Coote v Kelly; Northam v Kelly [2016] NSWSC 1447

Supreme Court New South Wales

Medium Neutral Citation: Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Hearing dates: 23 May 2016 – 25 May 2016; 30 May 2016 ; 2 June 2016 Date of orders: 13 October 2016 Decision date: 13 October 2016 Jurisdiction: Common Law Before: Davies J Decision: In each of the proceedings 2011/339988, 2014/173600 and 2014/173601 I make the following orders:

(1) Judgment for the Defendant; (2) The Plaintiff is to pay the Defendant's costs. Catchwords: NEGLIGENCE – medical negligence – alleged failure to diagnose melanoma on the sole of the foot – deceased consults three doctors about lesion on the sole of the foot - whether lesion was a plantar wart at the time of consultations with the doctors – inadequate note-taking by defendant - whether lesion had appearance of plantar wart - melanoma undoubtedly present at later time – expert evidence concerning relationship between plantar wart and melanoma - whether defendant breached duty in diagnosis and treatment – causation - whether lesion had metastasised at time of consultations – no breach of duty shown

EVIDENCE – credibility - reliability – demeanour – human memory – reconstruction of events – dangers of relying on demeanour - importance of contemporaneous objective evidence Legislation Cited: Civil Liability Act 2002 (NSW) Compensation to Relatives Act 1897 (NSW) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Cases Cited: Campbell v Campbell [2015] NSWSC 784 Coote v Dr Kelly [2012] NSWSC 219 Coote v Kelly [2013] NSWCA 357 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 Nguyen v Nguyen (1990) 169 CLR 245 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Category: Principal judgment Parties: Melissa Coote as Executor of the Estate of the Late Malcolm Coote (Plaintiff) Melissa Northam (Plaintiff) Dr Steven Kelly (Defendant) Representation: Counsel: B Toomey QC, R O'Keefe & G Guirguis (Plaintiffs) J M Morris SC & E Elbourne (Defendant)