VALE v HO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and STEIN JJA 12 September 1997, 16 October 1997 [1997] NSWCA 328 TORTS — NEGLIGENCE — MEDICAL PROCEDURE — ASSESSMENT OF WITNESSES — The respondent performed on the appellant a surgical procedure to correct the appearance of her nose. Four months later the respondent performed a further corrective procedure to the appellant's nose. The appellant alleged that the respondent had been negligent in that he had failed to straighten her nose in the second procedure, and that he had failed to warn her of the risk that the second procedure might be unsuccessful. A primary issue at trial was whether the second operation was actually directed to straightening the appellant's nose. The trial judge preferred the evidence of the respondent and gave judgment against the appellant. On appeal: The appellant sought a new trial on the grounds that the trial judge: 1. erred in preferring the respondent's evidence to that of the appellant; 2. had misunderstood the appellant's case; and 3. had failed to explain his reasons adequately. Held: The appellant failed to demonstrate that the trial judge made any obvious mistake or that he failed to explain his reasons adequately. Mason P I agree with Priestley JA. Priestley JA This is an appeal in which the appellant seeks a new trial on the basis that the trial judge who heard and decided her case in the District Court made mistakes in deciding it against her. There was a good deal of detailed evidence before the trial judge and the case is of evident importance to the appellant. However, without diminishing the significance of those matters, for the purposes of dealing with the appeal, what is relied on by the appellant in asserting that she is entitled to a new trial does not require lengthy statement. In November 1986 the appellant consulted the respondent, a plastic surgeon, about an operation to improve the appearance of her nose. On 22 January 1987 the respondent did a septoplasty upon the appellant at Petersham Private Hospital. This operation was mainly concerned with the upper part of the appellant's nose and was not intended to, and did not, do anything relevant to what may have been at that time a slight deviation in the lower part of her nose. This aspect of her nose was something the appellant raised with the respondent later. After the operation of 22 January 1987 the appellant saw the respondent at his rooms on three occasions. On the last of these, 14 April 1987, according to the respondent's notes made at the time, he observed that there was a slight deviation of a cartilage graft that had been made within the upper part of the appellant's 2 UNREPORTED JUDGMENTS nose in the January operation and recommended a further operation to correct the consequences of this. At the trial the appellant gave a different account of what was said at this meeting. On 5 May 1987 the respondent carried out an operation in his rooms under local anaesthetic upon the appellant. According to his notes, the operation was to correct the consequences of the deviation of the cartilage graft. During the following year the appellant became concerned by a deviation of the lower part of her nose to the right. She saw the respondent about this on 9 May 1988. According to his notes, he recommended septoplasty to straighten the deviation. He also noted that it would not be possible to get the septum and nose perfectly straight. Preliminary arrangements were made for an operation at a hospital but on 10 June 1988 the appellant, again according to the respondent's notes, "Rang to cancel - unable to take time off. Will rebook". The respondent did not hear from the appellant again until 6 May 1993 when he was served with a statement of claim which had been filed by the appellant in the District Court shortly before. At the end of April 1995 the appellant's case was heard by his Honour Judge Sinclair QC. He handed down his reserved judgment in favour of the respondent on 11 May 1995. In his reasons he recorded that the appellant had relied on four particulars of negligence. Of these there were two which in the appeal it was contended should be sent for a further trial because of what were said to be the judge's mistakes. The appellant did not seek to support either of the other two. The two particulars relevant to the appeal were that the respondent had (a) failed to straighten the appellant's nose and (b) failed to warn the appellant of the risk that the procedure might be unsuccessful. These two particulars of negligence were alleged only in regard to the operation of 5 May 1987. No negligence was ever alleged in regard to the earlier operation in January. Before the two particulars could succeed the appellant had first to establish the allegation made in her statement of claim that the respondent was retained and employed by the appellant on 5 May 1987 to straighten her nose. The trial judge recorded in his reasons that the respondent's defence to the appellant's allegations of negligence was that he had not been retained on 5 May 1987 to straighten the bottom of the appellant's nose but to remedy a lump near the bridge of her nose caused by the movement of the graft implanted in the operation of January 1987, that the operation of 5 May 1987 had been properly performed, and that it did remedy the effect of the movement of the graft. Thus a primary issue for the trial judge was whether the operation undertaken by the respondent on 5 May 1987 was directed only to the correction of the consequences of the movement of the graft in the upper part of the appellant's nose or was directed both to that and also to a straightening of the deviation at the bottom of the appellant's nose at the same time. On this issue the evidence of the appellant and the respondent conflicted. The appellant, eight years after her interview with the respondent in which the operation was discussed, without (so far as appears from the evidence) the benefit of any contemporaneous note or writing of any kind, gave her recollection of the conversation, which if accepted, supported her claim as to the operation the respondent was setting out to do on 5 May 1987. The respondent said he did not have any direct memory of the conversation on 14 April 1987. He had his notes of the consultation with the appellant on 4 November 1986, of the operation carried out on 22 January 1987, of his having seen the appellant on 23 January URJ VALE v HO (Priestley JA) 3 1987, 27 January 1987, 24 February 1987 and 14 April 1987, of the operation of 5 May 1987 and then of having seen the appellant on 8 May 1987 and 9 May 1988. He gave evidence of the practice he regularly followed in talking to patients and making notes of what was said and done in consultation. By reference to his notes and his usual practice he gave evidence inter alia of the conversation of 14 April 1987 and of precisely what he did in the operation of 5 May 1987. The appellant's case depended on the trial judge making factual findings in her favour on a number of issues, the first of which was the one I have been describing, namely, what was it that the respondent undertook to do in the operation of 5 May 1987? In his reasons the trial judge set out the contentions advanced to him by the opposing counsel as to why the evidence of their respective clients should be accepted on this first issue and the other issues. The trial judge next set out a statement of the relevant legal principles. In the appeal no complaint was made about the trial judge's reasons to this stage. The appellant's criticism was directed to the final part of the judge's reasons. This consisted of the following paragraph under the heading of "Assessment of the Witnesses": "IT am confidently satisfied that the evidence of the defendant should be preferred to that of the plaintiff. He presented in Court as an honest and reliable witness who did not seek to expand or qualify what was recorded in his notes. His notes were made contemporaneously and before any complaint was made by the plaintiff. He impressed me as a competent and truthful witness. On medical issues his evidence and opinions are supported by those of Dr Gibson. On the other hand I am unable to accept the plaintiff as a reliable witness as to her conversations with the doctor. Her evidence in many respects is in conflict with the medical records of the defendant. I do not doubt that she is a genuine person but unfortunately it would seem her recollection has been badly affected by subjective matters and one can only wonder from what source there was sown in her mind the idea that at the initial operation the defendant had inserted a piece of plastic in her nose. Further more it must be remembered that the plaintiff's case is based on the second procedure, and the second procedure alone and that Dr Gibson does not attribute any of the plaintiff's complaints to the second procedure. For those reasons I have come to the conclusion that the plaintiff's case fails and there should be a verdict for a defendant." It was submitted for the appellant that the trial judge was wrong in saying that the respondent did not seek to expand or qualify what was recorded in his notes. I do not think there is much weight in this criticism. On one meaning, perhaps the most common meaning, of "expand" it would be right to say that the judge was misstating what had happened by using the word: obviously, the respondent said more in his evidence than was recorded in his notes. It seems equally obvious to me however that the meaning of the word in the circumstances of the case was that the respondent did not seek to introduce matters in his evidence which did not have a basis in his notes. So understood, the judge's comment seems to me to be substantially justified. It was further submitted that the judge's remark that one could only wonder how the appellant got the idea in her mind that in the first operation the respondent had inserted a piece of plastic in her nose showed a misunderstanding of the evidence. Reference was made to later medical opinion that the condition 4 UNREPORTED JUDGMENTS of the appellant's nose was consistent with plastic rather than a graft having been inserted within the top of her nose at the time of the first operation. It seems to me that the criticised remark by the trial judge was directed to stating his opinion that no plastic insertion had been made at the first operation, this opinion being based on the contemporary records and the doctor's account of his own practice in regard to plastic insertions, which the judge accepted. As the judge's following sentence shows, he had it in mind that in any event the matter of the insertion related to the first operation about which no complaint was made. To this however counsel for the appellant responded that the matter went to an assessment of the relative credit of the appellant and the respondent and the evidence of the later specialists supported the appellant's credibility. I do not see how this can be so as this evidence all originates from times well after the operation. Once the trial judge accepted, as he was well entitled to do, that the combined evidence of the contemporaneous notes and the respondent's practice in regard to plastic inserts showed no plastic insert had been made, then if it was the appellant who raised the matter with the later specialists she saw, this would validate the trial judge's comment, or, if not she, but the later specialists raised the possibility in their consultations, the judge was entitled to think she was transposing the later specialists' comments back to an earlier time, genuinely no doubt, but, from the trial judge's point of view, unjustifiably. It was also submitted that to say that Dr Gibson did not attribute any of the plaintiff's complaints to the second procedure was to show a misunderstanding of the appellant's case. Counsel justified this submission by saying that the appellant's complaint was that the deviation of her lower nose had not been attended to in the operation of 5 May 1987, not that the operation had caused complaints. This criticism however uses the word "complaint" in two different senses. The judge was talking about medical complaints, not legal ones, and I do not think the criticised sentence shows any mistake on the part of the judge. Counsel for the appellant relied heavily on one rather unusual aspect of the evidence. The appellant's evidence had been that in the consultation of 14 April 1987 there had been discussion of the deviation of the bottom of her nose. The respondent later denied any such discussion. In the meantime however counsel for the respondent in cross-examining the appellant had put questions to her on the footing that there had been some discussion. The line of questioning made it clear that counsel must have been instructed that there had been some such discussion but that it had been on the footing that nothing more was going to be done in the operation of 5 May 1987 than what was necessary to deal with the shifting of the grafted cartilage and that one aspect of this, the rasping of the cartilage graft, might have some effect on the extent of the deviation at the bottom of the nose. As already indicated, when the respondent came to give his evidence subsequently, he did not recollect the conversation on which his counsel's questions had been based. It seems clear that at the least there was some failure of memory on the respondent's part involved in this sequence of events. However, it is also clear that the version which was being put by the respondent's counsel to the appellant was one which, although it was closer to the appellant's recollection than the respondent's later evidence, was still one which only involved the respondent in undertaking the operation which he in fact carried out on 5 May 1987. The most that can be assumed against the respondent is that at some stage he had made a statement or had told counsel the substance of the conversation which counsel put to the appellant. That conversation was consistent with the respondent's case which was that the operation he undertook URJ VALE v HO (Priestley JA) 5 on 5 May 1987 was directed to correction of the shifted cartilage and was not directed to correcting the deviation at the lower end of the appellant's nose. Some improvement of that part of the nose could have flowed from the operation, but that was not the object of the operation. To effect a full correction of the deviation would require the operation which the respondent later recommended to the appellant on 9 May 1988. For the appellant, two things were said about this feature of the case. One was that the trial judge should have taken the incident into account in preferring the credibility of the appellant to that of the respondent and the other was that in any event the matter should have been dealt with in the judge's reasons and his not having done so was a failure on his part to comply with his obligation to explain the basis of his decision in an understandable way. This submission also stressed the brevity of the decision making part of his Honour's reasons set out above, and relied also on the fact that the respondent had made some concessions in the course of his evidence which were said to be inconsistent with other parts of his evidence and also to lend support to some things said by the appellant. Dealing first with the concessions point, I do not think what counsel was referring to amounted to substantial admissions by the respondent, but assuming that they did, they were not related to the issue of what it was that the respondent was undertaking to do in the operation of 5 May 1987 and in my opinion had no material bearing on the main factors influencing the judge not to accept the appellant's recollections of the conversation of 14 April 1987. The transcript of the proceedings before the trial judge shows that he was well aware of the concessions. I do not think that his not mentioning them in his reasons indicates that he had forgotten them, but rather that he did not think them important enough to mention. As to the point made about the difference between the version of the conversation of 14 April 1987 put to the appellant in cross-examination by the respondent's counsel and the evidence later given by the respondent, I do not think it was bound to have the significance to the judge that counsel submitted to this court it ought to have done. The matter did not go unnoticed at the trial. The judge himself asked questions about it and must unavoidably have had it in mind in reaching his decision about whose evidence was to be preferred. An important feature of the conversation as put to the appellant by the respondent's counsel is that it was not in conflict with the respondent's consistent position that he did not undertake the operation of 5 May 1987 to correct the deviation of the lower part of the appellant's nose. It was open to the trial judge having seen the appellant and the respondent give their evidence to come to the conclusion that he did, namely that he should accept the respondent's case. This means that the principal point that the appellant can make arising out of this incident is that the trial judge should have dealt with it in his reasons. Although there is some force in this submission, I do not think it supports the view that there was any error of law in the trial judge's formulation of his reasons. In my opinion he sufficiently stated the basis of his reasoning. It was: the contemporary records did not support the appellant's case on the issue of what it was the respondent was to do in the operation of 5 May 1987, and indeed justified an inference the appellant was mistaken; it was never suggested at the trial that the notes were not genuinely made, nor could there have been any basis for such a suggestion; and he did not accept the appellant as reliable. 6 UNREPORTED JUDGMENTS The arguments for the appellant that I have dealt with, and other factual arguments, were put thoroughly and the court was taken in detail through the matters in evidence which it was said supported the submission that the trial judge's reasons were so unsatisfactory as to warrant a new trial being granted. Having considered those submissions as fully as I can, I am left with the clear impression that the trial judge took the respondent's contemporaneous notes as a provisional guide, considered the appellant's evidence carefully and bearing in mind the probabilities of the case was not prepared to accept her recollection of what it was that the respondent was undertaking to do in the operation of 5 May 1987. This made a gap in her case which could not be filled by the respondent's evidence. Decisions of the High Court make it abundantly clear that intermediate appellate courts should not interfere with the findings of a trial judge when arrived at as they were in the present case, or order a new trial, unless satisfied that the trial judge had made some demonstrable error or failed to carry out the duty of explaining why he or she reached the principal conclusions in the case. In my opinion it has not been demonstrated for the appellant in the present case that the trial judge made any obvious mistake or that he failed to explain his reasons adequately. In my opinion the appeal should be dismissed with costs. Stein JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: B Toomey QC/T McKenzie Counsel for the Respondent: D J Higgs SC/M Fordham Solicitors for the Appellant: Adelsteins Solicitors for the Respondent: Tresscocks & Maddox