconsistencies, was satisfied the plaintiff was truthful. In my view this conclusion was open to him on all the materials before him and does not fall into the class of finding involving either the overlooking of decisive material or perversity. 26 The same reasoning applies to the submission that the plaintiff's evidence was inconsistent with contemporary documentation. Additionally, I cannot in any event see anything in those parts of the plaintiff's evidence complained of significantly in conflict with the surviving contemporary records. 27 Moving to the trial judge's basic findings 2. and 3., here the substance of the defendants' complaint was that the expert opinion and evidence supporting the plaintiff's case were demonstrably less supportable than the expert medical opinion and evidence tendered for the defendants. What I have said about the trial judge's factual finding 1. has a significant effect upon this submission also. 28 One relevant matter also dependent on the trial judge's acceptance of the plaintiff was his evidence about the plaster casts. These enclosed his leg from hip to foot. He said the casts were straight. The medical opinion was unanimous that they should have been slightly bent at the knee. There was some expert evidence that the lack of the bend made the application of the plaster inappropriate and contributed to the failure of the fracture to mend. There was no factual evidence to the contrary of what the plaintiff said. The trial judge's acceptance of the plaintiff's evidence included acceptance of what the plaintiff said about the straight casts as being the fact. There is no basis that I can see on which the trial judge's factual findings in this respect can be said to be wrong or that this court should come to a different conclusion. 29 Coming now directly to findings 2. and 3., opinion evidence upon which they were based was given by Dr Peters and Dr Seaton. 30 Dr Peters had been a resident medical officer at the hospital in 1978. She had graduated in 1974. Before going to the hospital in Tamworth she had, amongst other things, spent six months doing orthopaedic surgery in Queen Elizabeth Hospital in Hong Kong. There she described herself as having been " a house officer in orthopaedic surgery working seven days a week and taking care of a lot more major things in that region of Asia than we could possibly ever dream of in Australia ." 31 In the three months she had spent in the hospital at Tamworth before the date of the plaintiff's accident (she did not remember having been aware of him at that time) she had assisted with surgery, had done orthopaedic outpatients and looked after patients in the orthopaedic ward. In 1980 and afterwards she took part in the plaintiff's medical care. 32 Dr Peters' opinion was that good practice required that the plaintiff be referred to an orthopaedic specialist either on admission or very soon after. The trial judge said in his reasons that her opinion had been that if the plaintiff had been referred to an orthopaedic specialist early there was a very good chance that the plaintiff's fracture would have gone on to union. The trial judge said that he regarded Dr Peters as an impressive witness, despite her relative inexperience. 33 Dr Seaton was a consultant orthopaedic specialist. Submissions critical of the trial judge's reasoning were made by reference to the passage in the reasons in which the trial judge dealt with Dr Seaton's evidence. In it there is reference to a matter to which some time was devoted at the trial, namely, whether the plaintiff's fracture had been a transverse or a spiral fracture. The defendant's criticisms focussed on the following paragraphs: " Dr Seaton opined, that with a properly applied plaster, in the case of a spiral fracture, the chances of successful union are in the order of 100 percent. With a transverse fracture, because of the difficulty with such a fracture, the chances of successful union are in excess of 50 percent, and that he would as a general rule open it up and make sure of union by putting a plate across it. Dr Seaton was an unimpressive witness. when he wrote his report he was under the impression that the fracture was a spiral or oblique fracture. This impression no doubt arose from the notation by the resident doctor in the clinical notes to that effect (referred to above). It is unfortunate that the original Xrays are not available. The Xray reports are imprecise as to the nature of the fracture. However, the preponderance of the evidence, including the late Dr Bedville's report, suggests that the fracture was transverse. It seems to matter little, as Dr Seaton's evidence is that even greater care should be taken in the case of a transverse fracture. Dr Seaton was cross examined at length, and with difficulty, as it was difficult to keep the doctor to the point because he was inclined to ramble off into a number of irrelevant asides. Accepting valid criticism of Dr Seaton, both as to the basis for his opinion and the manner in which he expressed himself, he was nevertheless unshaken on two basic propositions, those being - 1. The plasters applied were inadequate; and 2. An orthopaedic specialist ought to have been called in at an earlier time to treat the plaintiff for this fracture. " 34 This passage came at the end of the trial judge's discussion of the case presented for the plaintiff. He next dealt with the case for the defendants and then stated his conclusions which contained the basic findings I earlier set out. 35 In criticism of the passage above set out dealing with Dr Seaton, it was submitted for the defendants that, in effect, there was inconsistency in the trial judge's having acted on the evidence of someone he described as unimpressive. I do not think, having read the transcript of Dr Seaton's oral evidence, that there is anything surprising either in the judge's comment or in his acceptance of the two basic propositions. It is true that the cross-examiner had difficulty in getting Dr Seaton to answer his questions strictly in accordance with lawyers' ideas of relevance and the rules of evidence. Many of his answers were discursive. Of these, some deserved to be called rambling. But, I do not think, having read Dr Seaton's evidence and bearing in mind the limitations of my being confined to the printed page, that these criticisms greatly lessen the strength of what Dr Seaton said about the issues in the case. He was a witness with very impressive qualifications in his field. There was no challenge to the evidence of his very long experience in practice as an orthopaedic surgeon and later consultant at the highest level. From his evidence I got the impression of a man who knew well and truly what he was talking about and had passed into that stage of seniority where he felt no pressing need to talk in what he regarded as the artificial language of lawyers rather than in the medical way he was much better used to. 36 Further, it seems clear that once the judge accepted the factual evidence of the plaintiff, there was a convincing basis for accepting the first of the two basic propositions on which the trial judge felt Dr Seaton was unshaken. As to both those propositions there was support, once the plaintiff's evidence was accepted, from Dr Tinning and, to a more guarded degree, Dr Ellis, the two expert witnesses who gave oral evidence for the defendants. 37 The kind of support from these two witnesses appears most clearly in the following passages from Dr Tinning's cross-examination: " Q. It would be quite unacceptable to have plastered this man's leg in a straight plaster? A. Yes. Q. And if there were plaster sores developed, that could well be one explanation, couldn't it? A. Yes. Q. Doctor, if the plaintiff was in more or less constant pain for - just for the moment just limit it to the first 8 weeks or the first 10 days or more so, but more or less constant pain for the first 8 weeks, that may well indicate an incorrectly applied plaster, mightn't it? A. It may. Q. You wouldn't expect a patient to have almost constant pain for the first 8 weeks post-fracture of a fracture of this sort, would you? A. It would be, but I think it's unusual. ... Q. Doctor, if there was grating at the fracture site and if the patient felt grating, that would indicate that the fracture was actually not immobilized, would it not? A. No, that's not necessarily, The feeling of grating is quite common with fractured tibias. Q. Not 5, 6, 8 weeks post-fracture, is it? A. I think that is unusual. Q. If during that period of time from 10 days to 8 weeks he was having some grating, that would indicate that the fracture was not properly immobilized, would it not? A. Probably. Q. Doctor, we talked about the shape of the plaster. But in the case of this conservative treatment which we have been talking about, the treatment in its entirety involves the immobilization of the fracture, does it not? A. Yes. Q. And the correct application of the plaster is of absolute importance because it provides the patient with the best chance of avoiding the risk of operations? A. Yes. " (Black AB 167) [1] 38 The facts assumed in these questions had all been asserted in the plaintiff's evidence as later accepted by the judge. 39 Finding 4. of the basic six earlier extracted from the trial judge's reasons was criticised by counsel for the defendants, but it seems to me that the evidentiary matters I have referred to in dealing with findings 1. to 3. provide a quite sufficient basis for this conclusion. In arguing to the contrary, counsel for the defendants relied heavily on reports, tendered in the defendants' case, from doctors other than Drs Tinning and Ellis, as well as on the reports and oral evidence of the latter two. Although the defendants' experts thus outnumbered those for the plaintiff, none of the reports relied on by the defendants took into account material facts given in evidence by the plaintiff at the trial. This defect in the defendants' case is highlighted by the contrast between the reports of Drs Tinning and Ellis and those parts of their evidence under cross-examination in which the facts the plaintiff was asserting about the plasters were raised with them. Thus the trial judge did not simply prefer the evidence of Drs Peters and Seaton, but had sound reasons for doing so. 40 It was submitted that the trial judge did not explain sufficiently clearly why he did not accept the opinions of the defendants' witnesses. In my view he said enough in his reasons to discharge his obligations in this respect. I would not in any event interfere with his judgment on that ground in this case as I think he indicated fairly enough why he came to the result he did. 41 As to finding 5., there was clear medical evidence from both the plaintiff's and the defendants' experts showing that it was well recognised that one of the reasons why it was highly desirable to try and bring about union of the fracture without surgery was the risk of infection in surgery. The way in which judges should approach questions of causation has been explained frequently by the High Court in recent times in cases such as March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506. In my opinion, in light of the approved approach, the trial judge here made no error in his finding of causality. 42 One of the matters which became of some importance at the trial was the need for a long leg plaster to be bent. For example, Dr Ellis said that such a plaster should be bent at the ankle and bent at the knee; he also said that many people liked ten to fifteen degrees at the knee but that he himself preferred twenty degrees. He further said that he thought a general practitioner in Dr Bedville's position "would know that a long leg plaster would have to have a degree of angulation at the knee" (Black AB 192). The evidence of the other experts was to the same effect. The significance of this was that the plaintiff said in his evidence that his long leg plaster had been straight. Dr Peters had given evidence to this effect on the first day of the trial and had not been cross-examined about it. Both Dr Tinning and Dr Ellis, broadly speaking, agreed with this aspect of the evidence given by the plaintiff's experts. 43 In the course of oral argument, counsel for the defendants submitted that the trial judge had made no specific reference in his reasons to the evidence about the straight leg plasters. He said the probable explanation for that was that he could not properly have relied on the evidence about the straight leg plasters because of an interlocutory ruling given during the course of the trial. I do not agree that his Honour could not properly have relied on this aspect of the evidence. It seems to me that the evidence either contributed to, or if not, certainly supported his finding that the plasters were not properly applied and adequately supervised. 44 In order to make it quite clear why I have reached this conclusion I need to set out just how the interlocutory ruling referred to by counsel came to be made, and the full terms of what his Honour said in making it. 45 The evidence at the trial ended on the fourth day of hearing. The evidence for the defendants was documentary and oral. The oral evidence was given by Drs Tinning and Ellis. The transcript shows that after Dr Ellis retired, some further exhibits were tendered and admitted and then an application was made for the defendants. The transcript records: " Mr Kalfas made an application to lead evidence tomorrow from a person in Tamworth (only just located) who was the head of the Physiotherapy Department at the hospital at the relevant time, in relation to some of the issues that had arisen in the course of the hearing which were not flagged under the particulars or the pleadings and which went to the practice in relation to the application of plasters by the Physiotherapy Department in 1978. Application opposed on the bases that nothing had been done or said until now, Drs Peters and Seaton had been and gone, and relevance. Discussion ensued. for judgment see separate transcript ." 46 What the judge said was as follows: " his honour: At the conclusion of the evidence today, after Mr Kalfas had been asked if he had closed his case and during discussion concerning agreement on special damages and arrangements for the conclusion of the case; Mr Kalfas on behalf of the defendants made application to call a witness from Tamworth; namely, a physiotherapist, to give evidence on the question of the practice at the Tamworth Base Hospital in 1978 in regard to the application of plaster to fractured legs. The issue arises out of a portion of a report dates 5 June 1980 by the late Dr Bedville, the second defendant, to the Medical Defence Union in which, on page 2, the following appears: 'The plaster was changed by the hospital physiotherapist on 14 June 1978 at eight weeks, but when I inspected the plaster on 15 June I considered that there was an unacceptable degree of rotation and inversion of the left foot, so that at my request the plaster was replaced by the physiotherapist.' He goes on: 'The plaster was inspected on 19 June and was considered satisfactory.' The plaintiff in this case called Dr Peters who took over the treatment of the plaintiff in 1980 but who had previously been a resident at the Tamworth Base Hospital. She was asked some questions, which will appear from the transcript, as to the appropriateness or otherwise of a physiotherapist applying plaster in 1978 to a fractured leg unsupervised. Dr Douglas Seaton, also called on behalf of the plaintiff, also commented on the same issue, as will appear from the transcript. It is put by Mr Kalfas on behalf of the defendants that this was a new issue that has arisen during the running of the case and he seeks leave to call the witness. Mr Steele of Queen's Counsel on behalf of the plaintiff objects on the basis that at this stage of the proceedings he would be at a disadvantage in having to meet whatever evidence is going to be led by the proposed witness. He points out that the allegation concerning the appropriateness or otherwise of the plasters applied to the plaintiff's leg was not a new issue in this case of great antiquity. He points out in the original amended statement of claim there appears the following allegations: '11(a) The plaintiff repeats the particulars of negligence set out in 10(a) to 10(g) as allegations of negligence on behalf of the second defendant (the estate of the late Dr Bedville). (b) Applying loose and inadequate plasters. (c) Failing to request specialist assistance or advice with respect to the application of long leg plasters. (d) Failing to treat or adequately treat plaster sores.' During the evidence of Dr Seaton in particular and, latterly, Dr Ellis, some questions were directed to those doctors as to the appropriateness or otherwise, not only of plasters being applied by staff physiotherapists without supervision, but also to the appropriateness or otherwise of treating a fracture of the type involved in this case with a straight plaster rather than one which sets the knee at an angle. It is stated by Mr Kalfas on behalf of the second defendant that hat particular allegation was not one of those included in the particulars to which I have already referred. However, in a letter of 10 October 1990 by the plaintiff's solicitors to the defendants' solicitors, Blake Dawson Waldron, when asked for further particulars of paragraph 11 of the statement of claim , the response was given as follows: 'Dr Bedville should not have allowed the plaintiff's leg to remain in a straight plaster cast for some five months.' The evidence that I apprehend is to be led or proposed to be led by the witness goes to, as I understand it, two questions: one, the practice in Tamworth in 1978 of physiotherapists applying plaster cases to a fractured leg and, secondly, to the question of the appropriateness of a straight leg plaster rather than one which is set at an angle. It seems to me that the relevant question is not so much what the physiotherapist did or did not do or what the practice was or was not, it is the question of the appropriateness or otherwise of the action taken by the late Dr Bedville in supervising or failing to supervise the plaster by the physiotherapist, whether it be a straight plaster or one with an angle in it. The plaintiff's representatives have been guilty of gross delay in bringing and preparing this case, but it appears to have been at least matched in part by the failure of the defendants to also apply themselves to the issues in the case. I need go no further than to remark that the report of the late Dr Bedville dated 5 June 1980; that is, over seventeen years ago, was not served on the plaintiff's representatives until last Friday; that is, 12 September, with the case specially fixed to commence before me on Monday 15 September. The plaintiff's representatives, having received that report, did not object to it, as I understand it, because of the desire for the case to proceed. I think the case at this stage has gone sufficiently far and, the interests of justice being paramount, that it would be unfair for the plaintiff to have to meet the proposed evidence, doubting as I do its utility. Accordingly, the application is refused. " 47 The submission by counsel for the defendants was based upon the paragraph in the judge's reasons commencing "It seems to me that the relevant question is not so much ...". The submission that what he said in the course of his reasons disentitled the trial judge from relying on evidence about straight leg plasters seems to involve the idea that in this paragraph the judge was definitively ruling that the evidence about straight leg plasters was irrelevant to his decision on negligence. 48 In my opinion, this idea is not particularly plausible, even if the single paragraph on which counsel relies is alone taken into consideration. My reason for setting out the whole of his Honour's reasons is that, it seems to me, when the paragraph relied on is read in the context of everything that he said, the submission loses all plausibility. 49 In my view, the judge was not prepared to delay the trial further because the delay would have been costly (bringing a witness from Tamworth, with the possibility of recalling Dr Peters from Tamworth) and of little value in view of the evidence that had already been given. Taking that into account with the factors of delay that he had mentioned, the judge exercised his discretion in the way that he did because he simply did not think it was fair for the further evidence to be called in the circumstances, particularly in light of the evidence that had already been given (so far as straight leg plasters were concerned) by all the experts. 50 I do not think the judge either intended to indicate or did indicate that he was going to put the question of straight leg plasters out of his mind, or that he would have been right in doing so, in considering the question of liability. 51 Finding 6. was contested in the sense that counsel for the defendants said that any liability of the hospital was not vicarious but based on a non delegable duty of care. The hospital's liability on the latter basis was not contested if the earlier appeal points failed. Accordingly it is unnecessary to decide whether in the circumstances of this case the hospital's liability is vicarious or direct. 52 In my opinion the defendants' appeals against the finding of liability should not be upheld. 53 Calculation of damages. Under ground 25 in the notice of appeal two points were raised. The first was that the trial judge was in error in concluding that but for Dr Bedville's negligence the plaintiff had prospects of total recovery of 80%; the second that the trial judge's assessment of the plaintiff's damages was excessive. 54 The first of these points was based on (i) the fact that Murray AJ approached the assessment of damages on the footing that the defendants' negligence had caused the plaintiff to lose the chance of the fracture uniting without the need for surgery; (ii) Dr Seaton's evidence that the chance of such an outcome exceeded 50% in the case of a transverse fracture and (iii) Murray AJ's view that the fracture was transverse rather than spiral. 55 It was submitted that in view of the judge's acceptance of Dr Seaton's evidence, he had to arrive, on his approach, at a figure less than 80%. 56 However, I do not understand Murray AJ to have been basing himself solely on Dr Seaton in this part of his reasons. He said that "according to the evidence, the plaintiff stood a very good chance, if properly treated ..." of full recovery without surgery (my emphasis). It was this chance he evaluated at 80%. The evidence included that of Dr Peters, also generally accepted by his Honour, to the effect to the effect that had the plaintiff's fracture been appropriately treated and plastered from the beginning, it would have healed without the need for surgery and of Dr Tinning who put the likelihood at 90% for both spiral and transverse fractures. In view of this, I do not see any merit in the defendant's criticism of his Honour's assessment. [2] 57 As to the question whether the general damages were excessive, I am of the view, having read the evidence concerning the plaintiff's pain until the time of the amputation, amply supported by Dr Peters and the plaintiff's wife and having read the account of the plaintiff, and more particularly and vividly that of his wife, of the effect upon his life of the amputation, that the assessment made by the trial judge is one which could be reasonably reached by a trier of fact, particularly in an area where there are so many different factors in play which could affect different reasonable minds quite differently.

The remaining matter is the further ground which the defendants sought to add to the notice of appeal. This was that what was conveniently called pre-trial interest should not have been allowed at the commercial rates referred to in the court's Practice Note. The plaintiff opposed the addition of the ground. The argument started with the assertion that if the plaintiff had not been kept out of his damages between accident and trial, he should be treated as having invested it during that time at commercial rates and that since it is now established that that kind of interest is not taxable ( Whittaker v Federal Commissioner of Taxation (1998) 153 ALR 334) the plaintiff should not have been allowed the taxable component, because this would give him a double recovery. [3]

For the plaintiff it was submitted that the point was not taken at the trial and had it been, it could have been the subject of evidence. The court accepted this submission and refused to allow the defendants to argue the point. The basis of the court's decision was the considerations of fairness explained in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and like cases.

Conclusion . 58 In my opinion the appeals of both defendants should be dismissed with costs. 59 Postscript. Since writing the above I have read the opinions in draft of Handley JA and Fitzgerald JA. The position now stands that I would dismiss the appeal, Handley JA would allow it and enter judgment for the appellant defendants and Fitzgerald JA would allow the appeal and order a new trial. It thus appears that two of the three judges are against entering judgment for the defendant appellants and two against dismissing the appeal. It would appear to follow that the orders proposed by Fitzgerald JA are the only logical ones for the court to make, and for that reason (alone) I feel obliged to join in the court's making them. 60 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Priestley JA in draft form. He has set out the issues and the basic facts. I have come to a different conclusion in the result and must express my reasons, but need not cover many of the matters that he has referred to.

Appeal from decision of Master Greenwood 61 On 5 July 1994 the Master dismissed applications by both defendants to have the action dismissed for want of prosecution. The defendants elected to allow the action to go to trial. Following the judgment entered by Murray AJ in favour of the plaintiff for $382,046 on 19 December 1997, the defendants appealed as of right to this Court. The notice of appeal challenged not only the judgment of Murray AJ but the earlier orders of Master Greenwood. The respondent objected to the competency of any challenge to the Master's orders at this stage. 62 The orders were interlocutory, both on principle and on the authority of Birkett v James [1978] AC 297, 317, and an interlocutory appeal lay as of right to a Judge of the Common Law Division. However it is well established that a litigant need not appeal from an interlocutory order immediately but may await the final judgment, and in an appeal from that can challenge any interlocutory order which affected the result. See Crowley v Glissan (1905) 2 CLR 402; Bunning v Cross (1978) 141 CLR 54, 82; National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223, 231, 237-8. The challenge to the Master's orders in the appeal from the final judgment is formally competent. 63 The trial took place almost three years after the Master's orders and lasted four days. If the challenge to the Master's orders succeeded, that court time, and the very substantial costs incurred in the trial, would have been wasted. 64 Although the appellants' challenge to the Master's orders is formally competent, and there is no res judicata estoppel, it does not follow that an appellate court will uphold grounds of appeal, after trial, which if pressed in an interlocutory appeal would have prevented that trial taking place. 65 In Ramton v Cassin (1995) 38 NSWLR 88 this Court, by majority, refused leave to appeal from a decision of the District Court extending the time for the commencement of proceedings under the Motor Accidents Act. The majority, for reasons given by Cole JA, held that any challenge to an interlocutory order of this kind should be deferred and included, if necessary, in an appeal from the final judgment. Kirby P dissented. 66 The inconvenience of the principle endorsed by the majority is manifest. An erroneous interlocutory order which allows proceedings to be commenced or continued should, if possible, be corrected before trial, not later. Where the proceedings are pending in the District Court or were heard by a Divisional Judge in the Supreme Court, the requirement for leave enables this Court to determine, summarily and without undue delay or expense, whether an interlocutory appeal can be brought. 67 Leave will be refused unless the proposed appeal has substantial prospects of success. Where leave is refused, or an interlocutory appeals fails on the merits, a renewed challenge after final judgment is unlikely to succeed, and may be barred either by an issue estoppel or as an abuse of process. Where leave is granted and the appeal is allowed the parties will be saved the costs of the trial and court time will not be wasted. 68 The Court has not adopted the practice favoured by the majority in Ramton v Cassin. Leave to appeal is almost invariably sought by defendants who wish to challenge interlocutory orders of this kind and is readily granted in proper cases. The position is quite different where reversal of an interlocutory order would not avoid a first trial, or require a second trial. In this class of case the Court has been frugal in the grant of leave for the reasons given by Jordan CJ in In the Will of Gilbert (1946) 46 SR (NSW) 318, 322-3. 69 These defendants did not appeal from the Master's orders to a Judge of the Common Law Division. Such an appeal could have been heard and determined without delaying or disrupting the trial. 70 A defendant aggrieved by an interlocutory order allowing proceedings to be commenced or continued, who has a proper opportunity to challenge that order before trial but allows the action to go to trial, may be held to accept the correctness of the order so as to be estopped from challenging it later in an appeal from the final judgment. Such a defendant may be taken to represent to the plaintiff that he accepts the correctness of the interlocutory order and has decided not to challenge it. 71 The availability of an estoppel which prevents an appellant from commencing or prosecuting an appeal, or being heard to argue particular grounds of appeal, has been considered in a number of cases. The authorities were reviewed by Barker J in Hitchcock v Cameron [1977] 1 NZLR 85, 87-8. Subsequent decisions include Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 and Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd [1985] AC 511, 522, 525. These cases establish that the ordinary principles of estoppel can apply in the conduct of litigation. See generally Spencer Bower, Turner and Handley "Res Judicata" 1996 p 230 and VACC Insurance Ltd v B P Australia Ltd (1999) 47 NSWLR 716, 724-5. The prolongation of the litigation, with its attendant costs and pressures on the plaintiff, could provide the necessary detriment. See The Commonwealth v Verwayen (1990) 170 CLR 394. An estoppel against a belated challenge to such an order may be seen as a straightforward application of the principles in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 CA referred to later in these reasons. 72 The Court has not heard argument on these questions and their resolution is not necessary in this appeal because I agree with Priestley JA that the appellants' challenge to the Master's orders should fail in any event. 73 The plaintiff broke his left leg playing rugby league on 16 April 1978. He was operated on on 3 October that year and after many travails his leg was amputated on 3 March 1983. He commenced these proceedings in July 1980 but his solicitors failed to prosecute them with diligence. Proper requests by the solicitors for the defendants for particulars and a medical examination were ignored between August 1980 and June 1990. The defendants then filed motions seeking orders that the action be dismissed for want of prosecution. 74 One would have thought that the defendants had a strong case for the dismissal of the action. More than 12 years had elapsed since the injury and 10 years since the action was commenced. It had not yet been set down for trial, the plaintiff 's solicitors had failed over nearly 10 years to answer proper requests for particulars, and it would be some years before the action could be heard. The second defendant, Dr Bedville, was known to be in poor health. 75 Inexplicably the defendants failed to press their applications for the dismissal of the action. On 12 October 1990 the Prothonotary stood the Hospital's motion over generally by consent with liberty to restore on 7 days' notice. The second defendant's motion was dismissed by consent, with the plaintiff being ordered to pay that defendant's costs of the motion. These consent orders evinced an unequivocal acquiescence by both defendants in the action proceeding to trial. 76 Thereafter, as the Master found, the plaintiff did everything that was required of him and complied with all orders made by the Court. The principles which, in this State, govern the dismissal of actions for want of prosecution may not have been finally settled, but for the time being are those stated by this Court in Stollznow v Calvert [1980] 2 NSWLR 749 which affirmed the decision of Cross J reported only in Vol 2 of Ritchie's Supreme Court Practice [13022]. 77 However there is no reason to doubt the relevance of the statements of principle in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 CA, dealing with the effect of a defendant's positive acquiescence in the action proceeding to trial after inordinate and inexcusable delay. See also Roebuck v Mungovin [1994] 2 AC 224. In the former case Diplock LJ said at 260: "Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. … if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff 's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay". 78 Salmon LJ said at 272: "Mere inaction on the part of the defendant cannot in my view amount to waiver or acquiescence. Positive action, however, by which he intimates that he agrees that the action may proceed, is a different matter. If, for example, he intimates that he is willing for the action to proceed and thereby induces the plaintiff 's solicitors to do further work and incur further expense in the prosecution of the action he will be precluded from relying on the previous delay by itself as a ground for dismissing the action. Should there, however, be further serious delays on the part of the plaintiff after the defendant's acquiescence in or waiver of the earlier delay, the whole history of the case may be taken into account in deciding whether or not the action ought to be dismissed". 79 By 1990 the defendants had already suffered serious prejudice as a result of the inordinate and inexcusable delays on the plaintiff 's side. They suffered further serious prejudice after 1990, but there was no further unreasonable or inexcusable delay on the part of the plaintiff during this period. The Master was therefore entirely correct in refusing to dismiss the action for want of prosecution.

Liability 80 My reasons which follow need to be read against the general history of the plaintiff 's treatment by Dr Bedville between 16 April 1978, when the tibia in his left leg was fractured at football, and 14 September that year, when he was referred to Dr Clery, an orthopaedic surgeon. Priestley JA has covered this in his reasons. In his view the Judge's findings, including his acceptance of the plaintiff, are protected by the principles applied in Abalos v Australian Postal Commission (1990) 171 CLR 167, and are not within the exception held to be applicable in SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. Unfortunately I have not been able to come to the same conclusion. 81 This is an exceptional case on any view where the plaintiff was giving evidence in 1997 of events which occurred in 1978, 19 years earlier. He was also giving evidence against a doctor who died on 28 February 1991 and had been in bad health for some time before that (red 65). 82 The trial Judge accepted the plaintiff 's evidence "that he was in continual pain" throughout the whole period from 16 April until 14 September 1978 when he was referred to Dr Clery for surgery (red 85); and during this period was complaining to Dr Bedville about "excruciating pain". The plaintiff also said that the first plaster on his leg was not firm and that the rotation of his left foot, noted by Dr Bedville on 15 June, had existed from when the fracture occurred (red 85). 83 Dr Seaton took a history from the plaintiff in March 1995 that after the application of the second plaster on 25 April (should be 26 April) he was still in considerable pain, and there was painful grating at the fracture site (red 89). Dr Seaton considered that the presence of plaster sores on the front of the plaintiff 's left ankle, and the top of his left foot, were due to a loose plaster causing pressure on the skin. 84 The trial Judge found that the first plaster became loose when the haematoma at the fracture site subsided, accepting the plaintiff 's evidence to this effect, and finding corroboration in the development of the pressure sores (red 100). He made no express finding that the later plasters were also loose until the end of his reasons on liability when he said (101): "I also accept that it is probable that union did not occur in the plaintiff 's fracture because of looseness of the plasters, which in my view were not properly applied and adequately supervised". 85 In my judgment the trial Judge's findings, based on the uncorroborated oral evidence of the plaintiff that he continued to be in continual pain after the application of the second plaster, and continued to experience grating at the fracture site, cannot be supported. These complaints were not recorded in documentary form prior to the plaintiff 's examination by Dr Seaton on 29 March 1995 when they were part of his history to that doctor (2/119). The references to the plaintiff 's complaints of pain in hospital in the solicitors' letter to Dr Peters of 27 September 1989 (3/166) are contradictory but conclude at the bottom of that page with the statement "after the change [of plaster] there was no real further complaint of pain between 26 April … and the date of Mr Durant's discharge". 86 The hospital records contain frequent references to complaints of pain by the plaintiff between 16 and 26 April 1978, and to the regular provision of painkilling medication, in particular pethidine, during this period. See 2/59-62 (progress notes), 63-4 (drug recording sheets), 65-6 (prescription sheets), 77-84 (nursing records), 89-90 (resuscitation charts), and 92-3 (plaster observation charts). However there is only one record of a later complaint of pain, and no record of the administration of any further painkilling medication after 26 April when a new plaster was applied (2/83). The nursing records from 27 April, until the plaintiff 's discharge from hospital on 2 May, contain notes which, with one exception, show that he was no longer in pain. Relevant entries include: 27/4 Slept well plaster observations stable Satisfactory Satisfactory nil complaints 28/4 Slept well Patient has been relatively comfortable this morning … up on crutches Satisfactory To be up on crutches over weekend Patient is in high spirits but is complaining of pain in leg has been up on crutches Slept well 29/4 Patient has had a comfortable morning Patient has had satisfactory evening ambulating well on crutches Slept well 30/4 Patient has had comfortable morning nil complaints of pain Satisfactory evening ambulating 1/5 Slept well Up on crutches well today - coped with stairs well Home in two or three more days Satisfactory evening ambulating well nil complaints 2/5 Slept well Satisfactory - for discharge 87 The physiotherapy records (2/76) state before 1/5 "balance not very good yet" and on 1/5 "walking well with crutches. Able to manage stairs". The contrast with the plaintiff 's experience when mobilisation was previously attempted is stark. 88 The statement of claim filed on 12 June 1980 pleaded the unsuccessful attempt to mobilise the plaintiff on 19 April (the correct date was 21 or 22 April) and the falling sensation, grating sound and "feeling" (pain) at the fracture site. It did not plead that the plaintiff experienced grating and pain at the fracture site after the second plaster was applied on 26 April. Par 8 contained a general allegation of "severe pain and restriction of movement", but this was not related to the fracture site or to any particular period. The plaintiff was in pain for years after his initial surgery until his amputation. The particulars of negligence included failure to heed the plaintiff 's complaints "on or about 19 April that the leg had fallen and had a grating feeling and sound". There was no allegation that the defendants failed to heed the plaintiff 's complaints of pain or grating at the fracture site after the change of plaster on 26 April, or that he should not have been discharged on 2 May. 89 Dr Bedville's letter to the Medical Defence Union of 5 June 1980 referred to the plaintiff 's complaint and discomfort on 22 April when mobilisation was attempted, but does not mention any later complaint of pain (2/104). Dr Peters' report of 6 June 1990 refers to the pain the plaintiff experienced as a result of the attempt at mobilisation on 22 April, but did not refer to any other complaint of pain or painful episode or grating sensation at the fracture site while he remained in Dr Bedville's care (2/116). She did not claim that Dr Bedville was negligent in failing to act on the plaintiff 's complaints of severe pain or experience of grating after 26 April. As previously mentioned the instructions in the solicitors' letter of 27 September 1989 on this point are ambiguous, but suggest that complaints of pain ceased after 26 April. 90 It is not clear whether mobilisation was attempted on 21 or 22 April. The progress notes record an instruction for mobilisation on 21 April, but the report of the result is on the 22nd (2/62). The nursing notes for the 21st state "to be ambulant tt on crutches", (2/80), but the following morning he was reported as having slept well (81), and later that day there is an extensive record of complaints of pain, referrals to doctors, and the administration of painkillers. Dr Bedville stated that mobilisation was attempted on the 22nd. 91 On 10 October 1990 the plaintiff 's solicitors supplied the particulars requested by the solicitors for Dr Bedville more than 10 years before. They contained an allegation that the plaintiff experienced a sudden and sharp pain and a grating sensation and sound when mobilisation was attempted on or about 19 April but no allegation of continuing severe pain or grating at the fracture site after that date. There was an allegation that "on or before 26.4.78 and certainly before discharge from hospital on 3.5.78 the condition of the plaintiff was such that Dr Bedville should have arranged for an orthopaedic surgeon to attend the plaintiff immediately" (4/340-1). There was no allegation that he was negligent because he ignored or failed to take appropriate action in response to complaints of pain or grating after 26 April. 92 On 7 July 1992 the plaintiff provided a 5 page statement in letter form to his solicitors. He claimed that on 21 April he experienced "a sharp continuous stabbing" in his leg when mobilisation was attempted (2/126). He continued (127): "During the next few days, hospital staff administered pills and injections to help kerb the large amount of pain I was in". 93 He mentioned his fresh plaster on 26 April and that he then learned to use crutches and was discharged on 3 May. He said that after his discharge he saw Dr Bedville every 4-6 weeks. "On one such visit I told him about the large amount of pain I had around my foot area" (emphasis supplied) (127), but he made no other reference to pain. He also made no reference to grating at the fracture site, or any complaint about any of these other matters to Dr Bedville. His failure to mention pain or grating at the fracture site is significant in view of his mention of pain around his foot. 94 The first clearly documented complaint of continuing pain at the fracture site after 26 April 1978 appears in Dr Seaton's report of 27 April 1995. This included a reference to the pain the plaintiff experienced when mobilisation was attempted on 22 April and continued (2/119): "As a result only one week later another plaster had to be applied. It is apparent that the second plaster was no more successful than the first because the patient was still in considerable pain and there was painful grating at the fracture site … it is also known that the man was still in considerable pain after the second plaster was applied on 26 April because he was, at that time, taking large amounts of narcotic drugs for the pain … it would seem reasonable to have the leg checked out by a Specialist Orthopaedic Surgeon at the request of the nursing staff before the patient was discharged in pain with a loose long leg plaster". 95 Dr Seaton had received the hospital notes but no other documents (black 77, 126). He was not given copies of the earlier reports obtained by the plaintiff 's solicitors. He relied heavily on the history given to him by the plaintiff (88-9, 121), he had "very little else to go on" (121), "I did get all my information from the … plaintiff" (135). He concluded that the second plaster had not been properly applied because of the history of pain and grating at the fracture site he received from the plaintiff (122), and because the plaintiff said that "the pain was always there" (129). 96 The plaintiff 's wife, whom he married in August 1978, was asked about the plaintiff 's consumption of painkillers in the period between 2 May and early October when he went into hospital again, but said she could not answer that question because "I didn't watch when he took tablets and when he didn't" (116). 97 The plaintiff gave oral evidence that he continued to experience a lot of pain after the second plaster was applied on 25 April (sic), he was not free from pain (black 8), and following his discharge he had pain all the time in his leg, excruciating pain (10), and he was never pain free in the period prior to seeing Dr Clery in September (13). The trial Judge accepted the plaintiff 's evidence that he did not complain "as much as previous" because Dr Bedville told him to stop whingeing (8). 98 The plaintiff 's evidence that he did not complain as much about his pain because of Dr Bedville's attitude is inconsistent with the hospital records which contain many such complaints up to 26 April and only one thereafter. The records reveal that the plaintiff 's complaints were dealt with sympathetically and that he received pethidine injections on many occasions. There is no reason for thinking that the nursing staff suddenly became unsympathetic on 27 April and refused him painkilling medication despite his complaints of pain. The hospital records are not just silent on this question. They contain many statements by different nurses after 26 April that the plaintiff had slept well, was in a satisfactory condition, and had no complaints of pain. He was successfully mobilised on crutches over a number of days and then discharged without any further complaint of pain being recorded. The plaintiff agreed in cross-examination that every time he complained of pain in the hospital he was given help (60), and that the second plaster was firmer and more comfortable (68). 99 The approach of the trial Judge to Dr Bedville's statement to the Medical Defence Union of 5 June 1980 was as follows (red 91): "It has to be viewed with caution as it is a letter to the doctor's insurer, and was written in the context where allegations of negligence were being made against the late doctor, and naturally, he would be defensive of his handling of the case. It has to be remembered that because of his death, the doctor is not available for counsel to expand upon the contents of the letter nor is he available for cross-examination". 100 This approach was entirely appropriate, but the trial Judge should also have applied the same approach to the plaintiff 's evidence. The plaintiff 's subjective honesty is not in question, but his reliability is. He was giving evidence about events 19 years earlier, he was vitally interested, and Dr Bedville was dead. The allegations did not appear in 1980, 1989, 1990 or 1992 when other allegations were made by the plaintiff, or on his instructions. They did not clearly appear anywhere in writing until 4 years after Dr Bedville's death. 101 The decisive factor in my judgment is that the allegations were contrary to a multiplicity of entries made in contemporary hospital records by a number of independent health professionals with no interest in suppressing the truth or recording falsehoods. The allegations are also contrary to the probabilities. Why would Dr Bedville's attitude discourage the plaintiff from complaining of pain to the nursing staff and the resident medical officers? Why would they ignore his complaints? Why would his pain not be obvious to staff assisting him while he was learning to use crutches? How could he have been discharged while suffering continuing pain? Why would he not have changed doctors after his discharge? Some of these questions could have been, but were not, put to the plaintiff in cross-examination, but they are all relevant when considering the probabilities. 102 The trial Judge was bound to scrutinise the plaintiff 's evidence very carefully to see whether it was true or untrue: Plunkett v Bull (1915) 19 CLR 544, 549 per Isaacs J. There is nothing to indicate that he did this. It is the task of this Court to determine the defendants' case "upon a consideration of the real strength of the body of evidence [they] presented": SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306, 321. For the reasons given the trial Judge's findings that the plaintiff suffered constant pain and grating at the fracture site after 26 April cannot be supported. In my judgment where there is any discrepancy between the hospital notes and the plaintiff 's evidence the Court should act on the facts recorded in the hospital notes. 103 The next factual issue concerns the looseness of the plasters. There can be no doubt that the first plaster had become loose by 21 or 22 April when mobilisation was first attempted. However this does not establish that the plaster was loose when applied. The hospital records state that the plaintiff had a large haematoma mid left shin on admission (2/53, 58, 59) with swelling (2/91). This was also noted by Dr Bedville (2/103). Swelling associated with a haematoma and fracture subsides over time and as a result an initial plaster cast can become loose. This is referred to by Dr Bedville (2/103, 104) and Dr Seaton also noted (2/120) the "tendency for the plaster to become loose as the swelling gradually recedes". See also black 141, and Dr Tinning (170). 104 Dr Peters refers to the movement between the ends of the bone when mobilisation was first attempted, but does not otherwise refer to the plaster being loose. Dr Seaton in his oral evidence said about the first plaster (89) "I'm not saying there is any negligence there because obviously the swelling was prevented". The transcript is somewhat garbled but the sense is clear. See also the reports of Dr Tinning (blue 2/140), and Dr Ellis (2/154, 158.) 105 There is no basis in the contemporary records for a finding that the second plaster was loose. In fact Dr Bedville noted that the new plaster felt tight at the fracture site and should be replaced if pressure persists (2/94). The plaintiff was discharged on 2 May (2/58) a week after this plaster was applied. He said that the second plaster was firmer (68). During the intervening period he was successfully mobilised on crutches with only one recorded complaint of pain after 26 April, and no record of grating. The plaintiff was followed up by Dr Bedville on 19 May, who noted "POP OK" (2/94) and did not record any complaint of pain or grating. Dr Peters in her report of 6 June 1990 does not suggest that the second plaster was loose (2/116). The plaintiff made no such complaint in his statement of 7 July 1992 (2/126), but complained of pain in his foot and said that this plaster was tight (2/127). The tightness of this plaster and the pain in his toes were also mentioned in the letter written by the plaintiff 's solicitors to Dr Peters on 27 September 1989 (3/167). 106 Dr Seaton inferred that the second plaster was loose because of the plaster sores observed on the ankle joint when it was removed on 14 June. He wrote in his report that a loose plaster moves with a piston action and causes pressure on the skin in this area (2/120). However Dr Ellis in his report of 25 September 1995 (2/156) stated that conservative treatment can be accompanied by pressure sores, and in his second report said that a plaster sore on the foot does not necessarily mean that there is a loose plaster moving with a piston action (2/161). Since the plasters were toe to waist (18), it would seem that piston action movement was impossible unless the plaster was loose over the foot. Moreover the plaintiff said that he only noticed the black area on his ankle after the fourth plaster (18-19, 54). 107 There is nothing in the contemporary records to indicate that the fourth plaster applied on 16 June was loose. Dr Bedville records (2/94) on 19 June that it was "fair" and that the plaintiff felt pressure at the fracture site. He noted that it should be replaced after 3 weeks if pressure persists, and arranged to see the plaintiff at that time. He saw the plaintiff again on 10 July and an x-ray was taken. A fresh plaster was applied on 12 July and Dr Bedville noted on the 13th "POP OK" (2/94). 108 The statement of claim did not include any allegation that any of the later plasters were loose. The particulars of 10 October 1990 (4/340) did not include this allegation. The solicitors' letter of 27 September 1989 to Dr Peters (3/165) contained no such allegation either. 109 The fracture did not proceed to union prior to surgery and at all times the ends of the tibia were free to move unless they were restrained by a firm plaster. After his discharge the plaintiff was getting around on crutches and any movement of the bones at the fracture site would have caused severe pain and grating similar to that experienced on 22 April. Dr Seaton thought that this was what was occurring (2/119). 110 The plaintiff 's continuing acceptance of conservative treatment by Dr Bedville after his discharge shows that he was not aware of any major problems and was not in pain. These facts, coupled with the matters earlier referred to, demonstrate that the plaintiff 's oral evidence to the contrary was not reliable. 111 The next critical, but implicit, finding by the Judge was that the plasters after the first were straight (red 85, 88, 89, 101). It was common ground that a full length plaster, such as those applied or directed by Dr Bedville in his treatment of the plaintiff, should be slightly bent at the knee and ankle. The statement of claim was silent on this question, as was the solicitors' letter to Dr Peters of 27 September 1989, and her report of 6 June 1990, but the particulars supplied on 10 October 1990 stated (4/341): "Dr Bedville should not have allowed the plaintiff 's leg to remain in a straight plaster cast for some five months". 112 The particulars might suggest that the first plaster was also straight, but the plaintiff said in evidence that he was not sure whether the first was bent at the knee (5), but the second was straight (7), and so were the others (12). His statement of 7 July 1992 was silent on these questions. There is nothing in the hospital notes, or those of Dr Bedville, to indicate that the plasters were not flexed. There was no reference to the application of straight plasters in the report of those orthopaedic specialists who saw the plaintiff between 1980 and 1982. Two of these specialists recorded detailed histories (2/131-139). 113 Dr Bedville applied the first two plasters, a physiotherapist the last three. Dr Bedville was not available at trial to answer this allegation first made 10 years after the event at a time when he was already unwell and only 5 months before his death. Dr Peters said that a full length plaster must be flexed at the knee "a slight degree of flexion of 170 degrees" (24). She was not asked any questions about the practice of the hospital physiotherapists in 1978. Dr Seaton said in his report (2/120): "The presence of plaster sores in this area is due to a loose plaster which is moving with a piston action and causing pressure on the skin in this area. This infers that the plaster was loose and it is doubtful that the knee of the affected leg was placed in the accepted position of 10º to 15º of flexion". 114 He said in his oral evidence that a full length plaster should have 15 degrees flexion at the knee (129), but relied on the plaintiff 's history of pain and grating and the presence of plaster sores for his conclusion that the plasters were not properly applied (128, 130). He said that the most common site for plaster sores is around the fracture site (131). 115 Again there is no written record of the existence of plaster sores on the plaintiff, while he was being treated by Dr Bedville, (other than the evidence about black discolouration on the ankle) prior to Dr Seaton's report of 27 April 1995 (2/119). The statement of claim, the 1989 letter from the solicitors to Dr Peters, her 1990 report, and the plaintiff 's 1992 statement contain no reference to the existence of such sores, although the 1992 statement does refer to black discolouration on the ankle (2/127). 116 Dr Tinning's report did not deal with the question of straight plasters, but he said in his oral evidence (166-7) that a straight plaster was unacceptable. Dr Ellis said in his first report that conservative treatment may cause pressure sores (2/156) and in his second report (2/161): "The presence of plaster sores is not referred to in the documents … If indeed there was a plaster sore on the foot, it does not necessarily mean that there is a loose plaster 'moving with a piston action'. To say that this infers that the plaster was not put on in the accepted position of 10 to 15º flexion is, in my opinion, quite unwarranted". 117 He said in his oral evidence that pressure sores (which presumably are plaster sores) can occur if the plaster is too loose or too tight (191) and that a long leg plaster should be bent at the ankle and at the knee, and that a perfectly straight plaster would not have been a correct plaster for the plaintiff (186). He said that in 1978 a country general practitioner who had had experience since 1954 in the treatment of fractured bones, including tibiae, would know that a long leg plaster would have to have a degree of angulation at the knee (192). He added that a plaster at an angle of ten degrees at the knee "could well look straight to an untrained eye" (192). The allegation that the later plasters were straight, made for the first time ten years after the events, is inherently unreliable. The findings that they were straight and that there were plaster sores on the plaintiff (other than the black discolouration) while he was being treated by Dr Bedville cannot, in my view, be supported. 118 At the close of evidence on the last day of the trial counsel for the defendants made an application to lead evidence the next day from a witness in Tamworth who had only just been located who had been the head of the physiotherapy department at the hospital in 1978. The proposed evidence would relate to the practice of that department in the application of plasters to a fractured leg and to the "appropriateness of a straight leg plaster rather than one which is set at an angle" (red 79). This was opposed on the ground that the evidence of this witness had not been put in cross-examination to Drs Peters and Seaton and was not relevant (black 195). The Judge refused the application. It is not clear either from the note of the argument or the Judge's reasons that the witness would have given evidence that the practice was to apply long legged plasters with flexion at the knee. That could have been crucial evidence which, in the interests of justice, should have been allowed, but I agree with the trial Judge that general evidence on the matters noted in the transcript and in his reasons was of doubtful utility. The attack on this ruling has not been made good. 119 The Judge's findings expressed as conclusions (99-101) repeat findings earlier in his reasons which I have already held cannot be supported. He also referred (100D) to the absence of any notation by Dr Bedville of his attendance on the plaintiff during the period when the haematoma was subsiding. He had earlier said that the nurses' notes indicate that the plaintiff had not been seen by Dr Bedville after 20 April until 25 April (94H). These findings are contrary to the contemporary records. The progress notes contained hand written entries by Dr Bedville on 19 and 23 April (2/62) (compare Dr Bedville's handwriting on 2/95-6), and the nursing notes record his attendances on the 20 April (2/80) and on 24 April (2/82). The 21st and 22nd April 1978 fell on Friday and Saturday, and the nursing notes for those days record contact with and attendances by Dr Bedville's partners, Drs Fisher and Richardson. 120 The Judge found that Dr Bedville paid insufficient attention to the incident which occurred on 22 April when an attempt was made to mobilise the plaintiff. However the nursing notes record that the RMO ordered bed rest (2/81P) and contact was made with Dr Bedville who saw the plaintiff the following day (2/81) when he decided that the plaster should be changed under general anaesthetic on 25 April (2/62). The procedure in fact took place on 26 April. 121 The Judge said that Dr Bedville left it to his colleagues to oversee the plaintiff on 22 and 23 April (94, 100) but the correct dates were the 21st and 22nd. The plaintiff was seen on Sunday the 23rd by Dr Bedville (2/62), and by his partner, Dr Richardson (2/82). Nothing turns on Dr Bedville's absences on the 21st and 22nd, especially if mobilisation was not attempted until the 22nd. After the attempt at mobilisation, the plaintiff remained on bed rest and painkillers. It was not negligent of the doctor to work a five day week, there was no emergency, the plaintiff had access to his partners, and his absence on these two days was not shown to have caused or materially contributed to his later problems. 122 The Judge found that Dr Bedville failed to properly monitor and co-relate the x-rays, particularly the significance of the angulation and the report of normality in the face of the plaintiff 's complaints in what must have been evident: the degree of rotation and inversion of the foot. He had earlier found that on 17 April the plaintiff had been concerned "at the degree of rotation of his foot" (83), and that the rotation noted by Dr Bedville in his notes on 15 June "had existed according to the plaintiff from when the fracture first took place" (85). Later he said (101) that the plaintiff should have been referred to a specialist "on 14 & 15 June when there was unacceptable rotation and inversion of the foot". 123 There is no contemporary evidence that rotation of the plaintiff 's leg and inversion of his foot had been observed at any time prior to 15 June. The progress notes for 17 April record that the plaintiff asked to see his x-rays "re report of angulation" and there is a note "lateral only 17/4 available - angulation ? acceptable" (60). There is no other record anywhere in the hospital notes, or in the nursing notes, of any problem with the alignment or angulation of the plaintiff 's fracture prior to his discharge. However Dr Peters in her report said that the second x-ray showed the tibia not to be in good alignment (2/118). 124 X-ray reports dated 16, 17, 23 and 26 April, 12 July and 7 September are in evidence or are referred to in the evidence. The x-ray taken on admission was reported as showing that the fractured tibia "remains in satisfactory position" (2/75). The x-ray taken on 17 April after the first plaster was applied was reported as showing "slight lateral angulation at the site of the fracture" (2/75). Dr Bedville said in his letter that "this was not considered functionally significant at this stage" (2/103) and his contemporaneous note was "post POP position OK" (2/94). Dr Seaton referred to this report (2/119) but he relied principally on the plaintiff 's history. 125 Dr Tinning in his first report said that the slight lateral angulation "is not of significance at this stage in the management of the fracture" (2/142). He said, despite Dr Peters' view, that it was arguable whether the x-ray showed the tibia "not to be in good alignment". Dr Ellis said that the slight angulation "was not unacceptable" (2/154). 126 The plaintiff 's leg was x-rayed on 23 April after the unsuccessful attempt at mobilisation. The report stated that "the fragments remain in satisfactory position" (2/72). A pre-operative x-ray taken the day the second plaster was applied (2/104) was reported as showing "position remains good" (2/71). No further x-ray was taken before discharge. 127 There is no evidentiary basis for rejecting these x-ray reports which are inconsistent with the plaintiff 's evidence that rotation and inversion were evident from the time of the fracture. The slight lateral angulation noted on 17 April did not evidence the existence of rotation or inversion. 128 The only recorded complaint about the orientation of the plaintiff 's left leg was on 17 April. The Judge said that the degree of rotation and inversion of the foot "must have been evident" (100L), but the absence of any record about this is telling. Any noticeable inversion must have been very obvious when the plaintiff was learning to use crutches. Dr Bedville noted "POP OK" when he saw the plaintiff on 19 May (2/96). 129 After the plaintiff was discharged from the hospital, he was treated at Dr Bedville's surgery until he was referred to Dr Clery (2/127, 3/167). The later plasters were applied by the hospital physiotherapist (black 9, 2/104). Dr Bedville recorded on 15 June, following the application of the third plaster, "rotation of (L) foot with inversion in new POP" and directed the physiotherapist to replace the plaster (2/94). He followed up this direction on 19 June and reported that the replacement plaster was "fair". All this strongly suggests that rotation and inversion appeared for the first and only time on 14 June and was promptly corrected. 130 The next x-ray was taken on 12 July. Dr Bedville's letter said that the report stated "there is very little evidence of any firm bony union … disuse osteoporosis is noted". Dr Tinning said this is present in all fractures and is taken for granted (164). It is a feature of conservative treatment (Dr Ellis 2/156) and occurs because the bone has not been weight bearing (182-3). There was no reference to rotation or inversion. The doctor continued "personal perusal of the x-ray indicated only slight callus, and the position was satisfactory" (2/105). A fresh plaster was then applied. 131 The plaintiff was married on 26 August 1978 with his left leg in the long plaster applied on 12 July which was covered with trousers (146). However the existence of appreciable inversion of the foot would have been obvious, but there is no record of any complaint or comment. The final x-ray before surgery took place on 7 September. Dr Bedville said that the report read "the position is unchanged. Union remains incomplete and in fact shows no improvement from the 12 July 1978" (2/105). There was no reference to rotation or inversion. The plaintiff was then referred to Dr Clery. 132 There is no allegation in the statement of claim, or in the particulars of 10 October 1990, that there had been rotation of the plaintiff 's left leg or inversion of his foot while he was in the plasters. Dr Peters referred in her report to the existence of 30 degrees' external rotation of the ankle (2/118), but this was the result of the second operation by Dr Clery (2/118). The plaintiff 's statement referred to the angulation noted in the second x-ray, but not to any rotation or inversion while he was in the care of Dr Bedville (2/126). The finding (100 J-M) of rotation and inversion while the plaintiff remained under Dr Bedville's care, except between 14 and 16 June, cannot be supported. 133 The Judge held that Dr Bedville should have consulted an orthopaedic specialist at the outset, again after mobilisation was unsuccessfully attempted, again on 15 June when he noticed rotation with inversion, and finally on 10 July when the x-ray revealed no evidence of good union. He also found that the doctor was negligent in initiating and persisting with conservative treatment for 20 weeks, without referring the plaintiff to an orthopaedic specialist, and in failing to attend and supervise the application of the later plasters. 134 Dr Bedville was a country general practitioner. The only evidence about his skill and experience is that contained in his letter to the Medical Defence Union as follows: "… since graduating in January 1954 I have had experience under the auspices of consultant orthopaedic specialists at various hospitals, and in my years as a General Practitioner in Tamworth - prior to the advent and assistance of local specialist Orthopaedists - I have had the care, treatment and responsibility of a considerable number of fractures, including fractured tibiae". 135 The evidence does not disclose when the doctor established his practice in Tamworth, or when he became a visiting medical officer. Dr Peters said that she didn't know Dr Bedville's background with fractures (32). During 1978 he was practising in partnership with at least two other doctors. There was no challenge to any of his statements although Dr Peters, who was a resident medical officer at the Hospital in 1978 and 1979, was called in the plaintiff 's case. 136 The Judge found that this was a transverse fracture and it was common ground that conservative treatment of such fractures takes longer to achieve union and union will not be achieved in a percentage of cases. Dr Peters said that transverse fractures are "notoriously difficult to heal" (21) and may take 24 weeks to unite (2/118, 24) . Dr Seaton said that a spiral fracture heals more rapidly and easily than a transverse one. Dr Tinning said (2/144, black 151, 163) that there is a small percentage possibility of failure of union despite adequate treatment and that in 90% of cases you would get progress to union after 12 weeks (164). Dr Ellis said that a transverse fracture is fundamentally and mechanically unstable (178), and an intact fibula can act as a strut which holds the broken tibia apart (2/154). He said "Every orthopaedic surgeon knows of cases that have been treated well by conservative treatment but have not united after … five months" (2/162). 137 Dr Peters criticised Dr Bedville for being absent when the physiotherapist applied the later plasters and unable to supervise and assist (22, 24). She said that with a correctly applied plaster and no weight bearing, all other things being equal, the outcome would be favourable and that surgery was not necessarily required (25). The plaintiff would have had a better chance to save his leg if he had been referred in those early days to an orthopaedic specialist. 138 She said about her reference to "many varying opinions regarding tibial fractures" (34): "There are ranges of, slight differences between people that treat fractures. Nine surgeons might treat it one way and five might treat it another way". 139 Dr Seaton said that one would have expected a hands-on effort from Dr Bedville when the later plasters were applied to make sure that they were put on correctly, for the sake of stability in the leg, and to see that it was in correct alignment (70, 123). He thought that the plaintiff should have been referred to a specialist at the outset (135-6) and that this should have occurred on 15 June at the latest when Dr Bedville observed rotation and inversion after the third plaster (71, 141). 140 He said almost in the same breath that the general rule was to proceed to surgery, but that correctly plastered there was a better than 50% chance of successful union (72). He said that the lack of union after 20 weeks was due to an inadequate application of the plaster cast (87), but agreed that this depended on the history of grating 6-8 weeks after the plaintiff had been put in a cast (87, 88-90, 121, 140). 141 He agreed in cross-examination that "the only basis" for his conclusion that the second plaster was not properly applied was his belief that the plaintiff was still in considerable pain with grating at the fracture site (122, 129-130), and the development of plaster sores (128). 142 The opinions of Dr Seaton that the plaintiff should have been referred to a specialist at an early stage, and certainly by June 15, and that Dr Bedville should have been actively involved in the application of the third and subsequent plasters, do not depend on the history he obtained from the plaintiff. However if that history is rejected, as I have held it should be, his other opinions must also be rejected. 143 The decision to attempt conservative treatment was not itself negligent. There was evidence that surgical intervention could bring complications due to the risk of infection. The defendants tendered Dr Claffey's report to Dr Peters of 22 August 1980, his report to the plaintiff 's solicitors of 29 July 1987, and the reports to the plaintiff 's solicitors, of Dr W G Taylor of 6 November 1981, and Dr Sturrock of 18 June 1987. The Judge disregarded these reports because, in his view, they were based on incomplete and inaccurate histories, or were irrelevant. He said that Dr Taylor's report was unhelpful because he took "an unduly benevolent view of the actions of both the nursing and resident staff, and the treating doctor" (99). 144 The Judge's reasons for disregarding these reports largely depend on his earlier findings which I have concluded cannot be supported. The reports become persuasive when considered in the light of the findings which should be made. Dr Claffey saw the plaintiff on 22 August 1980 and presumably took a history. He also saw "reports", presumably provided by Dr Peters, which appear to have included the reports on the hospital x-rays (2/131). He concluded that the plaintiff "was apparently adequately treated in an above knee plaster". He could not have said this if he had been given a history, either by the plaintiff or Dr Peters, of loose plasters, straight plasters, and continuous pain with grating at the fracture site after the application of the second plaster. 145 Dr Claffey's second report was to the solicitors and it would be reasonable to suppose that he was informed of the allegations of negligence against Dr Bedville in the statement of claim. Dr Claffey said that it was not unreasonable or uncommon for a first plaster to be changed after 10 days because it becomes loose when the swelling goes down. He said that the treatment during this period was not abnormal or unnecessary and was compatible with good medical practice (2/134). 146 Dr Taylor saw the plaintiff on 6 November 1981 and recorded a detailed history. He refers to the x-ray reports (2/137). It would be reasonable to suppose that the solicitors informed him of the allegations of negligence in the statement of claim. He did not think that the slight lateral displacement seen in the x-rays taken on 23 April (should have been 17 April) would have had any effect on the ultimate non-union of the fracture, and said that it was reasonable to leave the operative treatment until one is sure that non-union is established. Operative treatment was not to be embarked on lightly, and 5 months was "not an undue time" for conservative treatment (2/137). 147 These opinions, reached with the benefit of a full history from the plaintiff a little over 3 years after the events, and access to the x-ray reports, are not affected by the criticisms directed by the Judge to other parts of that report. They are also consistent with the views of Drs Tinning and Ellis. 148 Dr Sturrock saw the plaintiff on 22 September 1982 and had the benefit of an extensive history from Dr Peters which he referred to in his report. When he wrote his report to the plaintiff 's solicitors on 18 June 1987, he was presumably aware of the allegations of negligence in the statement of claim. He wrote that non-union was "not at all uncommon in fractures of the tibia" and that he could see "nothing in the original treatment which was unnecessary or ill advised, nor do I believe that there is any reason to believe that it wasn't carried out in a competent manner" (2/138). Dr Peters had presumably mentioned to him her concerns about Dr Bedville's treatment which she referred to in her report of 6 June 1990 (2/116). 149 Dr Sturrock also stated that "failure of the fractures of the tibia to unite has been a long standing problem to orthopaedic surgeons. I can see no reason to believe that there was anything in this patient's initial treatment that would have predisposed for this man to develop non-union". The only criticism of this report by the trial Judge was that the doctor had assumed, or been incorrectly informed, that the plaintiff 's fibula was also fractured. In my opinion this error cannot significantly devalue his opinions, particularly those where the doctor was dealing generally with the treatment of fractures of the tibia. There was also evidence from Dr Seaton, which the Judge accepted, that union can be achieved more easily in a fractured tibia when the fibula is also fractured. 150 Dr Tinning said that the application of plasters by physiotherapists under Dr Bedville's direction, but without his supervision, was not inappropriate (149), nor was his attempt at conservative treatment without early referral to a specialist (153). The rotation and inversion observed on 15 June would not necessarily have destroyed union because the fracture could be sticky and this could allow movement at the fracture site (158, 166). He would probably have supervised the application of the new plaster on 16 June (160). He thought that the most likely cause of the lack of progress was "just delayed union", not an improperly applied plaster (160). He said (166): "I don't think the episode where there was a change of plaster and then another change of plaster because of rotation, … in itself was a significant episode towards non-union … it is not my assumption that (union) is largely destroyed. You don't necessarily destroy it. The amounts of union you have got is sticking and … it can be moved without destroying it and you could put the limb in another rotated position, but you don't necessarily destroy the uniting bone which is not yet hard". 151 A great deal of his cross-examination was based on an incorrect or unreliable history. He said in re-examination that you don't want to go to surgery with such a fracture unless absolutely necessary (173). 152 Dr Ellis said that he was not prepared to say that an experienced general practitioner was not a proper person to treat this fracture (185). He said that it was desirable under ideal circumstances for the doctor to be present when the plasters were changed, but he did not know what the circumstances were, or how good the physiotherapist was (187-8). He said that many people depend on an expert physiotherapist (188, 192-3), and that good and proper practice did not "require" the doctor to be present (191). 153 He said that 5 months of conservative treatment was "a perfectly reasonable time" (189), and that he did not believe that anyone could say that what Dr Bedville did was "wrong" (189). He did not think it was appropriate for Dr Bedville to refer the plaintiff to a specialist on 15 June (189). He considered that the movement of the bones in the unsuccessful attempt at mobilisation on 21 or 22 April would not make much difference to the progress of union, and would not "do any great damage to anything" (194). He said that rotation of the fracture when the new plasters were applied on 15 and 16 June would not have done the healing process much good, but would not necessarily have done it much harm either (188). A great deal of his cross-examination was based on an incorrect or unreliable history. 154 The evidence established that the plaintiff had up to a 90% chance of successful union given appropriate conservative treatment, although the Judge assessed damages on the basis that there was an 80% chance of success (111). The failure of conservative treatment to achieve union, without more, provides no evidence that the treatment was given negligently. Although the plaintiff 's prospects of successful conservative treatment may have been improved by referring him to an orthopaedic specialist at some time prior to September 1978, the failure to do this cannot, in itself, be negligent, nor can it establish that this caused the failure of the conservative treatment to achieve union. 155 At this stage, if my earlier conclusions are correct, the findings of negligence against Dr Bedville and the hospital are only supported by the evidence of Dr Peters, a general practitioner, and so much of Dr Seaton's evidence as survived the rejection of the history on which he relied. The principles which must be applied were established by Rogers v Whitaker (1992) 175 CLR 479. The majority in their joint judgment said: "… in matters involving medical expertise, there is ample scope for genuine difference of opinion and … a practitioner is not negligent merely because his or her conclusion or procedure differs from that of other practitioners; a finding of negligence requires a finding that the defendant failed to exercise the ordinary skill of a doctor practising in the relevant field [ibid 484] … that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion [ibid 487] … whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play" [ibid 489]. (emphasis supplied) 156 See also Naxakis v Western General Hospital (1999) 197 CLR 269, 275-6, 285-6, 297-8. 157 On the findings which I have held should be substituted for those made by the trial Judge, the case against Dr Bedville depends on the rotation and inversion with the third plaster, and the consequent need for the fourth plaster, and his failure to attend and assist at the application of the third and later plasters. The effect of the rotation observed on 15 June, and its correction when the fourth plaster was applied, was a question of fact to be determined on the expert evidence. There is no occasion for the application of a legal standard or the making of a value judgment. Dr Peters said that the rotation would have undone any earlier healing (23). Dr Seaton said that the rotation showed that there was no union (71, 135), and that the correct application of a full length plaster required three people (70). However Drs Tinning and Ellis thought that this rotation did not cause non-union. The Judge made no finding and there is no proper basis for preferring the evidence of Dr Peters on this point to that of Drs Tinning and Ellis. 158 The plaster change was not effected under a general anaesthetic. The plaintiff could see and feel what happened but he did not give evidence of any mishap or pain. I would therefore reject the evidence of Dr Peters (22-24) who thought that the rotation observed by Dr Bedville occurred when the foot became fully inverted under its own weight during the procedure. 159 It would obviously have been preferable for Dr Bedville to have been present when the later plasters were applied. However there was no evidence as to the other demands on his time on the relevant days. There is no evidence of the skill and experience of the physiotherapist, or whether she had the assistance of others. The plaintiff would have seen those present on these occasions (9), and he could have said whether the physiotherapist had assistance. There was no such evidence and I am not prepared to assume that the hospital physiotherapist lacked the assistance she required when fitting the last three plasters. 160 Three specialists who were qualified for the plaintiff, two of whom were his treating doctors, thought there was nothing wrong with the physiotherapist applying the last three plasters in the absence of Dr Bedville. This was also the view of Doctors Tinning and Ellis. The plaintiff did not call the three specialists or require their attendance for cross-examination after the defendants tendered their reports. It is a reasonable inference that those doctors were aware of the views of Dr Peters but did not accept them. Their reports were not made available to Dr Seaton in 1995 when he was asked to examine the plaintiff and report (76, 89). 161 As the High Court said in Rogers v Whitaker "there is ample scope for genuine difference of opinion and … a practitioner is not negligent merely because his … procedure differs from that of other practitioners" (ibid 484) and on the question of negligence "responsible professional opinion will have an influential, often a decisive, role to play" (ibid 489). 162 Acceptance of the evidence of Doctors Tinning and Ellis that in effect what Dr Bedville had done was regarded as proper by a responsible body of medical opinion does not require a finding that he was not negligent. It is still necessary to ask whether Dr Bedville failed to exercise the reasonable care and skill to be expected of an ordinary general practitioner and visiting medical officer professing to have the skill required for the conservative treatment of uncomplicated fractures. This question did not arise for the trial Judge in view of his findings. 163 The residual findings of the Judge are not protected by the Abalos principle and concern the evaluation of the evidence, oral and written, given by experts whose honesty and reliability were not in question. The issue involves the drawing of inferences, the application of legal principle to the facts, and the making of a value judgment. There is no occasion at this stage for deference to the views of the trial Judge. I would respectfully adopt the reasons given by Callinan J in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 270-1: "If a court at first instance … makes a serious error or errors of fact in a case of this kind, in which numerous facts are in controversy … an appeal court hearing an appeal from a decision flawed in [that] way should not be too ready to preserve other parts of the decision, which, if taken in isolation may not necessarily appear to be wrong. Any attempt at surgical excision by an appellate court of clear and relevant factual error … to leave other controversial factual findings intact will usually be unsatisfactory and unconvincing, and not such as to attract the confidence of the public and the losing litigant". 164 In my judgment the case against Dr Bedville and the hospital, as presented at the trial, should have failed. I am not persuaded that any requirement for Dr Bedville to be present when the later plasters were applied was other than a counsel of perfection, or that his absence bespoke negligence. Nor am I persuaded that the rotation and inversion observed by him on 15 June and corrected the next day caused, or materially contributed to, non-union. In my judgment therefore judgment should have been entered for the defendants. 165 Although there is no reason for me to address the other issues I would, in agreement with Priestley JA, reject the submissions that the plaintiff was destined for surgery in any event, that there was gross negligence in the surgery which broke the causal link with any earlier negligence, and that damages were awarded on an incorrect basis, or were otherwise excessive. 166 The plaintiff has had a wretched outcome from his contact with the health system following his fracture. The ultimate outcome may have been the result of negligence during his surgery, or simply the result of complications from his surgery which occurred without negligence. In my judgment they were not the result of any negligence during his conservative treatment by Dr Bedville and the hospital. 167 FITZGERALD JA: I agree with the other members of the Court that the Master's decision was correct and the appeal against that decision, if competent, should be dismissed, with costs. The other members of the Court also agree that a number of the appellants' arguments in relation to the trial judge's judgment and orders should be rejected. I agree and have nothing to add on those matters [4]. I will deal only with the issue on which the other members of the Court are divided. Their Honours' judgments allow me to do so briefly. 168 The respondent, Mr Durant, who was then aged 26, broke his left tibia while playing football at Kootingal on 16 April 1978. He was hospitalised in Tamworth Base Hospital, where his treating doctor was a general practitioner, the late Bryant Lewis Bedville. On 21, or more likely 22 April, Dr Bedville attempted to immobilise Mr Durant's broken leg by a plaster from his waist to the toes on his left foot. At least by 26 April, that plaster was loose and unsatisfactory. It was removed and a new plaster was applied that day. Mr Durant was discharged as an inpatient on 2 May but continued to be treated by Dr Bedville. Dr Bedville saw Mr Durant on 19 May and thereafter at intervals of about 4 to 6 weeks. The plaster on Mr Durant's leg was replaced three more times in June and July. His fractured tibia did not reunite. On 14 September 1978, he was referred by Dr Bedville to an orthopaedic specialist, Dr Clery, who operated on 3 October 1978. A revision operation was performed on 13 October. Complications developed, and Mr Durant's leg was amputated below the knee on 3 March 1983. 169 Meanwhile, in 1980 Mr Durant commenced his present action, which was tried in September 1997. In a judgment delivered on 19 December that year, the trial judge held that Dr Bedville was negligent and that the appellants, the hospital and Dr Bedville's estate, are liable to Mr Durant for Dr Bedville's negligence [5]. His Honour's conclusions were expressed in the following terms: Conclusions Having reviewed the available evidence and carefully considered the demeanour of the witnesses I have come to the following conclusions. 1. I find the plaintiff an entirely truthful witness, who, if anything, understated his case. I accept the reliability of his description of events. 2. The plaintiff's fracture was originally described by the resident medical officer of the hospital as a 'spiral' fracture. That assessment of it may have led Dr Bedville, a general practitioner, to elect to treat the plaintiff rather than have him referred to a specialist orthopaedic surgeon. This is speculation and not determinative of the issue. 3. Having undertaken the treatment of the plaintiff, the doctor embarked on the initial treatment in the usual way by plastering, as this was standard practice even though it was revealed on X ray to be a transverse fracture and the treatment was the same whether the fracture was spiral or transverse. 4. Dr Bedville neglected to properly supervise the plaintiff's treatment. This is revealed by - a) The absence of any notation of his attendance on the plaintiff during the period when the haematoma was subsiding with a consequence of the loosening of the plaster. I accept that the plaster was loose, both on the basis of the plaintiff's evidence and on the presence of the pressure sores that developed. b) Dr Bedville paid insufficient attention to the incident which occurred on 22 April 1978, when an attempt was made to mobilise the plaintiff and he noticed grating, excruciating pain, and a falling feeling at the fracture site. c) Dr Bedville left it to his colleagues to oversee the plaintiff during the period 22 and 23 April, and the significance of the plaintiff's complaints at that time was not realised by them. d) Dr Bedville failed to properly monitor and co-relate the X rays, particularly the significance of the angulation and the report of normality in the face of the plaintiff's complaints and what must have been evident, the degree of rotation and inversion of the foot. I accept the plaintiff's evidence that this rotation was evident from an early stage. e) He allowed the physiotherapist to supervise and apply the plasters on 14 and 15 June 1978. The result of the application of plaster on 14 June was, in the doctor's own words, ' an unacceptable rotation and inversion of the foot' . Presumably the physiotherapist corrected this on 15 September without the supervision of the treating doctor. One does not know what these procedures did to the fracture site 8 weeks after treatment was commenced. However, it is probably not surprising that subsequent X rays revealed lack of union. All this was done without the supervision of the treating doctor. 5. Significantly, 12 weeks after immobilisation, X ray reported little evidence of 'any union' yet, Dr Bedville persisted in treating the plaintiff conservatively and failed to seek the intervention of an orthopaedic surgeon. 6. Dr Bedville failed to realise, or take note of, the significance of the effect of the fact that the fibula had not been fractured and was therefore possibly keeping the fragments of the tibia apart. 7. At every step along they (sic) way, the late Dr Bedville could have sought the assistance of a specialist orthopaedic surgeon, and failed to do so. To my mind, there were a number of significant points at which specialist advice ought to have been obtained, which were - 1. When the plaintiff first presented at hospital with what was later diagnosed as a transverse fracture of the tibia not involving a fracture of the fibula. 2. During April 1978, in particular the days surrounding 22 April, when the incident occurred described by the plaintiff. 3. On 14 & 15 June, when there was unacceptable rotation and inversion of the foot; and 4. In July of 1978, when the late Dr Bedville made his own decision about the formation of callus at the fracture site and therefore decided to press on with conservative treatment. I consider there was a failure to professionally supervise the plaintiff's treatment, and in particular to pay attention to his complaints of 'excruciating' pain and the feeling of heaviness or falling at the fracture site. I accept the plaintiff's evidence that the late doctor's attitude was reflected by his dismissal of the plaintiff's complaints of pain as 'whingeing' and 'chilblains'. I also accept that it is probable that union did not occur in the plaintiff's fracture because of looseness of the plasters, which in my view were not properly applied and adequately supervised. For all these reasons, I consider that the late Dr Bedville was negligent and that the hospital therefore, was vicariously responsible for that negligence. There shall be a verdict for the plaintiff.

170 The authorities consistently confirm that an appeal court should defer to a trial judge's findings which were open on the evidence. A trial judge's advantages are obvious. It is also appropriate to recognise that a trial judge's findings often reflect the manner in which a case was conducted at trial and the matters which were then emphasised. Further, the assessment of evidence, including the determination of credibility and reliability, involves subjective evaluations upon which differences of opinion can legitimately be held without appealable error. 171 Priestley JA considers that the trial judge's conclusion that Dr Bedville was negligent was open on the evidence and is protected by the principles which control the appellate review of factual findings by a trial judge. His Honour would dismiss the appeal against the trial judge's judgment and orders. Handley JA would allow that appeal and dismiss Mr Durant's claim on the basis that the trial judge should have rejected evidence which was essential to Mr Durant's case. 172 Priestley JA considers that the trial judge's conclusion that Dr Bedville was negligent was justified by his Honour's finding that plasters [6] on Mr Durant's leg were loose and not properly applied and the expert opinion referred to by Priestley JA in paras. 33 to 38 of his reasons for judgment. The trial judge's finding that the plaster was loose was based on both Mr Durant's evidence and "the presence of pressure sores" [7]. With that qualification, evidence given by Mr Durant provided an essential evidentiary foundation for the material opinions and the trial judge's material finding and ultimate conclusion. 173 The trial judge accepted Mr Durant as a truthful witness whose description of events was reliable. Mr Durant gave evidence that: (a) during the period between his injury and his referral to Dr Clery, there was constant grating at the fracture site, Mr Durant was in continual "excruciating" pain and persistently complained to Dr Bedville until Dr Bedville told him to stop whingeing; and (b) the plasters applied to Mr Durant's leg were loose and straight, without an appropriate bend at the knee [8 ] 174 Handley JA has noted that an earlier statement by Mr Durant, histories recorded by some of the medical practitioners who Mr Durant consulted between 1980 and 1982, correspondence from his solicitors and his Statement of Claim and Particulars omitted references to some of the matters of which Mr Durant gave evidence and in some respects were inconsistent with that evidence. Mr Durant also made some concessions in cross-examination; for example, that the second plaster was firmer and more comfortable than the first plaster. Handley JA has also pointed to inconsistencies between contemporaneous medical records and Mr Durant's evidence. However, the hospital records relate only to the period when Mr Durant was in hospital between 26 April and 2 May, 1978. After 2 May, the date of Mr Durant's discharge from hospital, the only medical records are Dr Bedville's notes. And the contemporaneous medical reports are, in any event, incomplete. 175 Even if the trial judge should not have found that Mr Durant experienced grating and pain or made complaints while he was in hospital after the second plaster was applied, the documentary evidence did not oblige his Honour to reject Mr Durant's evidence that he experienced grating and pain, and complained to Dr Bedville until he was told to stop whingeing, after he came out of hospital. 176 Notwithstanding the opinion of Dr Ellis that a plaster at an angle of 10% at the knee "could well look straight to an untrained eye", there is even less reason to conclude that the trial judge was obliged to reject Mr Durant's evidence that the second and subsequent plasters were straight, not slightly bent at the knee, [9] as they should have been according to the expert testimony. As Priestley JA has noted, there was no evidence which directly contradicted Mr Durant's evidence on this point. 177 Mr Durant also gave evidence that his left leg was visibly rotated and his left leg was visibly inverted. Handley JA has pointed to the lack of contemporary evidence of visible rotation and inversion prior to mid-June 1978, and concluded that X-ray reports are inconsistent with earlier rotation and inversion and that the trial judge's conclusion that Dr Bedville failed to properly monitor and co-relate X-rays was mistaken. However, rotation and inversion were obvious after a third plaster in mid-June which was itself replaced no more than a few days later. The fourth plaster was removed and a fifth plaster applied on 12 July. 178 While the rotation and inversion of Mr Durant's leg and foot influenced the trial judge's conclusion that Dr Bedville was negligent in not consulting an orthopaedic specialist earlier than when he referred Mr Durant to Dr Clery, other matters also supported that conclusion. The fracture in Mr Durant's leg was a transverse fracture, which does not heal as rapidly and easily as a spiral fracture. The trial judge found that Dr Bedville should have consulted an orthopaedic specialist immediately, and that, in any event, subsequent events should have led Dr Bedville to consult an orthopaedic specialist before he did so; for example, when he noticed rotation and inversion on 15 June, when an X-ray on 10 July revealed that the fracture had not united, and as further time passed without union. There was expert evidence which supported his Honour's conclusion. There was also expert evidence to support his Honour's conclusion that Dr Bedville did not supervise and assist on occasions when his presence was required; for example, when Mr Durant's later plasters were applied by a physiotherapist. However, at least when taken in isolation, that omission is of limited significance. Dr Bedville continued to be involved in Mr Durant's treatment after the plasters were applied and had a continuing responsibility to ensure that they had been properly applied and were satisfactory. 179 There was a substantial conflict of opinion between the expert witnesses. Mr Durant's case was primarily dependent on the opinions of Dr Seaton and Dr Peters. Handley JA would reject those opinions. In the case of Dr Seaton, his Honour's view is at least partially dependent on the rejection of Mr Durant's evidence. More broadly, Handley JA prefers the evidence of other experts, whose opinions generally (although as Priestley JA has demonstrated not entirely) favour the appellants. Handley JA has made reference in this context to the decisions of the High Court in Rogers v Whitaker [10] and Naxakis v Western General Hospital [11], and in particular to statements in the former case which indicate that there is ample scope for differences of professional opinion and practice without negligence[12] and that responsible professional opinion has a influential, and often decisive, role to play in determining whether or not a course which resulted in injury was negligent. [13] 180 I agree with Priestley JA that there was sufficient expert evidence to support the trial judge's conclusion that Dr Bedville was negligent. I have earlier expressed my view that the trial judge was entitled to accept the substance of Mr Durant's evidence. The appellants are not entitled to succeed merely because there was substantial evidence inconsistent with Mr Durant's evidence, imperfections in the trial judge's discussion of the evidence, or a considerable body of expert evidence which was opposed to his Honour's conclusion that Dr Bedville was negligent. 181 In my opinion, this Court should not dismiss Mr Durant's claim. 182 With two comparatively minor exceptions, namely his Honour's findings that pressure sores indicated a loose plaster and that Dr Bedville should have sought the assistance of a specialist orthopaedic surgeon when Mr Durant "first presented at hospital with what was later diagnosed as a transverse fracture of the fibia", the trial judge's "Conclusions" all depended upon his Honour's acceptance of Mr Durant's evidence. The expert evidence which supported his Honour's conclusion that Dr Bedville was negligent was similarly dependent on Mr Durant's account of his experiences and treatment. 183 Although Mr Durant's evidence was not glaringly improbable or seriously weakened by internal contradictions, his evidence was given at a trial in 1997, 19 years after he was treated by Dr Bedville in 1978, and was not corroborated or supported by other evidence. Dr Bedville, the only person who could have directly contradicted Mr Durant's evidence, was dead. As Handley JA has demonstrated, there were inconsistencies between Mr Durant's evidence and the documentary evidence. The trial judge was obliged to scrutinise Mr Durant's evidence carefully and to give proper weight to any evidence which supported it and material inconsistent evidence. Inconsistent evidence is material for this purpose if it was accepted by the trial judge or, having regard to other evidence and the trial judge's impressions of the witnesses, should have been accepted. Demonstrated inaccuracy in any part of Mr Durant's evidence was also potentially relevant to the reliability of other parts of his evidence. 184 Reluctantly, I am compelled by the force of Handley JA's observations to conclude that the trial judge did not adequately consider the real strength of the evidence against his findings and the appellants are entitled to a new trial. It is most unfortunate that a plaintiff such as Mr Durant, who has experienced considerable misfortune and is at a substantial financial disadvantage relative to the appellants, must pay the costs of this appeal and bear the expense of further litigation, especially so long after he was injured. However, the trial judge's reasons contain no indication that he properly considered the substantial objections which can be made to his findings and conclusion. 185 In my opinion, the appeal against the trial judge's decision should be allowed with costs, his Honour's judgment and orders should be set aside and a new trial ordered. Mr Durant, if qualified, should have a certificate under the Suitors' Fund Act 1951. The costs of the first trial should abide the order of the judge at the new trial. ********** END NOTES

1. Some other examples from Dr Tinning's evidence are at Black AB 157 lines 23-49, 166 line 52 to 167 line 2; Dr Ellis's evidence at Black AB 186 lines 20-27, 190 lines 37-40, 191 lines 53-57.

In fact , some questions, were raised from the bench in argument about the need for any reduction at all, but as there was no cross-appeal, this was not pursued.

This same point had been argued by Mr Brereton SC, who appeared for the defendants in the present case, in an appeal the decision in which was reserved at the time the present case was argued, and in which judgment was delivered on 3 December 1999: see Fowkes v Parker [1999] NSWCA 442. The point did not succeed.

In footnote 2 to his reasons for judgment, Priestley JA notes an issue relating to the trial judge's calculation of damages which was not raised in argument. See also Bourke v MacNeil [2000] NSWCA 144, [240].

As noted by Priestley JA (para 51), the hospital did not dispute its vicarious liability for negligence by Dr Bedville either while Mr Durant was in hospital or after 2 May if its other arguments failed.

The argument was principally concerned with the second and subsequent plasters. Mr Durant's leg was bruised and swollen when the first plaster was applied, and the expert evidence established that the first plaster would have become loose as the swelling subsided. In any event, there was no evidence that any negligence in the first plaster continued to be operative after it was removed and replaced.

Although it does not follow that the trial judge was mistaken, the preponderance of expert evidence was probably against a finding that pressure sores, without more, indicated a loose plaster.

One or more expert witnesses, including the appellants' witness Dr Ellis, also stated that there should also be a slight bend at the ankle.

Overall, the expert evidence favoured another bend at the ankle.

Revision Reasons Hyperlinked End Notes added - 30/04/07

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