The recent case of Coote v Kelly1 highlights the need of the presiding judge when making a finding of fact to also provide the reasons for such a finding.
If such does not occur, if such is not clear on the face of the judgment, a party is likely to be successful in an Appeal.
Mrs Coote (the Appellant) was the widow and executrix of Mr Malcolm Coote who had sued his doctor, Mr Kelly for failing to diagnose and treat his melanoma.
Mr Coote had attended upon Dr Kelly on 5 occasions from 3 September 2009 until 20 May 2010 complaining of a growth on his left foot.
Dr Kelly treated what he diagnosed as a plantar wart on the sole of Mr Coote’s foot by applying cryotherapy (liquid nitrogen).
Subsequently, three other doctors inspected and treated Mr Coote’s foot – Dr Wall, Dr Hiddens and Dr Cooke.
Dr Wall and Dr Hiddens initially diagnosed a plantar wart which they both treated by applying cryotherapy and this occurred from 2 September 2010 until 11 March 2011.
It was not until 11 March 2011 that Dr Hiddens sought the opinion of Dr Cooke as the doctor was concerned that the “wart” had been bleeding easily when paring back over the previous consultations and by 11 March 2011, it had now changed colour.
A biopsy was organized which identified melanoma.
The melanoma was removed shortly thereafter but it had metastasized. The evidence at trial was that where there is a distant metastasis, death was most likely within 2 years however if the melanoma was detected and removed early, a complete cure was highly likely.
Mr Coote commenced a claim alleging that Dr Kelly was negligent in failing to diagnose his melanoma and as a consequence, he now suffered from a terminal condition.
Mr Coote passed away in May 2012.
Judgment at first instance
Schmidt J delivered judgment on 14 March 2012 and found that:
- Dr Kelly had breached his duty of care by failing to observe and investigate a small black spot which her Honour found had been on his foot from the beginning of September 2009; but
- that it was probable that the melanoma had already metastasized prior to Mr Coote consulting Dr Kelly and therefore the breach did not cause Mr Coote any harm.
Accordingly, Mr Coote’s claim was dismissed for though he had established breach of duty, he had not established causation.
Mr Coote challenged the finding of no causation whilst Dr Kelly challenged the finding of breach.
The Court of Appeal Decision
The Court of Appeal dealt firstly with the challenge by Dr Kelly as to the finding of breach of duty.
The finding of breach turned on the resolution of conflicting testimonial evidence of primary fact, which fell to be evaluated in the light of the contemporaneous medical records as well as the conflicting expert opinions.
The primary judge accepted the evidence of Mr and Mrs Coote – that there was a black, hard, slightly raised spot on the sole of Mr Coote’s left foot at the time of consultation with Dr Kelly in September 2009. In fact, the primary judge more so accepted the evidence of Mrs Coote in that the black spot was present even before the consultation in September 2009.
Dr Kelly conceded that if it was held that there was a small black spot present at the time of initial consultation, then had breached his duty.
Dr Kelly challenged the finding that there was a black spot present on Mr Coote’s foot on the basis of his evidence, the evidence of three other doctors who treated Mr Coote and the contemporaneous records of all doctors which do not show any change in colour of the lesion until 11 March 2011. Further, all four doctors diagnosed and treated the lesion as a plantar wart.
The Court of Appeal reviewed:
- the oral evidence provided by Drs Kelly, Wall, Hiddens and Cooke;
- the respective contemporaneous medical records of the doctors noted above;
- the evidence of the experts; and
- the testimony of Mr and Mrs Coote.
The Court of Appeal held that there was not a failure to make requisite findings of fact but rather a failure in the process of fact finding as disclosed by the reasons given by the trial judge:
“where it is apparent that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried”2
The Court of Appeal held that the process of fact finding as disclosed by the reasons miscarried for the following reasons:
- The dismissal of the evidence of Drs Wall and Hiddens as unreliable was not addressed in the reasons;
- The reasons did not properly engage at all with the remarkable fact that every contemporaneous record of Mr Coote’s left foot was inconsistent with the testimonial evidence of Mrs Coote which was accepted. The trial judge was open to make such a finding but reasons must be provided;
- the finding that Mr Coote did have a plantar wart (with the melanoma hidden under such) was inconsistent with the evidence of Mrs Coote (which the trial judge had previously accepted) and such inconsistency was not addressed in the reasons.
Accordingly the Court of Appeal held that the finding of breach could not stand. It was noted however that the Court was not stating that there was no breach as such was open on the evidence. The Court could not accept the finding by the primary judge due to the reasoning of fact finding.
The Court of Appeal then dealt with the challenge by Mrs Coote as to the finding of no causation.
The question was whether the failure to diagnose and investigate melanoma in September 2009 caused “particular harm”. The “particular harm” alleged was metastasis of the melanoma.
The Court held that the metastasis had occurred prior to its excision on 26 March 2011, “but just as it was not possible to say whether the melanoma was pigmented in September 2009 from its appearance in 2011, so too it was not possible to conclude whether it had metastasized by September 2009.”3
The Court had difficulty understanding why the primary judge who had previously accepted the evidence of Mrs Coote refused to do so regarding the size of the melanoma, instead preferring the evidence of Mr Coote. Again, the finding of fact was open to the trial judge however the reasons for such were not detailed in the judgment:
“What has already been said demonstrates that her Honour’s findings as to causation favourable to Dr Kelly are not such that the plaintiff must inevitably fail. It follows that there must be a retrial, notwithstanding its expense and inconvenience.”4
The Court ordered that the appeal be allowed and that the orders of the Court made on 14 March 2012 be set aside, and there be a new trial.
Practitioners faced with an adverse finding of fact should always undertake a thorough analysis of the reasons provided as part of the process of fact finding.
If the reasons are lacking or inconsistent throughout the fact finding process, then you will have reasonable grounds for an appeal on the basis the process of fact finding has miscarried.