Supreme Court New South Wales Medium Neutral Citation: Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges v Dr Zaffar Hussain; Chantelle Sheree Bridges v Dr Zaffar Hussain [2023] NSWSC 18 Hearing dates: 18, 19, 20, 21, 22, 25, 26, 27 & 28 May 2020; 9 October 2020; 4 December 2020; 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 May 2021; 5, 6 October 2021 Date of orders: 09 February 2023 Decision date: 09 February 2023 Jurisdiction: Common Law Before: Bellew J Decision: (1) In proceedings 2016/131797, I enter a verdict for the defendant Zaffar Hussain. (2) In proceedings 2017/329472, I enter a verdict for the defendant Zaffar Hussain. (3) I will hear the parties on the question of costs. Catchwords: TORTS – Negligence – Proceedings brought against a general practitioner alleging negligence – Where plaintiff consulted the defendant on two occasions – Where the plaintiff was later diagnosed with Acute Lymphoblastic Leukaemia – Where the unchallenged expert evidence supported the appropriateness of the defendant's conduct – No breach of duty of care – Verdicts in favour of the defendant EVIDENCE – Assessment of credit – Where the credit of the plaintiff's mother and tutor was in issue – Where a period of 8 years elapsed between the relevant events and the hearing of the proceedings – Where the demeanour of the plaintiff's mother in giving evidence was combative and argumentative – Repeated failures to properly respond to questions asked – Instances where the plaintiff's mother adopted the role of an advocate – Where plaintiff's mother physically approached the defendant outside Court in the course of his cross-examination and remonstrated with him in an aggressive way – Finding made that the plaintiff's mother was an unreliable witness – Effect of that finding on factual findings bearing upon the issue of liability PRACTICE AND PROCEDURE – Service of expert medical evidence outside prescribed time periods Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 Onassis and anor v Vergottis [1968] 2 Lloyd's Rep 403 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 Category: Principal judgment Parties: Proceedings 2016/131797 Mia-Angel Bridges-Cole by her litigation guardian Chantelle Bridges – Plaintiff Dr Zaffar Hussain – Defendant Proceedings 2017/329472 Chantelle Bridges – Plaintiff Dr Zaffar Hussain - Defendant Representation: Counsel: A Campbell – Plaintiff (in each proceeding) M Hutchings– Defendant (in each proceeding) Solicitors: Gerard Malouf & Partners – Plaintiff (in each proceeding) Moray & Agnew – Defendant (in each proceeding) File Number(s): 2016/131797 2017/329472 Publication restriction: Nil Judgment INTRODUCTION 1. In about May 2013, Mia-Angel Bridges Cole (Mia-Angel) was diagnosed with Acute Lymphoblastic Leukaemia (ALL). Prior to that diagnosis, Mia-Angel's mother, Chantelle Sheree Bridges (Chantelle) had taken her to a number of medical consultations. Those consultations included, importantly, consultations with Dr Zaffar Hussain (the defendant) on 15 March 2013 and 28 March 2013. 2. What occurred at each of those two consultations with the defendant is a matter of considerable controversy. There are, in respect of each consultation, a series of factual issues as to (inter alia): 1. the signs and symptoms with which Mia-Angel presented; 2. the history which was provided to the defendant by Chantelle; 3. the nature and extent of the examination conducted by the defendant; and 4. the terms of conversations which took place between Chantelle and the defendant. 1. In the third further amended statement of claim which was filed in Court on 12 May 2021, the following is pleaded in respect of the first consultation with the defendant on 15 March 2013: [1] [8] In the days immediately preceding 15 March 2013, the Plaintiff was noticed by her mother to be not herself. The colour was draining from the Plaintiff's face and her hair was dry and had lost colour. She was lethargic and not participating in her regular daily routine and seemed to have gained weight and become puffier in the face. [9] The notes of [the defendant] stated that the Plaintiff had been vomiting for 5 days prior to 15 March 2013. [10] On the morning of 15 March 2013 at around 06:00 hours the Plaintiff woke up her mother up [sic] when she projectile vomited a large amount in the bed. [11] Later that morning, the Plaintiff and her mother attended the medical centre … (and) saw [the defendant]. [12] In the consultation with [the defendant] the Plaintiff's mother informed the Defendant that she had a big vomit that morning. [The defendant] indicated that he thought the Plaintiff might have gastro. During the consultation the Plaintiff's mother told [the defendant] that the Plaintiff's stomach was chubbier and she was eating and drinking a lot. The Plaintiff's mother requested a blood test, but the request was denied by [the defendant]. 1. The third further amended statement of claim pleads the following in relation to the second consultation with the defendant on 28 March 2013: [2] [13] Following the consultation on 15 March 2013, the Plaintiff's condition fluctuated. She was vomiting infrequently and not as large as the first projectile of vomit on the morning of 15 March 2013. The Plaintiff's weight was increasing. The Plaintiff was lethargic and did not want to walk during this period. [14] Following the consultation on 15 March 2013 the Plaintiff would indicate to her mother that she had a sore head. [15] On [sic] morning of 28 March 2013 the Plaintiff's mother noted that the Plaintiff had red blotches on her face, arms and legs. The Plaintiff went back to see [the defendant]. [16] The Plaintiff's weight had continued to rise and this ought to have been obvious to [the defendant]. The Plaintiffs mother asked [the defendant] if the condition was contagious. [The defendant] replied "No, no, just have an antihistamine before she gets on the plane". The Plaintiff was swollen in her arms, face, legs and stomach and in addition to the red marks/rash that appeared on her legs and arms and face. The Plaintiff's mother told [the defendant] about the persisting symptoms of vomiting and lethargy. [17] [The defendant] indicated to the Plaintiff's mother that the Plaintiff had hand, foot and mouth disease. The Plaintiff's mother again asked for blood tests to be performed, which was refused by [the defendant] who asked the Plaintiff's mother to leave. [18] On the same occasion, the Plaintiff mother was advised by [the defendant] that if she attended the medical centre, again, the reception staff would be informed that the plaintiff would not be allowed to see [the defendant]. 1. In circumstances where there is no issue that0 the defendant owed Mia-Angel a duty of care, the third further amended statement of claim pleads the breach of that duty as follows: [3] [41] [The defendant] failed to take precautions against the risk of harm that the plaintiff would suffer the damage from failing to treat her symptoms of persistent vomiting, severe aphthous ulcers, papalar [sic] rash on her mouth, hands and feet, abdominal pain, fever and a swollen stomach and weight gain due to an increase in the eating and drinking properly. [42] The risk of harm in the circumstances that the Plaintiff was presenting with symptoms consistent with a serious medical condition, including acute lymphoblastic leukaemia (ALL), which, if diagnosed, would have required immediate treatment in accordance with the appropriate protocols and any delay in treatment compromised the effectiveness of the treatment. [43] The burden of taking precautions against the risk of damage to the Plaintiff was minimal for [the defendant]. [44] [The defendant] knew or ought to have known that the risk of damage to the Plaintiff if [he] failed to investigate and/or treat her symptoms properly was foreseeable. [45] [The defendant] knew or ought to have known that the risk of damage to the Plaintiff if [he] failed to treat her symptoms was not insignificant. [46] [The defendant] breached the duty of care [he] owed to the Plaintiff by ● failing to refer the Plaintiff for a blood test; ● failing to examine the Plaintiff; ● failing to refer the Plaintiff for further investigation including, but not limited to, radiological investigations; ● failing to take heed of the Plaintiff's unresolving pain; ● failing to take heed of the Plaintiff's unresolving stomach swelling; ● failing to take heed of the Plaintiff's unresolving nausea and vomiting; ● failing to take heed of the Plaintiff's severe aphthous ulcers; ● failing to take heed of the Plaintiff's papular [sic] rash on her mouth, hands and feet; ● failing to take heed of the Plaintiff's severe fever; ● failing to refer the Plaintiff for specialist management; ● failing to refer the Plaintiff to a hospital for paediatric assessment. [47] But for the aforementioned negligence, the Plaintiff's acute lymphoblastic leukaemia (ALL) would have been diagnosed on or about 11 February 2013 or at the very latest by or about 29 March 2013. An earlier diagnosis of ALL would have led to earlier treatment. [48] If the plaintiff had received earlier treatment she would have avoided the following: The development of a significant subdural hematoma [sic] which caused brain damage due to intracranial pressure. The development of a significant subdural hematoma [sic] and the subsequent complications that arose from the repeated draining of the hematoma [sic] including infection of burr holds [sic] and the inability to effectively anticoagulate a sagittal sinus thrombosis that developed following asparaginase treatment. Development of communicating hydrocephalus. The progression of the leukemic [sic] process and its infiltration into the central nervous system. [49] As a result of the aforementioned injuries caused by the delay in diagnosis the Plaintiff became immunosuppressed and the attempt at chemotherapy treatment ultimately failed and the Plaintiff required radiation therapy. But for the complications listed above, the Plaintiff would have most likely responded to chemotherapy and her (ALL) would have resolved without the need for radiation. [50] The Plaintiff has sustained significant brain damage which has led to inter alia intellectual disability. This disability was caused by the delay in the diagnosis of the condition which itself made the leukaemia more difficult to treat because of the development of a subdural hematoma [sic] and the need for neurosurgical procedures and consequent delays in administering chemotherapy and the resultant failure of this treatment. THE DEFENDANT'S CASE 1. The defendant denies that he breached the duty of care that he accepts he owed to Mia-Angel. In that regard he relies principally upon the defence in s 5O of the Civil Liability Act 2002 (NSW) (the CLA) which is discussed further below. The defendant also pleads that Chantelle was contributorily negligent. 2. Chantelle has brought separate proceedings against the defendant on her own behalf. Obviously, Chantelle cannot succeed in those proceedings unless Mia-Angel succeeds in her proceedings. THE CREDIT OF CHANTELLE BRIDGES 1. As I have already noted, and as I have discussed in further detail below, there are a series of factual issues as to what took place at the two consultations with the defendant on 15 March 2013 and 28 March 2013. There are also factual issues as to what occurred on other occasions. Those issues give rise to a further issue, namely the credit of Chantelle. It is appropriate that this be addressed at the outset, as its determination has a direct effect on my findings of fact, and thus on the determination of the question of the defendant's liability. 2. It is firstly relevant to note that by the time Chantelle gave evidence before me in the hearing of these proceedings, a period of approximately 8 years had elapsed since the relevant events occurred. In Longman v The Queen [4] McHugh J made the following observations regarding human recollection of events occurring a long time ago: The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. 1. Whilst His Honour's comments were made in the context of considering evidence given by victims of alleged sexual assault, they are of universal application. In particular, in the context of the present case, his Honour's observations as to the effect of emotion and prejudice on the capacity of a person to remember events after a long period, assumes particular significance in the assessment of Chantelle's credit. 2. It is also relevant to note that much of the hearing of these proceedings took place during the period of the Covid-19 pandemic. As a consequence, the vast majority of Chantelle's evidence was given via Audio Visual Link. However, I should make it clear that the absence of Chantelle's physical presence in Court did not present any impediment whatsoever to my ability to assess her credit. This was, in part, due to what might be described as Chantelle's generally "overt" demeanour when giving evidence. 3. In his final submissions, counsel for Mia-Angel expressly conceded that aspects of Chantelle's presentation were (as he put it) "challenging". [5] However, he submitted that this did not establish that her evidence was untruthful. He emphasised [6] that it had not been put to Chantelle that she had deliberately lied, or had otherwise deliberately misled the Court, when giving evidence. Counsel's ultimate submission was that despite the extensive challenge to Chantelle's credit which was mounted in cross-examination, I should nevertheless conclude that her credit "survived", to the point where I should accept her account of what took place on the various occasions in question. [7] 4. For the reasons that follow, including the reasons I have expressed when addressing the facts, I am unable to accept that submission. 5. I accept that it was not put to Chantelle in cross-examination that she was deliberately telling untruths, or that she was deliberately misleading the Court. However, in assessing the credit of a witness, the concept of honesty is quite separate and distinct from the concept of reliability. A conclusion that a witness was unreliable in the evidence that he or she gave does not require a finding that he or she was deliberately untruthful, or had deliberately misled (or attempted to mislead) the Court. [8] Evidence of a witness may be unreliable for many reasons including, for example, by the passage of time which has elapsed since the relevant events occurred, and the effect of that passage of time on the memory of the witness in question. 6. I observed Chantelle carefully during the entirety of her evidence, which extended over some days. In assessing Chantelle, and in assessing the reliability of her evidence, I have made full allowance for the fact that the events surrounding Mia-Angel's ultimate diagnosis must have been extremely traumatic. I also accept that in such circumstances, Chantelle found it difficult to give evidence about those events. However, all of these matters have clearly produced emotion in Chantelle of the kind to which McHugh J referred in Longman. I am satisfied that this, along with other factors discussed below, have impacted upon Chantelle's capacity to recall events and give reliable evidence. Such matters have all contributed to my reaching a firm conclusion that Chantelle was a most unreliable witness. 7. To begin with, and at a level of generality, Chantelle's demeanour when giving evidence was, almost invariably, combative, aggressive, argumentative and agitated. There were some occasions on which she raised her voice, almost to the point of shouting her responses to questions. There were instances where she argued with, and talked over, both the cross-examiner and me. On other occasions she displayed a marked tendency to adopt the role of an advocate, rather than a witness. She often answered questions in terms which were largely, if not entirely, vague and/or non-responsive. 8. There are a plethora of instances in Chantelle's evidence where some or all of these factors were demonstrated. They include the following passage of cross-examination: [9] Q. Now, focusing on that point in time that's described in that sentence, and doing the best you can, can you tell his Honour what it is that Dr Hussain said to you? A. On here; what I'm reading here, do you mean? Q. Well, the sentence reads; "The defendant indicated that he thought the plaintiff might have gastro". What I want you to do, is doing the best you can, put that into the words that Dr Hussain used when he spoke to you. A. In the consultation the second defendant; yes. Date wise, I haven't got a date here in front of me in that paragraph at all. Q. Don't worry about that. This is the first consultation on 15 March 2013, and all I'm asking you to do is tell his Honour what you recall Dr Hussain said to you. A. He did not..(fault in audio visual link)..Mia. He-- Q. No, please, stop. What I'm asking you is what he said to you, not what he didn't do; what did he say to you about the issue of your daughter might be suffering from gastro, is the way it's expressed in the pleading. What are the words he said to you? A. I don't recall his exact words; I like to be very factual. I recall telling the doctor that my daughter wasn't well-- … Q. Is it the case, Ms Bridges, that you can't remember what Dr Hussain said about your daughter's presentation? A. I recall what occurred throughout the month of March, as I went in with her symptoms, and that this doctor did not make any investigations. He did not put her up on a chair like he said he did; he did not assess her. He did mention that she had hand foot and mouth disease at some point. I recall everything as a whole. There was a lot of dates that I was going in there, and I recall going back and forward to this doctor numerous times for myself, for my daughter, and immunisations, for Mia a number of times. It only says on Medicare that I seen him on just two or three dates for Mia; that is not the case. I went in there a number of times, every time I went in there to show him, he disregarded that anything was wrong with Mia. He did say at some point that she had hand, foot and mouth disease at the end of the month, day before, the last day that I seen him he said that I'm a hypochondriac, that I worry too much..(fault in audio visual link).. 1. It is noteworthy that in that passage of cross-examination, Chantelle appeared to take issue with the suggestion that she had only taken Mia-Angel to the defendant on two occasions, in circumstances where that is the very case that she has pleaded. 2. By way of further example, and in respect of the consultation with the defendant on 28 March 2013, Chantelle gave the following evidence: [10] Q. I want to put to you that Dr Hussain to your observation on 28 March 2013 made physical contact with your daughter, touch her. What do you say to that? A. I told him that she had a - the blotches on her face. He looked over at her and then he turned her back to her to the screen and did his typing that he does, and just kept typing and looking at the screen. He did not assess my daughter. Q. Please, I asked you a very discreet question about A. He did not assess her. 1. Chantelle's generally unimpressive demeanour was also evident from the following exchange in respect of that same consultation: [11] Q. Ms Bridges, did Dr Hussain give you any document on 28 March 2013, such as a medical certificate for your daughter? A. No. Q. On 28 March 2013, you also consulted Dr Hussain in relation to your pregnancy, didn't you? A. On the 28th, did you say? Q. Yes. A. I do not recall doing that on the 28th of March. It would've been some days prior; I would assume. Q. Now, you know, don't you, Ms Bridges, that Dr Hussain alleges that he had a telephone call with you after the consultation on 28 March 2013, correct? HIS HONOUR: Well, do you agree with that or not, rather than laugh Ms Bridges, could you answer the question. WITNESS: It's not funny; I'm not laughing. This is not a laugh. HIS HONOUR: Well you certainly appear to be. What's the answer to the question. WITNESS: Why; because it's a not - it's not a laugh; it's disgraceful. HIS HONOUR: Well, what's the answer to the question, please. WITNESS: There's no phone call. There's no phone call. There's no phone call. 1. Chantelle's adoption of the role of an advocate rather than a witness is evident from the following passage of cross-examination: [12] Q. And at the second of those consultations that are identified in this document, it is said that you asked Dr Hussain if Hand, Foot and Mouth was a contagious condition? A. Yes. Q. Did that happen? A. Did I ask him that? Q. Yes. A. Yes, I did ask him that because I was curious like with - like is that chicken pox or something, do you know what I mean, and he said, "Hand, foot and mouth disease" - I said, "Disease?" Like I never heard of that before. My daughter had not - she'd been a well child, not been sick other than this period of time. HIS HONOUR: You weren't asked that, madam. WITNESS: Your Honour, this is a very detailed claim. HIS HONOUR: No, madam, you were not-- WITNESS: This is a very detailed - your Honour, please, if I may. HIS HONOUR: Madam, please don't talk over me. We will get through this process a great deal quicker if you would simply listen to the question that is asked and answer it. WITNESS: But, your Honour, I want you to have the full facts HIS HONOUR: No, madam. Please, madam WITNESS: --to make an informed decision. HIS HONOUR: Madam, you have a barrister representing you. In fact you have two. They are there to look after your interests. I am here WITNESS: Okay, but the paperwork I've got in front of me now what - and you're witness to that HIS HONOUR: Madam WITNESS: --and it's not the, it's not the original witness statement that is in detail that explains what I'm trying to say which I was upset about, but they said they couldn't give to you because it was too detailed, so this got amended, as in reduced in detail and that's why I'm finding it difficult. If that can..(fault in audio visual link).. HIS HONOUR: Madam, the questions that you are being asked are very straightforward. You should not disclose to me anything that has been discussed between you and your lawyers. Listen to the questions and answer them please. Go on, Mr Hutchings. 1. Her attempted advocacy is also evident from the following passage: [13] Q. Doing the best you can could you tell his Honour what it is you allege was said by Dr Hussain about your returning to the practice to see either him, being Dr Hussain, or to see Dr Islam? A. So you're asking me on that last date, on the 28th, the day before I flew out on the 20th, the last day I seen him what my conversations were with him? Is that what - sorry, I'm just trying to clarify your question. Q. No, please pause. Please pause. A. Yep. Q. Try not to over think the question I'm asking you. A. Okay. Q. All I'm asking you is in relation to paragraph 18 A. Yeah. Q. --do you see that there is a sentence there that describes Dr Hussain communicating something to you? A. Yes. Q. Do you see that? A. Yeah, I do. Q. What I'm asking you is what do you allege Dr Hussain said to you about that topic? A. Yes, I can. I asked the doctor, because I had been seeing him for some time, if - again this is - I said it previously too but, "Could I please have blood tests or some - like there's something not right. The symptoms are progressing as other concerns keep..(fault in audio visual link)..happen. Q. Could you please HIS HONOUR: No, madam, no, you weren't asked that. The question is what did Dr Hussain say to you about the matters that are pleaded in paragraph 18? WITNESS: Okay. So at the end of all of that conversation he stood up - I asked him for, like I said, for some tests. He stood up very calmly, I assumed he was going to HIS HONOUR: No, please don't assume. Please tell us what he said because that is the question. WITNESS: He got up, he walked, he walked to the door. He walked past myself. He was here, I was sitting in this seat, my daughter Mia was sitting on the seat next to me, my infant child Anastasia was in the pram. He got up, he walked across me, he walked across Mia, he slightly moved my daughter's pram - Anastasia's pram out of the way where the door was. Open the door, he reached his hands out and he said, "Could you please leave?" He said that I was a hypochondriac and he said I worry too much. He had been seeing me too many times throughout this period, as I had mentioned, which you won't let me discuss about Mia, okay, and he told me to leave and he said that if I come back again that he would tell reception that he would not see me. Now, it says here that this HIS HONOUR: No, madam, don't worry about WITNESS: No, I'm following up what you want on 18. This is my time to answer, okay, and he said to me HIS HONOUR: Madam, don't argue with me please. WITNESS: I'm not arguing with you, your Honour. I am explaining to you. I'm answering what you want me to answer. It says here, which is an incorrect part, that she would not be allowed to see either the first or second defendant. He did not say anything about Dr - what's the first doctor - Islam. He just said himself, so I don't know why that is said there, but that's incorrect that part. He did not mention Dr Islam whatsoever. He said for himself. He spoke for himself. I just wanted to let it be known as you would like me to answer on that point, on point 18, that that there is an incorrect part. HUTCHINGS Q. All right. Pause if you will. A. Thank you. Q. Your evidence is that what Dr Hussain said was that he would not see your daughter again? A. Yes. Q. But he didn't say anything in relation to Dr Islam. Is that your evidence? A. Yes, that's right and I left in tears. Q. Pause if you will. A. She was sick. He didn't do his job. No one would hear me. This is unfair. It's not right. It's wrong. 1. As I have discussed further below, one issue in these proceedings arises from a telephone conversation which is said by the defendant to have taken place with Chantelle at some time after the consultation of 28 March 2013. In respect of that conversation, Chantelle was asked: [14] Q. Ms Bridges, I'm asking you a question that is much more particular than your answer. You understand that Dr Hussain alleges that he spoke with you on the telephone after 28 March 2013, correct? A. He alleges, yes. Q. How do you understand that. When did you first become aware that that's what Dr Hussain says? A. What do you mean that's when do I first become aware. I don't know when I first became aware of that. At some point over these years. At some point when, like in the Courts. Like in the court cases, like the court case. Q. Isn't it the case, Ms Bridges, that you became aware of that for the first time when you read Dr Hussain's evidentiary statement? A. No. I'd just like you to check your records. That I was - so that was supposedly an assumption made to the courts before your Honour at some point during this case, and that he recollected the date to your Honour of a phone call that occurred on the 29th, allegedly, on 29 April 2013, and that I was concerned of my daughter, and that he said that I should rush her to emergency to a hospital, and that I responded with, that would be some hours wait. And then that was withdrawn from the Court on that date because I told during the break that the defendant's side that counsel that was there, the lady with the blonde hair, I told her straight that I would prove it via video player phone calls from my telecommunications company that that did not occur, and that is fact. 1. There were innumerable other instances [15] in which Chantelle approached her evidence in the same unsatisfactory manner as that which is demonstrated in the extracts of the transcript which I have set out above. All of those instances have contributed to my conclusion that Chantelle was an unreliable witness. I should also make it clear that in reaching that conclusion, I have taken into account various contemporaneous records which are in evidence. I have referred to some of those records when addressing the facts below. In each instance, they fortify the conclusion I have reached. 2. Further, and leaving aside Chantelle's actual evidence (and her demeanour when giving it), there is an additional matter which further supports my conclusion regarding her credit, and which arose in this way. 3. The defendant commenced giving oral evidence in the proceedings on 5 May 2021. His evidence continued into the following day, 6 May 2021. In the course of the proceedings on that day, counsel for the defendant made an application that the evidence be adjourned until 10 May so that the defendant could observe aspects of the religious festival of Ramadan. That application was not opposed and was granted, although it was agreed that the proceedings would continue before me on 7 May for the purposes of dealing with other matters. 4. When the proceedings came before me on 7 May counsel for the defendant said the following: [16] There's one other issue while I'm on my feet I should raise and that is that yesterday afternoon after your Honour adjourned court, Ms Bridges said something to Dr Hussain. I haven't asked him what it was. He volunteered to me that she said something to him. One can apprehend from the manner in which he expressed it that it was in the nature of profanity and I escorted him from the Court after that. I haven't discussed his evidence of course and I didn't discuss the detail, but I think it would be appropriate if on Monday morning I asked him a question so that he could give some evidence about that so it can be recorded. 1. On 13 May, at the conclusion of his cross-examination, the defendant gave the following further evidence: [17] Q. Thursday 6 May 2021 you attended this Court to give evidence, do you recall that? A. Yes. Q. At the end of your day of giving evidence there was some discussion in this Court about your availability for Friday 7 May, do you recall that? A. Yes. Q. In connection with that, I had a discussion with you about the significance of Friday 7 May in respect of your Islamic faith? A. That's right. Q. After you left the witness box could you tell his Honour what you did? A. I went to the conference from up there. HIS HONOUR Q. Indicating out into the foyer on level 10? A. In the foyer, yeah. And I was standing there inside the room when Mrs Chantelle came and yeah "You fucking" - sorry to say that. Q. No use the words that were used to the best of your recollection? A. Ramadan is god and then she tried to. Q. I'm sorry, just repeat it, she said? A. "Fucking Ramadan that you have", so she tried to enter the room but he - someone assisting from the other side immediately closed the door. And then later on-- Q. Yes, go on? A. Then later on I was still there in my room, she went back and then again while passing this time, go, go and eat. Q. Did you say "go and eat"? A. Go and eat. HUTCHINGS Q. Was that all? A. That's all. HUTCHINGS: That's the evidence. Q. I gather you had the impression that she was being aggressive, is that fair to say? A. Yes. Q. Has that affected in any way your ability to give evidence in Court? A. No. 1. It is clear that whilst the defendant was still being cross-examined, Chantelle approached him in the precincts of the Court. The defendant's evidence as to what then occurred is entirely unchallenged. In approaching the defendant, Chantelle acted not only offensively, but aggressively. That aggression was verbal, in the sense of her remonstrating with the defendant regarding his religious beliefs. It was also physical, in the sense of attempting to enter the room in which the defendant was waiting. It is apparent that such attempt may well have succeeded had she not been restrained. 2. In my view, Chantelle's conduct on this occasion was reflective of a person who is clearly emotionally affected by the events which are the subject of these proceedings, and who harbours significant prejudice and ill-feeling towards the defendant. Her conduct towards the defendant constituted a further (but different) manifestation of the aggressive and combative demeanour that she consistently displayed when giving evidence. The impropriety of such conduct would be self-evident to any right-thinking member of the community. It reflects adversely on Chantelle's credit. 3. For all of these reasons, and also having regard to other specific aspects of her evidence which are discussed further below, I regard Chantelle as a most unreliable witness. In the absence of independent corroboration, I do not accept her evidence as to any fact in issue. THE MEDICAL EVIDENCE IN MIA-ANGEL'S CASE 1. Before coming to address the facts, there is an additional discrete matter which must be addressed. 2. At an early stage of the hearing, I dealt with various objections taken by counsel for the defendant to passages of medical reports which were sought to be relied upon in Mia-Angel's case. Passages of such reports were excluded. 3. On the resumption of the hearing on 25 May 2020 (which was a Monday) counsel for Mia-Angel informed me that during the course of the preceding weekend, his instructing solicitor had obtained additional reports from those experts whose evidence had been excluded. This resulted in an application being brought on behalf of Mia-Angel for leave to rely on the additional reports. The transcript will reflect that when that application was heard there were lengthy submissions made on behalf of both parties. 4. The application which was made engaged the provisions of r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) is in the following terms: Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party— (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties— (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied— (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 1. Clearly, the additional reports which were sought to be tendered were obtained over a weekend in the course of the hearing. They had not been served in accordance with r 31.2(1). That engaged the requirement for leave in sub-rule (4). The reports were not "updates", and accordingly sub-rule (4)(b) had no application. That left the onus on counsel for Mia-Angel to establish that there were exceptional circumstances which warranted the grant of leave. 2. Such exceptional circumstances were not made out. It was evident that those acting for Mia-Angel determined, upon parts of the original reports being excluded, that they would obtain additional reports in an attempt to adduce that excluded evidence. Quite apart from any other consideration, such a course had the effect of an "ambush", with those acting for the defendant being faced with having to consider the contents of additional reports after the hearing had commenced, in circumstances where they had not previously seen them and thus had not had the opportunity to consider their contents. A grant of leave to allow the additional reports to be relied upon would also have been contrary to the considerations set out in ss 56 – 58 of the Civil Procedure Act 2005 (NSW). THE FACTS Mia-Angel's consultation with Dr Anwarul Islam on 11 February 2013 1. Mia-Angel was born on 21 January 2011. She was therefore a little over 2 years of age in February 2013. 2. In her evidentiary statement, [18] Chantelle said that on the morning of 11 February 2013, she had woken up and noticed that Mia-Angel appeared pale and lethargic, swollen in her face and colourless in her cheeks. She said she had a sore abdomen which looked slightly swollen, and which felt firm to the touch. She said that Mia-Angel gestured to her stomach during the morning and said "boo boo", which Chantelle understood to mean that Mia-Angel was experiencing pain and discomfort in the stomach/abdomen area. These circumstances resulted in Chantelle taking Mia-Angel to Primary Health Care Medical and Dental Centre at Bankstown (the Medical Centre). The first available medical practitioner on that day was Dr Anwarul Islam. It is noted that Dr Islam was initially named as a defendant, but the proceedings against him were resolved between the parties. 3. Chantelle's evidence [19] was that during the consultation with Dr Islam she said words to the effect: My daughter is not well, I just wanted to get it checked out. She looks a bit pale and is not looking like herself. I don't know what's wrong; it doesn't seem like a bug or the flu, but something is not right. She is normally brighter, but now she is flat and lethargic and not herself. 1. This history omitted any reference to the vast majority of the symptoms to which Chantelle had referred in that part of her evidentiary statement to which I previously referred. 2. Chantelle agreed that Dr Islam examined Mia-Angel at the time of the consultation, [20] the clinical note of which reads as follows: [21] severe aphthous ulcers afebrile P – Kenalog locally, multivitamin drops/panadol R/V in 3/7 Rx 1 – Penta-vite Liquid Multi-vitamins Drops 20mL Rx 1 – Kenalog in Orabase (Paste) 0.1% 5g 1. Notwithstanding the contents of that note, Chantelle had no recollection of being: 1. advised that Mia-Angel had ulcers; 2. prescribed a paste to treat Mia-Angel's condition; and 3. advised of a proposed review in 3 days. [22] 1. According to Chantelle, Dr Islam had said to her words to the effect: [23] She is fine, you can come back if there is a problem. 1. Two observations may be made at this point. 2. Firstly, those words attributed by Chantelle to Dr Islam are not entirely consistent with the reference in the clinical note to "R/V in 3/7", which I infer means "review in 3 days". I am not satisfied that such words (i.e. those attributed to Dr Islam by Chantelle) were said by Dr Islam. 3. Secondly, Chantelle's failure to remember a number of fundamental details of this consultation is reflective of the fact that, credit issues aside, she is a poor historian, whose memory of the relevant events has been adversely affected by the passage of time which has elapsed since they occurred. Those circumstances have further contributed to the erosion of Chantelle's reliability as a witness. 4. It is evident from the contents of the clinical note that Dr Islam considered it appropriate that Mia-Angel return for further review in 3 days. I am satisfied that this was communicated by Dr Islam to Chantelle at the time. 5. There is no evidence that Chantelle returned with Mia-Angel for any further review in 3 days, and I am satisfied that she did not. I infer from a combination of those matters that Mia-Angel's symptoms settled following the consultation with Dr Islam, to the point where they were of no concern to Chantelle. Mia-Angel's first consultation with the defendant on 15 March 2015 1. In her evidentiary statement, Chantelle said the following in relation to the period subsequent to the consultation with Dr Islam: [24] [30] Following this consultation, Mia-Angel appeared to recover slightly. She seemed fine and was eating and drinking normally. She did, however, begin do it more than usual over the following days. [31] In the days immediately preceding 15 March 2013, I again noticed that Mia-Angel was not herself and something was not right. [32] Mia-Angel's colour had drained from her face and her hair was dry and had lost colour. She was lethargic and was not fully participating in her regular daily routine. She had gained weight and seemed more puffy in her face. [33] On the morning of 15 March 2013, on around 06:00 hours, Mia-Angel woke me up. She projectile vomited a large amount in my bed and there was vomit sprayed on me as well. [34] I immediately took Mia-Angel to the bathroom to shower. [35] Mia-Angel wanted to eat once I had cleaned her in the shower. I do not recall what I gave her for breakfast, but I do recall that she had breakfast. [36] Later that morning, I attended on the medical centre with Mia-Angel. [37] I requested to see Dr Islam as I had already seen him before and thought he would be the most aware of Mia-Angel's condition and her treatment needs. [38] I was informed by the receptionist that Dr Islam was not there, but that Dr Hussain was the next available general practitioner and that I could see him. [39] I agreed to see Dr Hussain. 1. Chantelle's attendance at the Medical Centre on 15 March was some 32 days after the consultation with Dr Islam, in circumstances where, as I have found, Dr Islam had recommended a review of Mia-Angel in 3 days. This fortifies my conclusion that any symptoms that Mia-Angel had exhibited at the time of the consultation with Dr Islam had resolved. Although Chantelle's evidence was that Mia-Angel's symptoms "came and went", [25] she accepted, as a general proposition, if there were no apparent signs of illness she would not take Mia-Angel to see a doctor. [26] The fact is that following the consultation with Dr Islam she did not take Mia-Angel to see a doctor for over a month. That further supports my conclusion that Mia-Angel's symptoms had resolved following the consultation with Dr Islam. 2. Chantelle said in her oral evidence that when she attended the Medical Centre on 15 March she did so with the intention of consulting Dr Islam because it "seemed like he was … professional doctor". [27] However, Dr Islam was not available, as a consequence of which Chantelle saw the defendant. 3. Notwithstanding Chantelle's evidence regarding Mia-Angel's condition in the days leading up to, and on the morning of, 15 March, her evidence as to the primary reason for her attendance with Mia-Angel upon the defendant on that day was not entirely consistent. Chantelle's initial evidence suggested that she had attended for the primary purpose of confirming her pregnancy: [28] Q. On the occasion you went to the medical centre to confirm your pregnancy you took Mia Angel with you. Correct? A. My children are always with me, yes. Q. You asked Dr Hussain to confirm your pregnancy? A. Yes. Q. You also asked him to see Mia Angel because she had been unwell. Correct? A. Yeah, that's correct. She vomited. 1. However, she later said: [29] Q. All right. Now, you saw Dr Hussain on 15 March in relation to your pregnancy, and you also saw him in relation to Mia-Angel. Do you recall whether you dealt with the issues of pregnancy first, or with Mia-Angel's illness first. What was the sequence of events? A. Mia-Angel definitely. Undoubtedly. I don't even know that. Does it state that it was the 15th that I - I don't think it was the 15th; I think it would've been a bit later that I found out I was pregnant. I mean, what does Medicare say; I can't say that. I don't know, but what does the date say there, and whatever notes. But no I don't think it was the 15th at all that I found out I was pregnant, that doesn't make any sense to me. That would've been-- 1. The evidence continued: [30] Q. Just pause if you will. Just so I understand; so we all understand your evidence. Do you now say that you didn't consult Dr Hussain on 15 March 2013 in relation to your new pregnancy? A. What I say is, I don't recall the date that I did my home pregnancy test and seeing him for confirmation of that. 1. Chantelle then said: [31] … I went in because of [Mia-Angel's] projectile vomiting, and her being unwell that morning with the vomit everywhere in the bed, and I didn't even know I was pregnant at that time. 1. These variations in Chantelle's evidence serve as a further indication of her general unreliability, and the fact that she is a poor historian. Moreover, her suggestion that "it would've been a bit later that [she] found out she was pregnant" is clearly wrong in light of the defendant's clinical note which includes: [32] Diagnosis of pregnancy 1. The defendant's clinical note of the consultation insofar as it related to Mia-Angel records a date and time of Friday 15 March 2013 at 8:48:48pm. [33] When it was put to Chantelle that she had attended upon the defendant on the evening of 15 March 2013 she responded: [34] No. It was daytime.…… It was daytime. I did not walk home in the dark. 1. I am satisfied that Chantelle's evidence in that respect was also clearly wrong. It is completely at odds with the objective and contemporaneous evidence in the clinical note. 2. Chantelle gave the following account of the consultation with the defendant insofar as it related to Mia-Angel: [35] [40] During the consultation with Dr Hussain, I said words to the effect of: Mia is pale and tired. She had a big vomit this morning. I don't think this is 'gastro' because she has not had any toileting problems. Her stomach is chubbier and she has been eating a lot and drinking a lot. I'm not sure what it is but that's why I'm here. Something was not right. [41] I recall that Dr Hussain was using his computer at the time I was speaking. He did not perform any examinations of Mia-Angel and did not speak much during the consultation. [42] He said words to the effect of: "Maybe she's picked up something playing in the backyard with a dog." I denied this. [43] Dr Hussain then said words to the effect of: "Maybe she picked something up from day-care?" I denied this. Mia-Angel was not attending any day-care at the time. [44] Dr Hussain then said words to the effect of: "Maybe from her family?" I denied this. [45] No treatment was recommended, and nothing was prescribed. I requested that blood tests be performed, but my request was denied by Dr Hussain. 1. On her own account, Chantelle did not give the defendant a history of any of the matters from which she asserted (in her evidentiary statement) that Mia-Angel was suffering. [36] She made no reference to colour draining from Mia-Angel's face, her hair being dry and colourless, her inability to participate in her daily routine, her weight gain, and the fact that she had become "puffier" in the face. Importantly, there is no evidence to suggest Mia-Angel was suffering from ulcers or a rash at the time of the first consultation with the defendant, nor is there evidence that any history was provided to the defendant that Mia-Angel was suffering from abdominal swelling, in circumstances where that fact is specifically pleaded. 2. The defendant set out his recollection of the consultation in his evidentiary statement as follows: [37] [14] The plaintiff's mother was in the early stages of the pregnancy and consulted also me in relation to this. I recorded the details in the mother's clinical notes. [15] I have some recollection of the plaintiff who appeared to be walking normally and climbed up to the examination stool. She was wearing a pink shirt. The plaintiff had a solid build. [16] The mother raised concerns about her daughter waking up and vomiting in the morning. I was informed that she had done this for the last 5 days. After vomiting in the morning, the mother informed me her daughter appeared normal. Her appetite appeared normal and she was opening her bowels regularly. [17] I asked the mother about whether there had been any fever, nausea, diarrhoea, abdominal pain, irritability or any other symptom. I was told that there was not. [18] I checked the plaintiff's temperature by way of an electronic thermometer which I placed in her ear. Her temperature was 37.2°C. This was within the normal range. I checked her mouth and ear with an oralscope and did not record any abnormalities. I palpated the abdomen which was normal. [19] I examined the plaintiff's ears and listened to the chest and heart. [20] On palpation of the abdomen I found that the child did not have an enlarged spleen, liver or kidney and could not find any other masses. I checked her tongue and lightly pinched her skin to assess whether or not she was dehydrated. I did not ask any questions about who urine output. [21] Early morning vomiting can raise concerns in the child about a brain tumour. However, I excluded this as there was no clinical history or finding to suspect it. Had I had any suspicions of this nature I would have referred her to a paediatric specialist. [22] I informed the plaintiff's mother that I had found nothing wrong clinically with the child. The plaintiff did not appear unwell otherwise I would have noted this. [23] I advised the mother that the child could be suffering from gastroenteritis given that she had been vomiting for 5 days. I told the mother to keep the child's fluids up in view of her vomiting, but she was not at the time dehydrated. I recommended a bland diet. [24] I also gave the mother an opportunity for the child have a blood test. I informed her that this is something that could distress a child and sometimes a "wait and see" approach may be preferable. I asked her to bring her back to the rooms into 2-3 days if the condition did not resolve, and then we would revisit without further testing should be performed. 1. The clinical note of the consultation is in the following terms: [38] History: wakes up in the morning and vomiting after complaining of vomiting 5 days in the morning. Thro out the day she is alright opening bowels regularly Examination o/e t 37.2 abd soft no dehydration. 1. The history recorded in the clinical note similarly omitted any reference to those conditions from which Chantelle maintained in her evidentiary statement that Mia-Angel was suffering in the period leading up to the consultation. 2. As I have noted, Chantelle also asserted in her evidentiary statement that the defendant variously queried whether Mia-Angel had "picked up something" as a result of playing in the backyard, being at day care, or being in proximity to members of her family. That is entirely contrary to her oral evidence that the defendant asked no questions in the course of the consultation at all. [39] That serves as a further specific example of her unreliability as a witness. The defendant was adamant when cross-examined that he asked questions of Chantelle about Mia-Angel's condition. [40] I accept that to have been the case, and I am satisfied that the history provided was in the terms given by the defendant in his evidence. 3. Chantelle also asserted that the defendant did not examine Mia-Angel at the time of the consultation. I reject that evidence. It is entirely at odds with the notation "o/e" in the clinical note which is obviously an abbreviation for "on examination". That is objective evidence consistent with an examination having taken place which, in turn, is consistent with the defendant's evidence (which I accept) that he: [41] 1. took Mia-Angel's temperature; 2. checked her mouth and ear with an otoscope; 3. utilised a stethoscope for the purposes of examination; and 4. pinched Mia-Angel's skin to check for dehydration. 1. In all of these circumstances, I am satisfied that the defendant's account of the consultation as set out in his evidence, and clinical note, are accurate and are to be preferred to the evidence of Chantelle. In particular, I accept that Chantelle specifically told the defendant that Mia-Angel was not suffering from fever, diarrhoea, abdominal pain or irritability. Chantelle's consultation with the defendant on 18 March 2013 1. On 18 March 2013 Chantelle consulted the defendant in respect of a lump under her chin. [42] The clinical note does not disclose Chantelle saying anything to the defendant on that occasion about any adverse symptoms being experienced by Mia-Angel at the time. I am satisfied that she did not do so and that Mia-Angel was not exhibiting any such symptoms. 2. In her evidentiary statement [43] Chantelle referred to the fact that Mia-Angel's condition was "fluctuating" following the consultation with the defendant on 15 March 2015, and asserted (inter alia) that in the days following that consultation Mia-Angel had indicated to her that she had a headache. I do not accept that evidence. It was only 3 days after Mia-Angel's first consultation with the defendant that Chantelle consulted the defendant in respect of the lump under her chin. For the reasons previously expressed, I am satisfied that the defendant had told Chantelle at the time of the consultation on 15 March that if Mia-Angel's condition did not resolve, she should bring her back in 2-3 days. Clearly, on the evidence, Chantelle did not do so. I am satisfied that this is explained by the fact that none of Mia-Angel's reported symptoms continued over that 2-3 day period. Indeed the general effect of the defendant's evidence, which I accept, is that Chantelle was "happy" when he saw her on 18 March. [44] That observation is inconsistent with Chantelle being concerned about Mia-Angel experiencing anything in the way of ongoing symptoms. Chantelle's consultation with the defendant on 19 March 2013 1. Chantelle consulted the defendant again the following day, 19 March 2013. The clinical note of that consultation [45] makes it clear that it related solely to Chantelle's pregnancy. The evidence of the defendant, which I accept, is that Chantelle attended that consultation alone. [46] In those circumstances, and for the reasons previously expressed in the context of addressing Chantelle's consultation with the defendant the day before, I am satisfied that Mia-Angel was not exhibiting any symptoms which caused Chantelle any concern at that time. Chantelle's consultation with the defendant on 25 March 2013 1. Chantelle consulted the defendant again on 25 March 2013. Given the contents of the clinical note of that consultation, [47] I am satisfied that it related to Chantelle's pregnancy, and was entirely unrelated to Mia-Angel. I accept the evidence of the defendant that Mia-Angel did not attend that consultation. [48] In those circumstances I am satisfied that Mia-Angel was not exhibiting any symptoms which caused Chantelle any concern at that time. It is noteworthy that this was 10 days after the first consultation with the defendant on 15 March, and the third occasion within that 10 day period in which Chantelle saw defendant and reported nothing about Mia-Angel suffering any ongoing adverse symptoms. Mia-Angel's consultation with the defendant on 28 March 2013 1. Chantelle attended upon the defendant at the Medical Centre on 28 March 2013. One reason for doing so was her pregnancy. [49] Another reason was the 4 month vaccination which was due to be given to her eldest daughter. [50] A third reason was Mia-Angel's condition. [51] By this time, 13 days had elapsed since Mia-Angel's first consultation with the defendant. 2. In her evidentiary statement, Chantelle said the following: [52] [50] On the morning of 28 March 2013, I noticed that Mia-Angel's face, arms and legs had some red splotches on them. I was extremely concerned for Mia-Angel and additionally for the rest of my family. I was flying to Queensland on the following day with Mia-Angel to see my family, and was concerned that Mia-Angel's skin condition may be contagious. [51] I attended on the Medical Centre with Mia-Angel later that morning and requested to see [the defendant], as I had already seen him previously in relation to Mia-Angel. [52] … I also said words to the effect of: "Is this contagious? I am flying up to see my family tomorrow". [53] [The defendant] said words to the effect of: "No, no. Just have an antihistamine before she gets on the plane. [54] I ask [the defendant] if I could have a script. [The defendant] responded with words to the effect of: "No, you can get this from the chemist". [55] [The defendant] also said words the effect of: "This is hand, foot and mouth disease. Maybe she picked it up from other kids", in relation to the red splotches on Mia-Angel's face, arms and legs. [The defendant] did not remove Mia-Angel's shoes. [56] I again requested that Mia-Angel have blood tests performed. [57] [The defendant] said words to the effect of: "No, she does not need blood tests. Children don't get sick". 1. The clinical note of the consultation reads as follows: [53] History: papular vesicular rash on the mouth and hand [sic] and foot. Examination: o/e t 37.9 Plan: explained it is HFM disease. 1. Having referred to that clinical note, the defendant said the following in his evidentiary statement: [54] [27] The mother did not say that her child had been vomiting, or had diarrhoea. There was no history given of abdominal pain. I recall that the plaintiff had a normal gait and appeared otherwise well. She was able to walk and had a normal gait. [28] I performed the same examinations as before. I checked the child's temperature, examined her ears and mouth, listened to her chest and heart and palpated her abdomen which was soft. I did not locate any enlargement of the spleen, liver or kidney. [29] I did observe that the plaintiff had a papular vesicular rash on her hands and feet. She had an elevated temperature which I recorded 37.9°C. I understood from my discussion with the plaintiff's mother that the plaintiff did attend day care or around one in words or two days a week. [30] I diagnosed plaintiff as suffering from hand, foot and mouth disease, which is a common illness for children. I excluded more sinister problems by my analysis of the distribution of the rash. It is my usual practice in cases of hand, foot and mouth disease to take out the relevant textbook (Murtagh) and read some of the pages in the chapter to explain the disease to the parent. [31] I would have explained to the mother that the disease usually has a course whereby it incubates for 2 to 3 days, following which a rash appears. The rest can form small red spots which progress to blisters and then it can become tender ulcers. Blisters may also appear on fingers and palms in the hand, and the toes and souls of the feet. They may also appear on the genitals. Most patients recover in around 5 days, and just require reassurance. [32] As the child had a mild fever at 37.9°C, I would have informed the mother to keep the child's fluids up and if the fever goes above 38°C to administer Panadol. [33] I also examined the mother on this day in relation to her pregnancy. I entered my findings in the mother's records. [34] I recall that when the mother was leaving, she asked if the child be [sic] well enough to travel to Queensland. I informed her that hand, foot and mouth disease should only last round 5 days. However, any viral illness can have complications. If the child doesn't get better after 5 days she should be brought back to the surgery. 1. Aspects of Chantelle's account of what occurred at this consultation do not withstand scrutiny. 2. To begin with, Chantelle's evidence in cross-examination was that the defendant did not take Mia-Angel's temperature. [55] The clinical note specifically records Mia-Angel's temperature as 37.9. That notation is consistent only with Mia-Angel's temperature having been taken. It is also consistent with the defendant's evidence, which I accept. [56] 3. Chantelle also asserted that the defendant had no physical contact with Mia-Angel at the time of the consultation, to the point that he did not touch her at all. [57] I do not accept that evidence. It is entirely at odds with the contents of the clinical note. It also defies common sense that the defendant did not conduct a physical examination of Mia-Angel. 4. The history recorded in the clinical note is that of a rash on the mouth and hand and foot and I am satisfied that this was the history given and that it accorded with Mia-Angel's presentation. Such recorded presentation is generally consistent with Chantelle's evidence of what she observed on Mia-Angel's face on the morning of 28 March 2013. Importantly, and notwithstanding what is pleaded in the third further amended statement of claim, there is no evidence that Chantelle provided a history to the defendant on this occasion of Mia-Angel being swollen in her arms, face, legs and stomach, nor is any evidence that Mia-Angel presented in that way at the time of the consultation. Similarly, there is no evidence that Chantelle gave a history of persisting symptoms of vomiting and lethargy. I am satisfied that she did not do so. I am also satisfied that the defendant formed the view, on the basis of Mia-Angel's presentation, that she was suffering from hand, foot and mouth disease, that a blood test would not assist in any treatment, and that he advised Chantelle accordingly. [58] 5. Chantelle's evidence of the circumstances in which this consultation ended was set out in her evidentiary statement as follows: [59] [59] [The defendant] stood up from his seat. He moved my pram out of the way and walked toward the door. He opened the door, held his hand out and said: "Please leave". [60] I said words the effect of: Excuse me? I just want blood tests for my daughter." [61] [The defendant] said words to the effect of: "No, you come here too much. You are a hypochondriac. Don't come back here, because I will tell the staff that I refused to see you again. [62] I left the Medical Centre with Mia-Angel. I was in tears. 1. In cross-examination Chantelle expanded on what allegedly took place: [60] He got up, he walked, he walked to the door. He walked past myself. He was here, I was sitting in this seat, my daughter Mia was sitting on the seat next to me, my infant child Anastasia was in the pram. He got up, he walked across me, he walked across Mia, he slightly moved my daughter's pram - Anastasia's pram out of the way where the door was. Open the door, he reached his hands out and he said, "Could you please leave?" He said that I was a hypochondriac and he said I worry too much. He had been seeing me too many times throughout this period, as I had mentioned, which you won't let me discuss about Mia, okay, and he told me to leave and he said that if I come back again that he would tell reception that he would not see me. Now, it says here that this 1. In cross-examination the defendant said the following in relation to this issue: [61] Q. You recall at that time that there was an altercation between yourself and Chantelle at the last consultation? A. No I deny that. Q. You recall at that time that you had essentially asked her to leave and called her a hypochondriac? A. No I never did that. Q. You recall that you had told her that there was nothing to be concerned about, about her child's health? A. No I never, I never said that. 1. Bearing in mind the findings I have already expressed regarding Chantelle's credit, I do not accept her evidence regarding the circumstances in which the consultation on 28 March 2013 ended. In the course of observing the defendant give evidence, I formed the view that he was a careful and truthful witness. The suggestions that he labelled Chantelle a hypochondriac, and that he threatened that Mia-Angel would not be treated if she returned to the Medical Centre are, in my view, utterly fanciful. I do not accept that any of the statements attributed to the defendant by Chantelle in this respect were said, nor do I accept that the consultation ended in the way Chantelle asserted that it did. The telephone contact between Chantelle and the defendant 1. In the original statement of claim which commenced the current proceedings, the following was pleaded: [62] On or about 28 April 2013, [Chantelle] contacted the medical centre and informed either [Dr Islam] or [the defendant] that they were going to fly to Brisbane on 29 April 2013. [Chantelle] was advised by either [Dr Islam] or [the defendant] that [Mia-Angel] could fly. 1. Notwithstanding that pleading, Chantelle categorically denied in her evidence that she had ever had any telephone conversation with the defendant: [63] Q. And your position is, Ms Bridges, is that you have never ever had a telephone call with Dr Hussain, is that correct? A. Yes. Q. And you understand that Dr Hussain says that not only did you ring his practice, you sought his advice in relation to travelling. You understand that, don't you? A. That's incorrect. Q. I think we might be at cross-purposes, Ms Bridges. You understand that Dr Hussain said that not only did you telephone his practice and speak to him, but that you sought his advice in relation to travel. A. No, that's incorrect. 1. In his evidentiary statement, the defendant said the following in relation to this issue: [64] [35] Sometime after the consultation on 28 March 2013, I was seeing another patient, I received a telephone call from the plaintiff's mother. I cannot recollect the date and I have not made an independent record of this telephone discussion in the notes. I had no practice, at the time, of recording telephone discussions. [36] I was informed by the mother that the child was unwell and had been unsteady on her feet. [37] I advised the mother that she should take the child to the emergency department at the hospital as soon as possible. [38] The mother expressed a concern about the waiting time at hospital. I do have a memory that she mentioned the possibility of a 3 hour wait. I was informed that she was planning to fly to Queensland later that day. [39] I then said she could bring the child back to our surgery if she was concerned about waiting times. It was a walk in practice, and she could see neither myself or another doctor. The mother indicated she did not have time to bring her daughter in. [40] The mother then asked if her daughter would be able to fly to Queensland. [41] As I used to practice in a rural area and from experience, I asked the plaintiff's mother: Do you have family in Queensland;? I was advised that she did How far is the family from the airport – I was told within 100km. Would the child be able see a doctor there and I was told she could. [42] My recollection of this discussion was that it was not a "heated" discussion. [43] I told the mother, it is better to be safe rather than sorry. I hadn't seen the patient that day, so it was her decision as to whether or not she should travel. I had advised to take the child the hospital or, in the alternative, to bring her to see me or another doctor at the Primary Health Centre or to a doctor when she flew to Queensland. 1. The defendant also gave oral evidence in relation to this issue: [65] Q. In your statement, you tell the Court that at some time after the consultation on 28 March 2013, the mother called your practice? A. That's right. Q. Now, is that a recollection that you independently have sitting in the witness box? Do you recall that telephone conversation? A. Yes, very well. Q. Do you know that the family flew up to Queensland on 29 March? A. No. Q. So I want you to assume that the family flew to Queensland at about midday on 29 March? A. I did receive a call. I was with a patient at that particular time and the call was put through straight. I didn't know who was at the other end of the call and I - as I said, the person said that, you know, the child was unsteady on their feet and to that I immediately replied that well she - the child should be taken to the hospital immediately. And then I was told that it is a long waiting time for the hospital there. So I told them to bring the child to the clinic instead and then I was told that, you know, "We'll be flying to Brisbane." So that was a time I - now, this - to answer this question I would have to go back to a few more in the past. Because when I saw her as a patient alone before, she's all Q. Who's her? A. The mother, because of pregnancy. She was talking about this Brisbane trip in - while I was consulting her and how happy she was about that and how much she was looking for. So that was a consistent, a consistent thing. So when she mentioned that she's flying to Brisbane, I - it clicked in my mind, I am speaking to her. 1. He was also asked: [66] Q. Paragraph 35 of your statement. It says "Some time after the consultation on 28 March 2013" and that's your evidence about when that conversation occurred. That is, some time after the consultation on 28 March, correct? A. That's right. … Q. It reads that, "I was informed by the mother that the child was unwell and had been unsteady on her feet." A. That's right. Q. Do you remember, apart from what's contained in that statement, any other details of that conversation? Any other symptoms that she might have said to you? A. No. This is the one that stands out. Q. The symptom that stands out is-- A. Is-- Q. --the fact that she was unsteady on her feet? A. Unsteady on her feet and to that I immediately responded that she should take the child to the hospital because it's a red flag. Q. A red flag for what? A. For a sick child. 1. He was then asked: [67] Q. Is it possible that you have reconstructed that evidence after reading the discharge summary and the information in the admission on that document? A. I have not reconstructed anything. I just used my recollection of what happened. Q. Is it your evidence you don't know who rang? A. In the beginning, no. Q. I see. By the end of the conversation you knew it was Chantelle Bridges? A. It, it was, yes. Q. Following what was said, you were concerned enough about the patient to tell the mother to take her straight to hospital; is that right? A. That's right, yeah. I told the mother, whoever she was, to be taken to the hospital in the first, this thing, then at the, and then the conversation continued as it happened and when I came to know that she was Bridges I again said the same thing, "It's better to be safe than sorry," and I was going to place the receiver down, then I suddenly recollected my own, from my experience what happens to a person who goes to the countryside. They might not find a doctor immediately so I asked those questions. 1. Having put to the defendant that his evidence was a "possible reconstruction", counsel then put: [68] Q. I suggest to you that that conversation did not happen, that the mother never called you; do you agree or disagree? A. I, I totally disagree. 1. The statement of claim which commenced the proceedings specifically pleaded that a conversation had taken place between Chantelle, and either Dr Islam or the defendant, on about 28 April 2013. In his final submissions, counsel for Chantelle put that the pleading contained "errors" which could be explained on the basis that "the pleading was filed by the Plaintiff's original instructing solicitors (Shine Lawyers) and it can be inferred that there would have been some time pressure to the put the pleadings on". [69] The facts from which that inference was said to be open were not precisely articulated. In my view, there is no factual basis at all for drawing any such inference. 2. Counsel went on to submit that the "only way for the pleading to make sense is that the April date was a mistake and it should have been March". [70] The difficulty with that submission is that it ignores the fact that on the basis of Chantelle's evidence, it is not simply a matter of a mistaken date. Chantelle denies that any conversation took place with the defendant at all. 3. The pleading is quite specific. The obvious inference, given the relationship between a lawyer and his or her client, and the inference that I draw, is that it was drafted on the basis of Chantelle's instructions to those acting for her at the time. Accepting that to be the case, it follows that Chantelle's instructions were that she had a conversation with either Dr Islam or the defendant. She now denies having had a conversation with the defendant. She did not assert in her evidence, at any time, that she ever had such a conversation with Dr Islam. 4. It should also be noted that in the course of submissions, counsel for Chantelle put that I should find that the defendant's "memory of [the conversation] was a "reconstruction". [71] That was not what was ultimately put to the defendant in cross-examination. What was ultimately put was that the conversation never occurred at all. There is an important difference between these two propositions. 5. Chantelle's departure from a specific pleading, which I am satisfied was advanced in accordance with her instructions, is yet a further demonstration of her unreliability as a witness. I am satisfied that the conversation did take place, in the latter part of March 2013, in the terms about which the defendant gave evidence. 6. It is convenient at this point to address a further submission advanced by counsel for Chantelle arising from the evidence that Chantelle and Mia-Angel travelled to Queensland in late March 2013, following the second consultation with the defendant. Counsel emphasised the evidence of observations made of Mia-Angel by other members of Chantelle's family at or around that time, [72] and submitted that those observations were of a young child who was clearly unwell. That, in my view, does not advance the case for Mia-Angel for three principal reasons. 7. The first, is that those observations do not reflect Mia-Angel's presentation at either of the consultations with the defendant. The second, is that there is no evidence that such observations were ever drawn to the defendant's attention. The third, is that those observations are entirely at odds with the evidence I have addressed below regarding Chantelle's attendance upon Dr Zaer on 18 April 2013 (without Mia-Angel), and the absence of any further medical consultation involving Mia-Angel until 24 April 2013. Chantelle's consultation with Dr Zaer on 18 April 2013 1. Chantelle consulted Dr Zaer in Brisbane on 18 April 2013 for matters relating to her pregnancy. She agreed when cross-examined that she did not take Mia-Angel with her on that occasion: [73] Q. No, in fairness to you, I don't think you have. The detail of the question is important. On 18 April 2013 you consulted Dr Zaer for the purposes of your pregnancy? A. Yes. Q. Now, the question I just asked you is, on that occasion did you discuss with Dr Zaer your daughters presentation? A. Yes I discussed that I was worried and stressed over that. But not in detail, like it came about when he did the referral that was, yeah. Q. And certainly on 18 April 2013 you formed the opinion that Dr Zaer was a competent medical practitioner? A. Yes. Most definitely; my daughter's here because of him; one of the reasons; one of the doctors. … Q. You made a reference in your addition to the answer you gave to your daughter, and I didn't catch what you said. A. He was competent, he did his job, and he did what he observed my daughter, and he printed out referrals for further investigation and testing, and my daughter was - when the results came through, he booked an appointment on that date, he said the results would take a couple of days. At this point it was just before the weekend period and he had made an appointment for Monday, which would've been 29 April, to come in; he said the results will be back then. My appointment didn't occur because I was telephoned to come in urgently and not wait till that appointment time. Q. Ms Bridges, could you please stop. On 18 April 2013, Dr Zaer had not yet seen your daughter, had he? A. No. 1. Chantelle's consultation with Dr Zaer on 18 April 2013 clearly related to matters solely pertaining to herself. Mia-Angel was not present. It also occurred some 21 days after the second consultation with the defendant. I am satisfied in all of those circumstances that for the entirety of that 21 day period, Mia-Angel's presentation was of no concern to Chantelle and, specifically, that Mia-Angel was not exhibiting any signs or symptoms which Chantelle considered warranted any medical intervention. This is confirmed by the following evidence given by Chantelle: [74] Q. Please wait till the end of the question. Why is it you didn't take your daughter to see Dr Zaer on the 19th or the 20th or the 21st, 22nd or 23rd April 2018? A. Well, because I did not have - there's a number of reasons. Let's go back to Dr Hussain and kicking me out of his office and calling me a hypochondriac when..(not transcribable)..worrying parent, and that the fact that I'd been to the doctor a number of times, and he said that nothing was wrong with my daughter. He also tried to say she had hand, foot and mouth disease, which I found out later was not correct, it was in particular a symptom of leukemia, and I in my head, and when I spoke to my family said you've already seen a doctor, and I kept ravelling on about it, and that you've seen a doctor, and the doctor said there's nothing wrong, and then maybe her weight and her wobbling and her walking is not right, because of the fact that she's so large, and that's why she struggled to deal with maybe her balance, and maybe, like, all the excessive eating. But I found out later it was because of the delay of treatment of the cancer, that it caused bleeding in her brain and it was pressing-- HIS HONOUR: I have to interrupt, madam, you weren't asked anything about what you found out later. WITNESS: Okay. HIS HONOUR: What you're being asked is that in circumstances where you regarded Dr Zaer as a competent medical practitioner, and given what you say were your daughter's symptoms at the time, the question is why didn't you take her to see Dr Zaer on the 18th, the 19th, the 20th, the 21st, the 22nd or the 23rd of April? WITNESS: Because I was told that there was nothing wrong with my daughter, and every time I tried to express myself - I'm in another state, take into consideration I'm in another state, I'm not, like in, I don't know where I am, I don't know like Queensland, I don't know Brisbane, I don't know where I am. My family is working; I am trying to tell them when they come back from work, I'm having - look at her, like this isn't right, something's not right, and we just kept going like on repeat about it. And then my uncle seen me getting quite upset, so he took me in to get checked out, because at the end of the day my other child in my - is another child, okay. … Q. Ms Bridges, do you tell his Honour that you were concerned about the changes in your daughter's health in April 2013? A. Yes. Q. Do you tell his Honour that those concerns were very serious concerns? A. Yes. Q. That you were troubled by your daughter's apparent difficulties? A. Yes. Q. And do you tell his Honour that the reason you didn't seek medical attention for your daughter, despite having those beliefs about her health, was because Dr Hussain had called you a hypochondriac? A. No, because Dr Hussain had been seeing her a number of times; didn't take anything into consideration, didn't hear my requests for any blood tests, and because he told me to leave, and he called me a worry parent and a hypochondriac. He told me to get out of his office, I come here too much. "You come here too much. You are a hypochondriac", and he stood - when he was saying that, he stood up and he sent me out. I left in tears. 1. The objective evidence establishes that in circumstances where Chantelle regarded Dr Zaer as competent, she did not take Mia-Angel to see him until 24 April 2013. The inference that I draw in those circumstances is that Mia-Angel was not exhibiting any symptoms or any concern until about 23 April, that there was nothing in Mia-Angel's presentation that caused Chantelle any concern until that time, and that in the 27 day period between Mia-Angel's second consultation with the defendant and her first consultation with Dr Zaer, she was generally well. Bearing in mind Chantelle's acceptance that Dr Zaer was a competent medical practitioner, no other conclusions are reasonably open. Mia-Angel's consultation with Dr Zaer on 24 April 2013 1. On 24 April 2013 Chantelle returned to see Dr Zaer, and took Mia-Angel with her. The clinical note of Dr Zaer in respect of this consultation reads as follows: [75] she has been unwell last night she has a paornychis in the left 3rd toe also mother concerned about her weight also she c/o tummy aches and pain and also distended for ultrasound of the abdomen Examination: General: Height: 92cm W: 18kg Diagnosis: Left paronychia Reason for visit: Left paronychia Actions: Prescription printed: Keflex 125mg/5mL Suspension 5ml four times a day Imaging request printed: Ultrasound scan – Abdomen. (more protuberant belly x 6-8 weeks BULK BILL) Request printed: FBE; ESR; E/LFTs; TSH; T4; Lipids-F; CRP: IGA (child is getting more lethargic and tired – BULK BILL) Imaging request printed: Ultrasound scan – Abdomen. (ABDOMINAL DISTENSION – bulk bill). 1. The evidence of Dr Zaer in relation to this consultation included the following: [76] Q. Do you have access to that consultation record at the present time? A. Yes, I do. Q. It is identified that the reason for the visit is left paronychia. I'll spell that. P A R O N Y C H I A. A. Yes. Q. Can you identify what that is, please? A. Infection of the nail bed. Q. The location of that infection of the nail bed? A. In the left third toe. Q. Was that, to your understanding, the reason for the presentation? A. That was the - yes, that was the reason for the presentation. Q. In consequence of that infection you prescribed an oral suspension of Keflex antibiotics; correct? A. Yes, I did. That's correct. Q. The consultation was in the company of Chantelle Bridges, Roger Gaudio, as well as the child Mia-Angel Bridges-Cole; correct? A. Yes, that is correct. Q. What was your relationship with Roger Gaudio as at 24 April 2013? A. Roger Gaudio was a patient of mine and he is still a patient of mine. That's my relationship with the - with Mr Gaudio, who is a registered nurse. Q. As at 24 April 2013, you'd known him for some time; correct? A. Yes, I had known him for some time. That's correct. Q. You had some confidence that he was a reasonable patient and health practitioner; correct? A. That is correct, yes. Q. In relation to the other content of your consultation note, can I direct you to the opening words, "She has been unwell since last night". A. That is correct, yes. Q. Can you recall what that specifically referred to? A. To the, to the, to the toenail, the pain in the toenail and the swelling of the toenail. Q. What observation did you make on 24 April 2013 of Mia Angel Bridges Cole? A. I've not noted it in the, in the notes, but I remember seeing a, a very tired looking, listless child. Very frail, thin with a protuberant belly. And she was not what you could call as a normal child because she was not active in any way, did not communicate in any way. She just laid in her mother's arms. And that's what I remember from that day. She looked very sick. Q. So you recall her as being lethargic and looking unwell? A. Yes. Looking very unwell and lethargic, yeah. Q. Her mother's concern about her weight, was that a function of weight gain or her inability to maintain weight? A. The - no, there was no such discussion about the weight gain or weight loss. It was about the protuberant belly. Q. In your third line of your clinical note, "Also, mother concerned about her weight". Is that a reference to Mia-Angel Bridges-Cole or a reference to the mother or what? A. I'm sorry. I apologise. That's reference to the baby's weight. I'm sorry. Yeah. That's the reference to the baby's weight. Q. Is it the case that you now can't recall what the precise concern was about the baby's weight? A. Two concerns. One, the, the toenail, and one is the baby being unwell and has - mother feels that, that baby has lost weight. I now recall that. Q. There was a complaint of stomach ache and pain and also some measure of distention? A. That is correct. Q. Did you do a physical examination of the child? A. No, I did not actually do a full physical examination. Q. Did you do any physical examination of the child? A. No, I took a, I took a history from the mother and I looked at the child, and in my opinion, the child looked very, very sick at that time. But I did not actually do a physical examination. I may have palpated the abdomen, but I do not recollect that, which I was concerned about an enlarged spleen or enlarged GI tract. Q. In relation to your observation of Mia-Angel and the history that had been provided, what differential diagnoses did you arrive at to explain the child's condition? A. So there, there, there is a understanding in medicine. There are things called red flags, and when you see a red flag, you've got to identify it. If you see a child that is not active, is listless, not communicating, frail, protuberant abdomen, mother's concerned about weight loss and you can, you can identify such a child, being a really sick child, that's a red flag. So that was the first thing that came to my mind. The fact that she had protuberant abdomen was the feeling that she may have been malnourished due to protein loss, protein energy malnutrition, which is called kwashiorkor. The other possibilities were enlarged-- 1. This evidence is, at least in part, at odds with that of Chantelle who, notwithstanding the contents of Dr Zaer's clinical note, said the following in cross-examination: [77] Q. You told Dr Zaer - and I'm not asking you for the sequence in which you provided this information. I just want to ask you if you told Dr Zaer this information and I'd like you to confirm or deny it. A. Yes. Q. You told Dr Zaer on 24 April 2013 that your daughter Mia Angel had been unwell since "last night"? A. Since when? Q. "Last night"? A. No, I didn't say "since last night" at all. I went on from originally and what had occurred throughout the month prior, that I'd gone to another doctor. I said - he asked - you know, these are the main symptoms that she had - been going on, but worsened, yeah, but wasn't saying "last night". I mean these details to me are just like - in comparison to everything that we went through in March and the fact that it even had to wait till April is proprietary and everything that occurred after that is quite serious. Q. Please pause if you will. Try not to get lost and just focus on the question. Do you remember if there was a change in your daughter's health between 23 April 2013 and 24 April 2013? A. It was the same. The same as it has - what was happening while we were there. She was unwell. Just like she was in March, you know. It continued on to get worse. I mean I don't know how you want me to word that. At the end of the day, whatever, March, was going to a doctor then this wouldn't have been, whatever, continue to occur, wouldn't have occurred into April and wouldn't have been a delay had he just sorted that out when I was taking her in all those times in March and made it difficult for me to take her. 1. Later in the cross-examination, Chantelle was asked: [78] Q. Do you tell his Honour that you did not describe to Dr Zaer that your daughter had suddenly become unwell? A. No, I did, of course I did. But he was working quick; he was doing what he was doing with assessing Mia and printing off, I was talking, and he was writing and typing, and printing and checking Mia. It was all happening very quick. 1. Chantelle also denied [79] that she had given a history to Dr Zaer regarding a problem with Mia-Angel's toe, a proposition which is inconsistent with the clinical note: Q. All right. Did you tell him that there was an apparent blister or mark on your daughter's third left toe? A. No. She had lost her toenail after that. That was on the weekend after - that was over the - 29th was the Monday, so 28th; that was the 27th; on the 28th, over that weekend her toenail - one of her toenails had just was not there. Q. ..(fault in audio visual link)..I think. A. So, there was nothing mentioned when I seen him about her toenail. It was mentioned after, like on the Monday, and at the hospital. Q. Please stop. Need that information on the transcript..(fault in audio visual link).. A. Yes; the answer is no, there was no blister on her foot on her toe or anything like that on that date when I first seen him, on the 25th. Q. Dr Zaer performed a physical examination of your daughter, didn't he? A. Yes. Q. And you tell his Honour do you not, that the rash that your daughter had, which Dr Hussain had told you was hand, foot and mouth disease, remained on her body, and was present on 24 April 2013, don't you? A. Yes. It had - they're blisters, they're not a rash; it's a blood blister, but yeah, they were apparent, yes. Q. Did you tell Dr Zaer you were concerned about your daughter's weight on 24 April 2013? A. Yes. Q. Did you tell Dr Zaer that your daughter had complained of tummy aches when you saw him on 24 April 2013? A. I told him that she had boo boo on her head, and that her stomach was swollen, and he'd seen that anyway, but I'd also gone on about that had been evident in March, had begun, and-- Q. Please focus on the question. A. I am. Q. You're not, with respect. Did you tell Dr Zaer that your daughter had complained of tummy aches when you saw him on 24 April 2013? A. No, I told him that she had boo boo's on her head. She said boo boo. I translate it as pain. Q. Did you tell Dr Zaer on 24 April 2013 that your daughter was becoming more lethargic or tired? A. Yes. Q. Would it be fair to say, Ms Bridges, that your recollection of the detail of the consultations you had with medical practitioners before your daughter was diagnosed with leukemia is not particularly good? A. Excuse me. I don't agree with you. Q. Would it surprise you to understand that Dr Zaer records in his clinical record of the presentation on 24 April 2013 that the reason that you had brought Mia-Angel to his premises was because of a problem with her third left toe? A. No. Because her third toe didn't leave until that weekend. The nail was gone on the weekend. Q. So Dr Zaer-- A. ..(fault in audio visual link)..his notes on the 29th maybe he's got it in there, when we went back for the results, and you can have a look at Redcliffe Hospital's notes as well on the same date of the 29th. Same date I got for adult, same date I was told to go the emergency department. Q. Ms Bridges, you can be comfortably assured that I'm looked at the note Dr Zaer created on 24 April 2013. A. You can look at that all you want. Maybe he noticed some effect on her toe, but her toenail wasn't missing was it. Her toenail decided to fall out from that possibly, but I do not recall any sort of blister on her toe at all at that point. What I noticed at any time to do with her toes, and her feet, was that toenail left on the weekend. 1. Notwithstanding the fact that Chantelle asserted that a rash was present on Mia-Angel at the time of her consultation with Dr Zaer on 24 April 2013, [80] no such history is recorded in Dr Zaer's contemporaneous note, or his evidence. Further, a number of other symptoms which Chantelle claimed to have reported to Dr Zaer are not recorded. [81] I am satisfied that the history provided by Chantelle to Dr Zaer is that reflected in the clinical note and his evidence, namely that the primary reason for Mia-Angel's presentation was a paronychia on her toe, and that she has been unwell the previous evening. The blood test taken on 26 April 2013 1. On 26 April 2013 Mia-Angel underwent a blood test. Dr Zaer's evidence was that he had anticipated that the blood test would have been taken on the same day as he examined Mia-Angel (i.e. 24 April), and that whilst he did not mark it as "urgent" he advised Chantelle to, in effect, make immediate arrangements for it. [82] That is again at adds with the evidence of Chantelle. [83] Clearly, the blood test was not conducted until 26 April, which is generally inconsistent with Chantelle's account of the consultation. The report of the ultrasound of 26 April 2013 1. On 26 April 2013 a report of Mia-Angel's ultrasound included the following: [84] ABDOMINAL ULTRASOUND The liver is normal in appearance. No focal hepatic lesion is seen. The gallbladder and billary tree appear unremarkable. The kidneys are 6.2cm in size and normal in appearance. There is no renal calculus or hydronophrosis seen. Impression: Normal abdominal ultrasound. 1. The significance of this opinion stems from the joint report of Dr Conyers and Dr Vaughan which included the following: [85] The ultrasound performed on 26/4/13 showed no evidence of hepatosplenomegaly suggesting that the deterioration of the marrow had been brief, occurring over a period of weeks to one month. 1. Importantly, the time frame nominated by Dr Conyers and Dr Vaughan as to the likely onset of marrow deterioration post-dated Mia-Angel's second consultation with the defendant. There is no evidence that the defendant was otherwise aware of any such onset, or that there was anything in Mia-Angel's presentation on either of the two occasions on which he saw her which should have alerted him to the possibility of such onset. The pathology results of 29 April 2013 1. Pathology results returned on 29 April 2013 demonstrated that Mia-Angel had a normal haemoglobin of 128 and an elevated platelet count of 610. [86] The significance of those results again lies in the joint report of Dr Conyers and Dr Vaughan who reported: [87] As an example, her haemoglobin level was normal at 128 and her platelet count was elevated at 601. If there was a chronic process that had been present for a long time, both the haemoglobin and platelets should have been much lower on the 26/4/13. 1. I have already noted the time that elapsed between Mia-Angel's second consultation with the defendant and her consultation with Dr Zaer. That supports a conclusion that she was generally well during that period. That is inconsistent with any chronic process having been present. Dr Zaer's referral of Mia-Angel for admission to Redcliffe Hospital 1. Dr Zaer referred Mia-Angel to the Paediatric Emergency Department of the Redcliffe Public Hospital on 29 March 2013. In his letter of referral he said: [88] Thank you for seeing MIA-ANGEL BRIDGES COLE for an opinion and management for her worsening lethargy and tiredness and also vomitting [sic] over the past few days. She has a headache, nausea, and lethargy. I have done blood tests and US and she has an enlarged spleen and her blood count and chemistry are all abnormal as per QML the features are possibly of a MYELOPROLIFERATIVE disorder od [sic] childhood, or some chronic viral bone infection. Results are attached. Please note that the blood collected was pin prick, but the presence of myelocytes, metamyelocytes or peripheral smear is disconcerting. Please review. The assessment of 30 April 2013 at Redcliffe Hospital 1. In her report of 25 May 2018, Dr Conyers noted the following in respect of Mia-Angel's admission to Redcliffe Hospital: [89] [Mia-Angel] presented to Redcliffe Hospital on the 29 April 2013 with a history of being unwell for 6-7 weeks of lethargy and weight gain in the setting of increased appetite. At the time of her admission it was estimated she had gained seven (7) kilograms over the seven (7) week time period. She was noted to also have a history of vomiting, daily, normally after meals. This history was further expanded upon in the ward round note 30th April 2013 (Markovich/Jacob/Prasad). It was noted she had a one week (denoted 1/52) history of vomiting every morning, pre-breakfast and not during the day. Her mother had noticed during this time behaviour changes ('not as sociable, crying, moody') with decline in speech and changes in balance. On examination at her presenting review at Redcliffe Hospital. she was afebrile (Temp 37.7) with normal respiratory rate (22), heart rate (105) and saturations (99%, Room Air). She was noted to be 18.5kg, placing her above the 95th centile for weight, her height was 88cm (50th centile) and head circumference 55.8cm (above 97th centile). Ms Mia-Angel was noted to be an obese child who was alert and interacting normally. Her respiratory examination was unremarkable with no increased work of breathing. Her capillary refilling time was < 2 seconds both peripherally and centrally and she had good volume pulses throughout. She was not tachycardic, with normal heart sounds, and a soft 1/6 ejection systolic murmur at the left sternal edge. She was noted to have a small increase in liver (2 – 3cm below costal margin) and spleen size (2 – 3cm below costal margin). Her abdominal examination was otherwise unremarkable. Her ear, nose and throat examination revealed a normal pharynx with some small lesions of healing ulceration in the tongue. Her skin did not show any rashes, bruises or petechiae. Ms Mia-Angel [sic] central nervous system examination was grossly normal. Her tone, power, reflexes and sensation were noted to be normal in all limbs (Dr Spencer, 2100, 29 April 2013). Her only remarkable findings were obesity and mild cervical chain or lymphadenopathy. 1. These recorded observations demonstrate (inter alia) that Mia-Angel, at the time of her admission to Redcliffe Hospital had: 1. a one week history of vomiting every morning; 2. a one week history of behavioural changes, along with a decline in speech and changes in balance; 3. no rash on her skin; and 4. no severe fever. The diagnosis of Acute Lymphoblastic Leukemia 1. On 5 May 2013 the defendant reviewed the pathology reports which identify the detection of Leukoerythoblastic film. He formed the view at that time that Mia-Angel likely had leukaemia. [90] THE EXPERT EVIDENCE OF DR RUTH RATNER 1. Dr Ruth Ratner provided a report at the request of the defendant on 30 June 2017. Dr Ratner's report was admitted without objection and she was not asked to attend for cross-examination. The assumptions upon which Dr Ratner based her opinion included the following: [91] The records of consultations with Dr Anwarul Islam and [the defendant] state that on the 11.2.13 Mia-Angel Bridges had "severe aphthous ulcers, afebrile … review in 3/7". On 15.3.13 "wakes up in the morning and vomiting… after complaining of vomiting… 5 days in the morning ….Thro out she is alright … opening bowels regularly. O/E t 37.2 abdomen soft no dehydration. On 28.3.13 "papular vesicular rash on the mouth and hand and foot O/E t 37.9. Explained it is HFM (hand, foot and mouth) disease". Furthermore, in the Assumptions [the defendant] recalls that [Chantelle] was also seeing him during this time for her pregnancy. She did not consult [the defendant] in relation to her daughter on 18th and 25th March. [The defendant] recalls that on 28th March [Chantelle] did not mention that Mia had been vomiting, or had diarrhoea. There was no history of abdominal pain. Mia was able to walk, had a normal gait and appeared otherwise well. [The defendant] examined Mia on that day and this included an abdominal examination and found no enlargement of the spleen, liver or kidneys. He advised [Chantelle] that she should be brought back if she did not improve after 5 days. Around one month after 28th March [the defendant] received a phone call from [Chantelle] stating that Mia was unwell and unsteady on her feet. [The defendant] advised [Chantelle] to take her to the Emergency Department as soon as possible and that she should bring her back to the Centre if she was concerned about the hospital wait. [Chantelle] indicated she did not have time to bring her in. A discussion then followed about whether Mia could fly to Queensland where [Chantelle] had family. As he had not seen Mia [the defendant] considered it was [Chantelle's] decision as to whether or not she should travel. He advised [Chantelle] to take Mia to hospital or bring her to be seen by [the defendant] or another doctor at the Centre. 1. These various assumptions accord with the factual findings I have made and which are set out in the preceding paragraphs. 2. In expressing her opinion based on these assumptions, Dr Ratner said (inter alia) the following: [92] As Assoc/Prof Peter Clyne has stated in his report, the presentation of acute lymphoblastic leukaemia is non-specific and difficult to distinguish from acute, self-limiting diseases of childhood and should be suspected if there is persistent and otherwise explained fever, pallor, bruising, palpable liver or spleen. On the three occasions that Mia was seen, 11th February, 15th and 28th March 2013, she had what appeared to be a simple illness. On 11th February she had mouth ulcers which were diagnosed as aphthous ulcers. Although in my experience aphthous ulcers are unusual in children, other viral causes are not particularly uncommon. It was a further 4 weeks before she presented again on 15th March with a 5 day history of vomiting. This is not an unusual presentation in childhood. [The defendant] examined Mia's abdomen and did not find any abnormalities. When she presented a further 2 weeks later, her presentation again was unremarkable. [The defendant] diagnosed hand, foot and mouth disease. At none of these presentations did Mia have any of the suspicious symptoms that may have alerted either of her doctors to a diagnosis of leukaemia. In particular, she did not have unexplained fever, pallor, bruising or a palpable liver or spleen (my emphasis). THE JOINT REPORT OF ASSOCIATE PROFESSOR CLYNE, ASSOCIATE PROFESSOR ROACH AND DR RATNER 1. The expert evidence before me also includes a report prepared following a conclave between Associate Professor Clyne, Associate Professor Roach and Dr Ratner. The questions considered included the following: [93] Would [the defendant's] treatment of Mia on 15 March 2013 be regarded as competent professional practice by the majority of his peers as at March 2013? As there is a factual dispute as to what ailments Mia presented with, Experts are asked to consider this question based on two alternate scenarios below namely: Scenario 1: If Mia presented [the defendant] on 15 March 2013 with a history of having vomited in the morning and done so for the past 5 days, but was otherwise well throughout the day, on examination of the abdomen it was soft and her temperature 37.2° Would a "wait and see" approach have been reasonable? A/Prof Clyne and Dr Ratner Adopting the same definition of "wait and see", [94] the experts agree that a "wait and see" approach was reasonable. Would the majority of GPs taken any of the following steps: Referred Mia for a blood test? If so, on what basis and what testing specifically? Referred Mia for an ultrasound? If so, what basis? Referred Mia to a specialist. If so, what type of specialist? Referred Mia for any further tests and investigations? If so, what tests and/or investigations. A/Prof Clyne and Dr Ratner The experts agree that the majority of general practitioners would not have referred Mia for a blood test, ultrasound, referral to a specialist, or for further tests or investigations. Scenario 2 If Mia had presented to [the defendant] with complaints of having experience with persistent vomiting, severe ulcers, lesions on the hands and feet, abdominal pain, fever and swollen stomach, and weight gain: Would a "wait and see" approach have been reasonable? A/Prof Clyne and Dr Ratner Assuming that scenario 2 is continuing from scenario 2 in paragraph 1(b) which relates to 11 February, then A/Prof Clyne and Dr Ratner assume that the vomiting, the mouth ulcers, the lesions on the hands and feet, the fever, swollen stomach and abdominal pain, have persisted since 11 February, in which case a wait and see approach would not have been reasonable. Would the majority of GPs taken any of the following steps: Referred Mia for a blood test? If so, on what basis and what testing specifically? Referred Mia for an ultrasound? If so, on what basis? Referred me to a specialist. If so, what type of specialist? Referred Mia for any further tests and investigations? If so, what tests and/or investigations? A/Prof Clyne and Dr Ratner The experts agree the majority of general practitioners would have referred Mia for urgent specialist paediatric assessment and would not have undertaken any testing themselves. Would [the defendant's] treatment of Mia on 28 March 2013 be regarded as competent professional practice by the majority of his peers as at 2013? As there is a factual dispute as to what ailments Mia presented with, experts are asked to consider this question based on two alternate scenarios below, namely: 1. It is noted that "Scenario 1" accords with the factual conclusions that I have reached. 2. A further question considered by the experts was as follows: Scenario 1: If Mia had presented to [the defendant] only with a complaint of papular vesicular rash on the mouth and hand and foot, Was it as it reasonable to make a diagnosis of hand, foot and mouth disease? A/Prof Clyne and Dr Ratner Assuming a short history of less than four days and in the absence of other symptoms, the experts agree it was reasonable to make a diagnosis of hand, foot and mouth disease. However, if the history was of a greater length of time and certainly more than one week, then other diagnoses should have been considered. Were any further tests or investigations required? If so, what tests and/or investigations? A/Prof Clyne and Dr Ratner The experts agree if the history was four days or less, no further tests or investigations were indicated. If consideration of other diagnoses was indicated as above, then further tests as appropriate were required. The tests would be determined by the findings at the time. Scenario 2: If Mia had presented to [the defendant] with complaint of popular [sic] vesicular rash in addition to alleged previous complaints of persistent vomiting, severe ulcers, lesions on the hands and feet, abdominal pain, fever and swollen stomach, and weight gain: Was it reasonable to make a diagnosis of hand, foot and mouth disease? A/Prof Clyne and Dr Ratner The experts agreed that it was not reasonable to make a diagnosis of hand, foot and mouth disease alone. Should Mia have been referred for a blood test? If so, on what basis and what testing specifically? Should Mia have been referred to a specialist. If so, what type of specialist? Should [the defendant] have referred Mia for any further tests and investigations? If so, what tests and/or investigations? A/Prof Clyne and A/Prof Roach In answer to (d) to (g) [sic] inclusive the experts agreed the answer is no. She should have been referred for urgent paediatric assessment. 1. Once again, "Scenario 1" accords with the factual findings that I have reached. 2. A further question considered by the experts was the following: Were the presentations on 11 February 2013, 15 March 2013 and 28 March 2013 consistent with simple and unconnected conditions or were the presentations consisted with an ongoing medical condition? A/Prof Clyne, A/Prof Roach and Dr Ratner The experts agree that if Mia regained good health between each of the three presentations, her illnesses were consistent with simple and unconnected conditions. However, they also agree that if Mia did not return to good health between presentations, then illness was more consistent with an ongoing medical condition than with simple and unconnected condition. 1. For the reasons I have expressed, I am satisfied that Mia-Angel returned to good health between presentations. CONSIDERATION OF THE DEFENDANT'S LIABILTY 1. As I have noted, there is no issue raised by the defendant in the present case that he owed Mia-Angel a duty of care. The defendant relies principally upon a s 5O of the CLA which is in the following terms: Standard of care for professionals (1) A person practising a profession ("a professional" ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. 1. Once a defence under s 5O(1) of CLA is pleaded and placed in issue (as it has been in the current proceedings) the Court must determine a defendant's liability in negligence by first addressing that provision. That approach comes about because if the matters in s 5O are made out, that supplants the analysis which might otherwise be required by s 5B of the CLA. [95] In other words, s 5O supplants the common law, and the general principles of negligence set out in other provisions of the CLA that would, but for the application of s 5O, apply to the determination of the defendant's liability in negligence. [96] A defendant who seeks to rely on the provisions of s 5O bears the onus of establishing the elements of that defence. [97] 2. I have already set out some excerpts from the report of Dr Ratner. Her opinions included the following: 1. the defendant acted in a manner that was widely accepted as competent professional practice in 2013; [98] 2. based upon the presenting signs and symptoms, Mia-Angel's presentation on each of the two occasions with the defendant had a simple explanation, such that there was no reason to refer her for a blood test; and [99] 3. there was no reason to refer Mia-Angel to a specialist given the symptoms that she displayed in February and March 2013. [100] 1. Further, as I have noted, the conclave report expresses a consensus that the defendant's treatment of Mia-Angel was in accordance with accepted practice, and otherwise entirely appropriate. 2. Bearing in mind the provisions of s 5O(2) there is no basis on which to conclude that any of these opinions are irrational. In these circumstances, the defence under s 5O is made out. 3. It follows that there must be a verdict for the defendant in each of the proceedings. ORDERS 1. For the foregoing reasons, I make the following orders: 1. In proceedings 2016/131797, I enter a verdict for the defendant Zaffar Hussain. 2. In proceedings 2017/329472, I enter a verdict for the defendant Zaffar Hussain. 3. I will hear the parties on the question of costs. Endnotes 1. Commencing at [8]. 2. Commencing at [13]. 3. Commencing at [41]. 4. (1989) 168 CLR 79; [1989] HCA 60. 5. Written submissions at [56]. 6. Written submissions at [58] – [59]. 7. Written submissions at [59]. 8. See generally Onassis and anor v Vergottis [1968] 2 Lloyd's Rep 403. 9. T35.5 – T33.9. 10. T159.13 – T159.22. 11. T160.12 – T160.40. 12. T35.7 – T36.7. 13. T36.30 – T38.14. 14. T160.44 – T161.17. 15. See for further examples T45.30 – T45.48; T56.20 – T58.27; T59.39 – T60.26; T60.30 – T60.44; T60.46 – T61.13; T64.36 – T66.35; T94.14 – T94.21; T99.21 – T100.13; T115.12 – T115.29; T118.26 – T118.27; T120.21 – T120.32; T125.37 – T126.14. 16. T222.43 – T222.50. 17. T424.13 – T425.15. 18. Evidentiary Statement at [15]. 19. Evidentiary Statement at [22]. 20. Evidentiary Statement at [24]. 21. See Court Book (CB) 447. 22. Evidentiary Statement at [26] – [28]. 23. Evidentiary Statement at [29]. 24. Evidentiary Statement at [30] – [39]. 25. T62.35. 26. T62.42. 27. T49.21 – T49.30. 28. T51.7 – T51.16. 29. T55.37 – T55.46. 30. T56.6 – T 56.10. 31. T135.44 – T135.46. 32. Exhibit F at p 36. 33. Exhibit F at p 36. 34. T148.11 – T148.16. 35. Evidentiary Statement at [40] – [45]. 36. Evidentiary Statement at [30] – [32]. 37. Evidentiary Statement at [14] – [24]. 38. Exhibit F at p 37. 39. T149.41 – T149.43. 40. T136.44 – T136.50. 41. T134.45 – T135.17. 42. Exhibit F at p 79. 43. Evidentiary Statement at [46] – [49]. 44. T92.10 – T92.19. 45. Exhibit F at p 79. 46. T122.45 – T123.49. 47. Exhibit F at p 78. 48. T122.45 – T122.49; T416.10 – T416.19. 49. Exhibit F at p 78. 50. Exhibit F at p 156. 51. Exhibit F at p 36. 52. [50] – [57]. 53. Exhibit F at p 36. 54. Evidentiary Statement at [27] – [ 34]. 55. T153.43 – T153.8. 56. T153.19 – T153.20. 57. T150.10 – T150.24. 58. T413.13 – T413.44. 59. Evidentiary statement at [59] – [62]. 60. T37.22 – T37.31. 61. T399.41 – T400.1. 62. At [7]. 63. T164.12 – T164.24. 64. Evidentiary Statement at [35] – [45]. 65. T91.42 – T92.21. 66. T100.22 – T104.42. 67. T109.27 – T109.47. 68. T110.25 – T110.27. 69. Written submissions at [25]. 70. Written submissions at [25]. 71. Written submissions at [41]. 72. Written submissions at [43] – [48]. 73. T73.5 – T73.41. 74. T74.13 – T75.44. 75. CB at 483. 76. T61.14 – T63.9. 77. T71.13 – T71.40. 78. T81.34 – T81.38. 79. T81.40 – T83.11. 80. T82.9 – T82.13. 81. T82.26 – T82.47. 82. T64.29 – T64.33. 83. T85.27 – T85.36. 84. CB at 493. 85. CB at 93. 86. Exhibit F at p 51 – 58. 87. CB at 93. 88. CB at 485. 89. CB at 339. 90. T88.42 – T88.47. 91. CB 335. 92. CB 355. 93. CB 80 – 83. 94. (Meaning without investigation or active intervention, including prescription). 95. Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 at [334] – [335]; South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [30]. 96. Gould at [127]; Sparks at [17] – [18]; [326]. 97. Gould at [30]. 98. CB 336 at [4]. 99. CB 336 at [4](a). 100. CB 336 at [4](i) Amendments 10 February 2023 - Typographical changes made DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2023