Tyrrell v Gibbs & Anor [1999] NSWCA 365

New South Wales Court of Appeal CITATION : Tyrrell v Gibbs & Anor [1999] NSWCA 365 FILE NUMBER(S) : CA 40679/97 HEARING DATE(S) : 17 September 1999 JUDGMENT DATE : 8 October 1999

John Stewart Tyrrell PARTIES : v Nathan Gibbs South Sydney District Rugby League Football Club Ltd JUDGMENT OF : Mason P at 1; Handley JA at 52; Sheller JA at 53

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 1127/94 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ

A: K Ryan COUNSEL : 1R: R Sheldon 2R: A Bell A: Bush Bourke & Company, Sydney SOLICITORS : 1R: Blake Dawson Waldron, Sydney 2R: Colin W Love & Co, Sydney CATCHWORDS : NEGLIGENCE - Medical practitioner - Issue as to symptoms disclosed - Credibility finding favouring doctor challenged - Documentary evidence ambiguous DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40679/97 DC 1127/94

MASON P HANDLEY JA SHELLER JA

Friday, 8 October 1999

John Stewart TYRRELL v Nathan GIBBS & Anor

JUDGMENT

1 MASON P: The appellant's negligence claim against the respondents was dismissed in the District Court. 2 In 1991 the appellant was a professional rugby league player employed by the second respondent (the Club). He played in the reserves. The first respondent (Dr Gibbs) is a medical practitioner who acted as the honorary club doctor at that time. Club players used to consult him on the field or at his Maroubra surgery. Dr Gibbs looked to Medicare when and if it was appropriate to seek remuneration for medical services. 3 The appellant pleaded that he injured his right elbow on about 6 April 1991 when playing against Newcastle at the Sydney Football Stadium. Paragraph 6 of the statement of claim then asserted that from the date of the injury on an ongoing basis for approximately twelve months Dr Gibbs treated the injury inappropriately. 4 The appellant's primary case against the Club was that it was vicariously liable for the negligence of Dr Gibbs who was said to be its employee and agent. The trial judge (Sinclair DCJ) held that Dr Gibbs was not an employee and the appeal against this finding was not pressed. 5 In this Court the appellant sought to sheet home liability to the Club on an alternative basis, deriving from the appellant's situation as an employee of the Club but not dependent upon establishing that Dr Gibbs was an employee. The appellant relies upon the clear proposition that an employer has a non-delegable duty of care to its employee with respect to provision of a safe system of work (Kondis v State Transport Authority (1984) 154 CLR 672 at 687-8; Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313 at 344-5, 361, 395). The appellant submits and the respondent disputes that this proposition extends in the present case to a non-delegable duty to ensure the absence of negligence with respect to medical treatment by the Club doctor. It will be necessary to grapple with this legal question if the appellant succeeds in his appeal against the verdict in favour of Dr Gibbs. 6 The appellant sought in this Court to press an alternative case against the Club, alleging omissions by Mr Curry, the first grade coach, and Mr Chidiac, the strength coach. This alternative claim lies outside the particulars in the pleadings and it was not the way in which the appellant ran his case at trial. Such a basis of liability cannot be advanced on appeal. 7 Paragraph 7 of the statement of claim sets out the way in which the appellant pleaded his claim in negligence against the two respondents: The defendants owed a duty to the plaintiff to take reasonable care to avoid exposing him to risk of further injury in the examination, diagnosis and treatment in respect of any injuries sustained by the plaintiff in the course of his employment and the plaintiff was further injured through the negligence of the defendants. PARTICULARS OF NEGLIGENCE (a) Failure to properly diagnose the plaintiff's injury. (b) Failure to obtain any or adequate radiological assessment of the injury. (c) Advising and treating the plaintiff by way of active treatment at a time when appropriate treatment should have been directed to obtaining union of the said fracture. (d) Failure to refer the plaintiff for appropriate specialist treatment. (e) Failure to properly heed or observe the plaintiff's complaints and symptomatology. 8 A hard fought trial involved, in the main, a conflict of evidence between two principal witnesses, the appellant and Dr Gibbs. 9 His Honour concluded, with reluctance, that he was unable to prefer the evidence of the appellant to that of Dr Gibbs. He referred to the advantage of having seen both witnesses giving evidence and being cross-examined. He also referred to the benefit of contemporaneous records and the probabilities. The particular matters encompassed in the general remarks were recounted earlier and later in the judgment. 10 The appellant's case depended essentially upon acceptance of his evidence about the symptoms he had reported to Dr Gibbs. He sought to establish that the diagnosis and treatment based upon those symptoms fell short of a reasonable standard of care. The appellant relied mainly on the expert evidence of Dr Hughes, an orthopaedic surgeon specialising in elbow surgery who treated the appellant from January 1994 onwards. 11 Each side relied, to a degree, upon certain records for corroboration. 12 Dr Gibbs was one of five persons whose names appear on the letterhead of the South Sydney Orthopaedic & Sports Medicine Centre and who conducted that centre from an address in Bunnerong Road, Maroubra. According to the letterhead, Dr Gibbs and Dr Grace Bryant attended to the sports medicine side of the practice. A key exhibit (exhibit 6) was a set of hand written medical records recording attendances at the practice in 1991 and 1992. Exhibit 6 was not an exhaustive record of medical treatment by members of that practice, if only because there were records of Medicare claims for additional treatment supplied by Dr Gibbs at or near the playing field on the day of a club match. Some of exhibit 6 related to treatment for football injuries that had nothing to do with the appellant's elbow. 13 Dr Gibbs had little direct recollection of his treatment of the appellant. This is understandable given the nature and size of the medical practice and the fact that it was only in 1994 that the appellant first signalled his intention to sue. By and large, Dr Gibbs relied upon the records both for what they contained and did not contain as to the symptoms complained about. 14 Faced with adverse credibility findings, the appellant seeks to draw corroboration from exhibit 6 in relation to his central allegations. However, exhibit 6 paints nothing like the picture of constant complaint constantly ignored that emerges from the appellant's evidence in chief. And some of the records are inherently ambiguous as to treatment administered or its location, or refer to complaints and treatment not affecting the elbow. Thus: ¨ the record of the initial consultation by Dr Bryant on 9 April 1991 is in the following terms: (R) elbow - swelling limited E/F > medially focal olecranon triceps power pain non tender ? Traumatic bursitis ice/stretches NSAI/physio ¨ the record of consultation with Dr Gibbs on 13 May 1991 is in the following terms: 13.5.91 League 1/7 R elbow swollen ++ after game voltaren S/A 2/7 x ray ¨ there are Medicare claims by Dr Gibbs for 16 and 22 June 1991 (weekend dates) in which claims were made with respect to consultations and "Joint or Other Synovial Cavity, Aspiration and/or Injection"; [Nothing in this item confines it to the elbow and the item encompasses injections as well as aspirations.] ¨ the entry for 24 June 1991 in exhibit 6 relates to the broken finger and includes reference to the fact that the appellant was sent away to have it x-rayed. There is no mention of the elbow; ¨ the record for 28 June 1991 deals exclusively with the finger; ¨ the records of treatment by Dr Gibbs on 24 April, 4 September, 9 September and 20 November 1991 record complaints and treatment that have nothing to do with the elbow; ¨ the final record is dated 19 February 1992 in which Dr Gibbs refers to the swelling of the right elbow in the following terms: R elbow swelling after game last w/k . 2/7 ago. ? cause hot attempted aspiration unsuccessful Naprosyn/Flopen 15 The second piece of documentary evidence consists of the Health Insurance Commission's records for Medicare benefits claimed on behalf of the appellant between 1 February 1991 and 3 July 1997. There are many attendances upon many practitioners. Only few of these records are relevant or debatably relevant to the issues in this appeal. This document obviously corroborates the appellant in relation to dates upon which he received medical treatment from Dr Gibbs. (The appellant frankly conceded that he had used this information in preparation to give evidence in chief.) There is a dispute between the parties as to whether the Medicare records corroborate the appellant on the critical issue of the information provided to Dr Gibbs upon which Dr Gibbs based his treatment in 1991. 16 For the present, it is sufficient to record that the Medicare records disclose: