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.

Judgment

Malcolm Coote, the deceased, died on 23 May 2012 from metastatic acral lentiginous melanoma (ALM). The melanoma was first diagnosed on 16 March 2011 following a biopsy taken by a Dr Rosalind Hiddins who had been consulted by Mr Coote since January 2011 for what various doctors believed to be a plantar wart on his left foot. He had first consulted the Defendant, Dr Steven Kelly, about pain and discomfort in that foot on 3 September 2009. Dr Kelly diagnosed a plantar wart which he treated with cryotherapy. Mr Coote went back to see Dr Kelly on a few occasions in 2009 and 2010 for that and other problems. He had also seen Dr Anthony Wall in the same practice as Dr Kelly on 2 September 2010. Dr Wall also considered that the lesion on the foot was a plantar wart and treated it with cryotherapy. In January 2011 Mr Coote was still having pain in his left foot. He was unable to obtain an appointment with Dr Kelly so he went to an afterhours medical centre at Charleston where he saw Dr Hiddins. He had first consulted her on 4 January 2011 because of an injury he sustained to his right elbow. A week later he saw Dr Hiddins again, this time for the foot problem. Dr Hiddins diagnosed a plantar wart and treated it with cryotherapy on that day, on 28 January and 11 February. On 24 February Dr Hiddins first observed pigmentation. She asked her supervisor Dr Cooke, to look at the lesion. He suggested letting the position settle for two weeks and then having another look at the lesion. When Mr Coote returned to see Dr Hiddins on 11 March 2011 Dr Hiddins observed a second lesion and noted that the first one had grown. It was also a darker colour. For that reason she performed a biopsy and sent it off for pathological testing. Prior to his death Mr Coote commenced proceedings against Dr Kelly for negligence. Mr Coote’s evidence was taken on commission because it was not known how long he would live. The trial was brought on with considerable expedition and took place before Schmidt J who gave judgment against the Plaintiff some five days later: Coote v Dr Kelly [2012] NSWSC 219. An appeal was taken by Mr Coote’s executor, his wife Melissa Coote, to the Court of Appeal where a new trial was ordered: Coote v Kelly [2013] NSWCA 357. Thereafter in 2014 two other sets of proceedings were commenced. The first was by Melissa Northam (formerly Melissa Coote) claiming under the Compensation to Relatives Act 1897 (NSW), and the other proceedings were also brought by her claiming nervous shock as a result of her husband’s diagnosis and death. The proceedings formerly commenced by the deceased have now been amended so that the Plaintiff is Melissa Coote as Executor of the Estate of the late Malcolm Coote. That claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). The success of the claims depends largely on whether the evidence by Malcolm Coote and his wife about the description of the lesion is accepted. Their evidence, although not in entire agreement, was that the lesion contained a black centre, perhaps the size of match head as well as other pigmentation. This, the Plaintiff says, should have alerted Dr Kelly to the fact that the lesion was not a plantar wart but was a melanoma. The evidence of Drs Kelly, Wall and Hiddins was that at all times when they saw Mr Coote until the consultation with Dr Hiddins on 24 February 2011 the lesion did not display pigmentation nor any other indication that it was other than a plantar wart. That issue of breach was one of the two issues in the proceedings relating to liability. The issue of breach is determined chiefly by an assessment of the evidence of Mr and Mrs Coote on the one hand and the evidence of the three Doctors on the other hand which it is necessary to examine carefully. However, some aspects of the expert evidence shed light on that factual evidence. The other issue was the issue of causation, that is, whether it was any failure on Dr Kelly’s part that can be said to have been the cause of the metastasis of the melanoma leading to Mr Coote’s early death. Put another way, does the Plaintiff prove at least that by 20 May 2010 (the date of the deceased’s last consultation with Dr Kelly) the lesion had not metastasised: Coote v Kelly (CA) at [63]. The issue of causation is then to be determined by the evidence of the experts based to some extent on the evidence accepted in relation to breach. The Defendant submitted that, even if he breached his duty of care in not properly diagnosing the lesion, all that the Plaintiff lost was the chance of a better outcome. That is not sufficient, the Defendant submitted, to establish liability for negligence: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12. It should be noted at the outset that by agreement between the parties I am to have regard not only to the evidence given before me but to the evidence at the first trial provided the witnesses who gave it are called and are available to be cross-examined. This evidence included the evidence of the deceased given on commission prior to the first trial. In addition I may have regard to the evidence of the expert general practitioners who gave evidence at the first trial but not at the trial before me, with the exception of Dr Lynch’s evidence about using an electronic calculator and his evidence concerning causation (see at T 277), and of their evidence about what a general practitioner would remember about the appearance of a lesion at some later time (see at T3); this evidence is referred to and commented on in the Court of Appeal’s judgment at [34] and [45].

breach of duty

The deceased’s evidence

In the deceased’s affidavit sworn 24 November 2011 the deceased said that in about August 2009 he started to experience pain on a spot on the sole of his left foot. Because he had difficulty seeing the source of the pain he asked the Plaintiff to have a look at it. She said to him:

There is a dark circular mark, about the size of a match head, between the heel and arch of your foot which is raised above the adjacent skin.

The deceased said that he examined the lesion during September and October 2009 using a mirror. He said that he and the Plaintiff did not keep a record of the changes they observed, but those changes were that it was becoming darker in colour, crustier and more raised in appearance. It was also becoming more asymmetrical in shape and was flaking around the perimeter. The deceased said that he went to see his general practitioner, the Defendant, to have it checked out. The Defendant looked at the sole of his left foot for a few seconds without any magnification device. He said that it was a plantar wart. He pared it back with a scalpel and applied a substance to it from a hand-held container. There is no dispute that this was cryotherapy. The Defendant told him to come back in a few weeks and said it was likely there would be multiple treatments. The deceased returned to see the Defendant on 15 and 30 September and 14 October 2009. On each occasion the Defendant treated the lesion in the same way. He said that around April 2010 the lesion continued to grow in size and was becoming increasingly painful, it was causing him to limp and was interfering with his capacity to do his job. The deceased said that by May 2010, having increased at a relatively constant rate from September 2009, it had more than tripled in size from the time that he first saw it. He went back to see the Defendant. He told the Defendant that it was painful and was getting worse. The Defendant said he would treat it the same way as he had in the past because there was nothing much else they could do. On 2 September 2010 he consulted Dr Wall (the Defendant was not available) and told him that he was having difficulty walking on his left foot because of his plantar wart. He said that he was there to have it treated. Dr Wall examined his foot without the assistance of any magnification device. The deceased asked Dr Wall if there was any other way that it could be treated. Dr Wall said words to the effect:

Not really. This is a viral condition. It usually lasts for a period of about two years and will then probably disappear on its own. It doesn’t matter what treatment you give, cryotherapy, excision, salicylic acid or other generic treatment. With each of these it is probable it will just return.

The Deceased said that Dr Wall applied cryotherapy in the same manner as the Defendant had done. As a result of what Dr Wall told him the deceased said he did not think there was much point in continuing with the treatment. In January 2011, after having been unsuccessful in his application to the Northern Territory police force, he again sought medical advice about the lesion on his left foot. He was unable to obtain an appointment with the Defendant so he went to an after-hours medical centre at Charlestown where he saw Dr Rosalind Hiddins. At the beginning of the consultation he said words to the effect:

I have a plantar wart on the bottom of my left foot and it’s very painful.

Dr Hiddins examined the foot and then said:

Is that a plantar wart?

The deceased said to her:

That’s what it has been treated as in the past. Two doctors have treated it. That’s what they told me and I have been having it frozen.

Dr Hiddins said that she would freeze it.

He saw Dr Hiddins again on 28 January and 11 February 2011 when she repeated the treatment. On 24 February, after Dr Hiddins had examined the left foot, she said:

It’s not acting like a plantar wart should.

She called her colleague Dr Peter Cooke who examined the foot and said:

It doesn’t look like a plantar wart to me. Is it any bigger than it was before?

The deceased said:

Well yes, it has been growing. If it’s not a plantar wart what is it?

Dr Cooke said:

Well it could be a number of things. Worst case scenario melanoma. We’ll do a biopsy and see what comes of that.

As mentioned earlier, the deceased gave evidence on commission on 16 December 2011. His evidence in chief was principally the affidavit sworn 24 November 2011 although that was supplemented with some brief evidence about his tax returns, the treatment that he was receiving and some evidence consisting of drawings made by the deceased of the appearance of the lesion at various consultation times with the Defendant. The deceased said that the first time he looked at the lesion on his foot was probably after the Defendant treated it for the first time. The first drawing indicated where on the foot the lesion was situated. The second indicated its size and shape as at 14 October 2009 with the drawing measuring 5mm in diameter. The third drawing was its appearance in May 2010 and its diameter appears there as 10mm. Finally, it was drawn as at the time of the first consultation with Dr Hiddins where its diameter was 15mm. In each depiction the deceased had drawn the lesion as being neither circular nor symmetrical in appearance. In cross-examination the deceased said that before he saw the Defendant he could not say what colour the lesion was. He asked the Plaintiff to look at it and she said that there was a dark circular mark there. He said after the cryotherapy the skin around it was slightly darker. He said that it first went black “within the first – between September and probably October, through those first three or four cryotherapies that we had”. He did not notice any little black spots in the centre of the lesion. He said the skin around it was slightly darker. He said that at about 5 September the lesion became darker “grey going on black type of colour”. He said it remained black from mid-September 2009 until it was finally excised and diagnosed. He insisted in answer to a number of suggestions put to him to the contrary that it was definitely black. It felt as if he had a small pebble in his shoe to walk on. He said that as at 28 January 2011 it was quite a bit bigger than 5 millimetres and it did not contract in size between 11 and 28 January 2011.

The Plaintiff’s evidence

The Plaintiff prepared a witness statement for the first trial on 24 February 2012. In that statement she said that in August 2009 the deceased said to her that he had something wrong with his foot which felt like a bit of grit or a pebble in his shoe. She said that he showed her his foot. She saw on the sole of his foot between the heel and the arch a little black mark about the size of a match head. She said it was not a perfect round shape. In her oral evidence at the first trial she said that it was raised about 1 millimetre above the skin. She thought it was a piece of black tar and went to scrape it off with her fingernail. She said it was raised above the surrounding skin and she was not able to scrape it off. She suggested that he should have it checked out. The Plaintiff had had plantar warts herself as a child. She was also familiar with them as a physical education teacher coaching sporting teams. She had seen them on some of her pupils. She said that the mark on the deceased’s foot did not look anything like a plantar wart that she had seen. She said that after the deceased went to the doctor and had cryotherapy treatment she noticed that the lesion was growing in size. It became very black in the middle and more dark brown on the outsides. She said it looked as if it had bled into the skin and was leaching outwards. It was black and crusty following cryotherapy and was also becoming more raised above the surrounding skin. In cross-examination she reiterated that from the outset it looked like a small piece of black tar. She said the only time that she could categorically recall that it changed in nature was to get bigger and blacker but she could not put a time on that. She said that the position of the lesion was “right at that nexus point of the heel, the outside foot and the arch”. She denied that it was on his instep. She said that by the time the deceased saw Dr Wall it was about the size of a one cent piece and at least 2 millimetres high, probably more. By the time the deceased saw Dr Hiddins in January it was about the size of a five cent piece but was not round in diameter. She drew a picture of its shape and size which ultimately became page 103 of the court book. The picture she drew had ill-defined edges but it measured about 8 to 10 millimetres in diameter. She was asked if it was possible that by about 28 January 2011 when the deceased went to see Dr Hiddins that the lesion had started to contract but she said “No, never”. On 11 February she denied that there were two lesions. She said it was an extension of the original. The evidence that she gave before me did not deviate from her evidence at the first trial. In particular, she was adamant that the lesion was always black.

The Defendant’s evidence

The Defendant’s evidence which largely emerged during cross-examination at this trial, was largely consistent with the evidence he had given at the first trial. It may be summarised as follows. He had no specific recollection of consultations with the deceased but he had a general recollection of treating the deceased for a plantar wart on his foot. At the earlier trial he said that he could recall two matters. He said he could recall an occasion where the deceased had his foot on the Defendant’s desk with a blue disposable sheet underneath it. The second memory was when the deceased was lying on the Defendant’s bench while the Defendant treated the wart. The Defendant said at the second trial that he did not retain those two memories at the time of giving evidence at the second trial. The Defendant’s notes of the consultations are brief in the extreme. They relevantly read:

3/9/9 Large (L) plantar wart → cryo

...

15/9/9 Cryo to wart

30/9/9 Cryo to wart

14/10/9 Cryo to wart

20/05/2010 Debridement and cryo of left foot plantar wart

Because the Defendant had no specific recollection of the consultations nor of what the lesion looked like, he was reliant on both his usual practice and on the fact that he had written “plantar wart” on his notes. Although the Defendant was pressed hard in cross-examination about his conviction from writing “plantar wart” that the lesion had no melanotic features, his evidence was to the effect that the fact that he wrote “plantar wart” meant that, in accordance with his usual practice, it had certain characteristics including thickening of the skin and that it was not in any way pigmented at the time he saw it. The words “plantar wart” were, he said, a descriptor. He said that he wrote “plantar wart” and that, by definition, is not pigmented. He accepted in cross-examination at both trials that a plantar wart can be pigmented but he would not have used the term “plantar wart” nor treated it the way he did if it had been pigmented. He stressed a number of times that if it had had pigmentation, not only would that have been a red flag, but it would have meant that it was inappropriate to treat it by way of cryotherapy, and consideration would have to have been given to a differential diagnosis that would have included a melanoma. Another way of expressing this is that what the Defendant was saying was that writing “plantar wart” was a shorthand way of saying that he had examined the lesion and been satisfied from the algorithm of colour, shape, contour and size that it had features of a plantar wart and did not have melanotic features. He said it was not necessary to use a dermatoscope or any form of magnification because any pigmentation would be apparent to the naked eye. He said that although he could not remember the lesion or the consultations themselves to know if there was any change in the size or otherwise of the lesion during the nine month period he treated the lesion, he said that his usual practice would have been to inspect it each time the deceased came in for treatment. His evidence was to the effect that he would not have treated the lesion with cryotherapy if it had been pigmented. For that reason, he was satisfied that it was a plantar wart. I thought that the Defendant was an intelligent and careful doctor whose main fault, which he accepted, was the shorthand way he kept his notes. He was honest enough to admit that he had no recollection of the consultations. I accept, however, that when he wrote “plantar wart” in his notes and treated the lesion with cryotherapy he did so, having properly assessed that the lesion he saw had all of the characteristics of a plantar wart and none of the characteristics of a melanoma with both of which he was familiar. I accept that his reference to pigmentation in a lesion being a “red flag” means that he was very aware of the need to exclude from any diagnosis the possibility of a lesion being a melanoma. The evidence he gave at his first trial that he always considers malignancies for foot lesions further supports the position that he took care to ensure that the lesion did not have characteristics of a melanoma such as being pigmented.

Dr Wall

Dr Wall saw the deceased only once on 2 September 2010. That appears to have occurred because Dr Kelly was not available on that day. Dr Wall’s notes were as brief as the Defendant’s notes. The entry for 2 September simply reads:

cryo plantar wart

Dr Wall’s evidence at the second trial before me was that he had a clear recollection of the consultation. That was because of the aggressive approach that the deceased took to the consultation with Dr Wall. Dr Wall said that when he asked the deceased and his wife to come into the consultation room, the deceased stood in the room and shouted at him saying “You’re not my doctor. My doctor is Dr Kelly and the only reason I’m seeing you is because I can’t get in to see my doctor”. That was the reason Dr Wall had a clear recollection of the consultation. He said that Mrs Coote sat to the left of her husband and did not say a word throughout the consultation. Dr Wall said that although he could clearly remember the consultation the clinical details in relation to the lesion were not so clear. He said his recollection of it was that it was a warty lesion but was not coloured. He treated it with cryotherapy although he prefers not to treat plantar warts in that way. However, he was trying not to inflame the situation further with the deceased. Dr Wall, whilst accepting that there must have been a melanoma on the foot when he saw the deceased, said that there was nothing to indicate the presence of the melanoma because if there had been he would have noticed it. At the first trial Dr Wall gave this evidence:

Q. Could you tell her Honour from the start of the consultation till the end of the consultation what happened, what you observed and whatever discussion you can recall?

A. Yes. I saw, I saw Mr Coote on that one occasion and I recall that he came to me and said that he was seeing me because he couldn't get his usual GP. He wasn't available on that day. And he stated that the reason for his attendance was to have a plantar wart frozen. And I recall that I straightaway told him that I didn't usually like to freeze plantar warts in my patients because I didn't, I hadn't found it to be a successful treatment. Mr Coote told me then that that was the sole reason for his attendance upon me that day and I reassured him that I would help him out with his wart. However, before I did, I had a talk with him about the natural cause of plantar warts.

Dr Wall was challenged in his evidence before me that he said nothing at the first trial about the deceased’s hostility towards him nor made any reference to it when his memory was being challenged about his recollection of that consultation. Dr Wall gave three explanations for not having done so. He first said he was not asked at the first trial to say why he had a specific recollection of the consultation. Secondly, he said that he did not wish to speak ill of the deceased at the first trial because he was either dying or had just died and Dr Wall did not want to say unpleasant things about his character. The third reason he gave for not having given the explanation concerning the deceased’s hostility was:

I was cut off, I wasn’t allowed to finish, when I started discussing or giving my version of what happened in the consultation.

After Dr Wall had said at the first trial what appears at [45] above, Mr Morris SC, who was leading evidence from him, said:

Q. Just in relation to that, would you like, if you remember the explanation you gave, would you tell her Honour, or if you don’t have a recollection, tell her Honour?

At that point there was an objection on a Browne v Dunn basis because the evidence had not been put to the deceased when evidence was taken on commission. It is to be noted, however, that it cannot be said that Dr Wall was prevented from giving the evidence concerning the deceased’s hostility because, as Dr Wall made clear at the trial before me, that hostility occurred at the outset of the consultation, and Dr Wall had moved on in his explanation at [45] to the discussion he had with the deceased about plantar warts. It was only at that point he could be thought to have been “cut off”.

He was asked in cross-examination at the first trial whether he used a dermatascope and he said that he did. He was then asked why he did not tell the Court that he had applied a dermatoscope at the examination when he described the consultation. Dr Wall said that he had not finished what he wanted to say and mentioned that he had also not described that he froze the wart. In re-examination Mr Morris said this to Dr Wall:

And this may all have fallen from my own conduct of your evidence in chief, but you also mentioned that you felt that you were cut off and didn’t even mention the cryotherapy. Just tell us, if you don’t mind: you took a history, examined, used the dermatoscope and then what happened?

Dr Wall did not use that opportunity to give the evidence of what had transpired at the outset of the consultation concerning the deceased’s hostility.

In relation to Dr Wall’s recollection of the consultation with the deceased the following evidence was given at the trial before me (T 114):

Q. Yes and you are telling me, I think and you'll have the opportunity to answer this, that you remembered the consultation because, among other things, of the unusual circumstances surrounding the consultation and his unusually inimical attitude to you, is that correct?

A. That's the, that's the bottom line answer as to why, why I have a solid recollection of that man and his wife sitting there and the wife not saying a thing for the whole consultation.

Q. Right. You don't have any doubt at all that she was in the consultation?

A. None whatsoever. He sat there, she sat to his left.

Q. Right and she sat there without saying a word?

A. Without saying a single word and--

Q. But she was there for the whole of the consultation?

A. That's right, I felt for her during the consultation.

A little later in cross-examination he gave this evidence (T 117):

Q. Is it also the fact that Mrs Coote did not attend the consultation?

A. Absolutely not, no. I distinctly remember her, absolutely, there’s no doubt about that--

Q. So there’s absolutely no doubt--

A. Absolutely none.

Q. --and not only of what you’ve told us about Mr Coote’s reaction is correct, but there is also no doubt that Mrs Coote was in the surgery during the consultation?

A. Absolutely.

At the first trial Dr Wall said that he remembered observing a hyperkeratotic lesion which is a lesion with abnormal thickening of the upper outermost layers of the skin. He said that at one end of the lesion the skin was thicker and at the opposite end it appeared to become more superficial where it ended in a rim of dry skin. The surface of the lesion had a yellowish discolouration but there was no other discolouration on the lesion. Dr Wall specifically denied that the lesion was black. If it had been black he would have immediately been alarmed and thought it was not a plantar wart. He would have thought it was a melanoma until proved otherwise. He said that he agreed with the diagnosis of plantar wart. Dr Wall said he remembered that he looked at the lesion with a dermatoscope. Dr Wall agreed that he had been provided with a copy of an affidavit made by the deceased. He denied, however, having no recollection of the consultation and giving his evidence based on the information contained in the deceased’s affidavit. There were difficulties with Dr Wall’s evidence given in the trial before me. He was wrong about the Plaintiff being present at the consultation. I accept her evidence that she was not present. The school records corroborate her evidence. That he was so adamant the Plaintiff was present is of concern when the remainder of his evidence is assessed. It causes me to have some doubts about his account of what happened during the consultation particularly the unpleasantness at the outset. That is especially so when it was never raised at the first trial and in circumstances where, contrary to what he said at the second trial, he was not cut off from relating it and had a further opportunity in re-examination. Nor can I ignore that Dr Wall had his own interests to protect with his medical insurer being involved, and he appeared to be a little defensive. On the other hand, I had the impression that Dr Wall was an experienced doctor who well knew the difference between the appearance of a plantar wart and a melanoma. That experience led him to accept that, despite the appearance of the lesion, there must have been a melanoma present because of what ultimately transpired, and he did not feel good about the fact that he must have missed it. It is also of significance that the evidence he gave at the first trial was given 18 months after the consultation whereas the evidence in the trial before me was given five years and nine months after the consultation. Dr Wall did not at the first trial assert that the Plaintiff was present nor that there had been an altercation with the deceased. His evidence at the second trial about these matters is a very good example of what is discussed in the authorities which I will set out at length later in this judgment. However, I consider his evidence at the first trial is likely to have been reliable but I place little store on the evidence he gave before me unless it was consistent with his evidence at the first trial. That evidence strengthens the view I have from the evidence of the Defendant and, particularly, Dr Hiddins (to whom I will come) that the lesion had all the indications of being a plantar wart.

Dr Hiddins

The deceased’s first consultation with Dr Hiddins was on 4 January 2011 but it concerned pain in his right elbow from having lifted a generator onto a motor vehicle when he was camping. There was no mention of the lesion on the foot. Dr Hiddins’ notes record consultations as follows:

Surgery consultation recorded by Dr ROSALIND HlDDINS on 11/01/2011 History:

arm had improved from last visit

wanting warts cryo

Reason for visit:

Left Cryotherapy, Plantar wart

Procedures:

Left Cryotherapy, Plantar wart

to continue with wart off at home - r/v again in 2 weeks for further cryotherapy

Surgery consultation recorded by Dr ROSALIND HlDDINS on 28/01/2011 has been using wart off in between treatments

on exam - large 5mm wart appears to be contracting

Reason for visit:

Wart cryotherapy

Procedures:

Wart cryotherapy

Surgery consultation recorded by Dr ROSALIND HlDDINS on 11/02/2011

repeat visit

hasn't been using wart off in between

large wart measures 10mm diameter

wart closer to heel 5mm diameter - ? separately (sic) from normal tissue

Reason for visit:

Cryotherapy, Plantar wart

Procedures:

Cryotherapy, Plantar wart

advised on pumice and wart off in between cryo

Surgery consultation recorded by Dr ROSALIND HlDDINS on 24/02/2011 History:

has had cryo treatment for last 8 weeks

r/v with Dr cooke (sic) after debriding wart - ? proud flesh or granulation tissue

plan

not for treatment today - leave to heal for next 2 weeks and review

sterilisation codes - 447 060211, 431 180111

Reason for visit:

Plantar wart

Surgery consultation recorded by Dr ROSALIND HIDDINS on 11/03/2011 History:

had 2 weeks off wart treatment - lesion has grown in meantime

soft, painful and vascular

2 x 3mm biopsy removed from area and swab taken

no groin or popliteal fossa nodes

Examination:

General:

Pulse: 79

Reason for visit:

Skin biopsy

Procedures:

Skin biopsy

Actions:

Request printed to Douglass Hanly Moir: Histology; wound swab MCS. (History of wart-like lesion - atypical appearance

[??]ection ? wart ? pigmented lesions)

r/v next week with histology report

Dr Hiddins recalled the deceased presenting to her with a painful lesion on his foot. This was the second time she had seen him in the practice she was working in. She said that the lesion was on the instep or the arch of the foot, close to the heel. It was not on the weight bearing part of the foot but close to the heel. The deceased told her that he was trying to improve his fitness to pass a police fitness test and he was getting considerable pain from the lesion on his foot which was preventing him from improving his fitness. He mentioned that he had seen a GP previously for treatment with cryotherapy. Dr Hiddins could not recall how many treatments he had undergone. When Dr Hiddins looked at the lesion she had the impression that it was a plantar wart. In her evidence at the first trial Dr Hiddins said that she had an image in her head of what the lesion looked like on the first occasion she saw the deceased for that problem. She said it was approximately 5mm in diameter, fairly symmetrical, a nice circular appearance to it, it was predominantly flesh coloured and had very small brown spots scattered throughout which was consistent with a plantar wart. She examined it using a magnifying glass with a fluoro light around it. Dr Hiddins had never seen a melanoma before that time. She did know, however, that melanoma could occur on the foot. She was shown the diagram drawn by the deceased of the size of the lesion as at January 2011 (Court Book 103) but she said that the lesion was much smaller than what was represented in the diagram when she first saw it. She also denied that it was dark all over as the Plaintiff indicated in the diagram. She had treated plantar warts in that practice in the seven months prior to March 2011. Dr Hiddins said that the lesion’s growth was quite symmetrical. It had a distinct border which was regular and it was quite circular and discrete from the surrounding tissue. There was no crustiness on the first occasion that she saw the deceased before she applied the cryotherapy. Dr Hiddins said that plantar warts could last for up to 24 months regardless of treatment. The treatment was aimed at generating an immune response to cause inflammation so that the body’s immune system recognises the virus and fights off the wart. She said she was aware of that in January 2011 because her supervisor, Dr Cooke, had discussed that with her prior to treating the deceased. Dr Cooke had told her that he had had good anecdotal experience by treating warts at regular intervals. He had told her that she was more likely to get a successful result if the patient came in regularly. If there had been large gaps in the treatment there may not have been an adequate response generated. When Dr Hiddins first saw the deceased she thought that the treatment he had received had been infrequent. The deceased had told her that he had a truck driving job and was often away from Newcastle “quite a bit”. She said that she could recall what the lesion looked like on the second occasion on 28 January. She said it looked as if it had improved and was actually shrinking or contracting in its appearance. She measured the lesion at 5mm in diameter. The deceased told her that he had been using a salicylic acid preparation. Dr Hiddins observed that it was still flesh coloured with small brown spots and had more of a dry flaky top to it. It was a little bit more shrivelled. On the next occasion, 11 February 2011 she noted that the large wart measured 10mm in diameter but there was another wart closer to the heel 5mm in diameter. That was of the same appearance – predominantly a flesh coloured lesion with brown spots. The deceased said he had not used the salicylic acid since the last consultation. The growth and the further lesion did not concern her because use of cryotherapy can actually cause the virus to become more active. In that way the wart can become worse before the immune system responds to improve the position. She expected, therefore, that when he returned on the next occasion the lesion might have cleared. In her evidence at the first trial Dr Hiddins said that she knew a melanoma could occur on the foot. When asked what her understanding of a melanoma was she said it was usually a pigmented lesion and was quite a serious type of cancerous skin cancer. On the other hand, a plantar wart is a type of skin lesion usually on the sole of the foot. It was caused by a virus that produces an irregular looking lesion on the sole of the foot. When the deceased came back on 24 February Dr Hiddins said that it had dramatically changed. It had gone from a flesh coloured lesion to a more purple pink type lesion and it was painful for him to walk on it. It was a vastly different lesion and it was much larger. When she pared it at that time it bled so she abandoned that. With that presentation Dr Hiddins considered the need for a differential diagnosis. Alarm bells began to ring. She asked her supervisor, Dr Cooke, to have a look at it to give a second opinion. He recommended not treating the lesion at that consultation but to leave it for two weeks to see what progressed and to see if it resolved. When the deceased returned on 11 March he reported again that he had not used the salicylic acid. The lesion had grown from the previous treatment and it was painful for him to walk on it. Dr Hiddins noted that it was a lot darker than when the deceased had first presented, and she was a bit suspicious that perhaps it was a cancerous lesion at that point. She recommended a biopsy of it. Her referral letter to Dr Ralph Gourlay dated 16 March 2011, after the biopsy demonstrated a melanoma, said in part:

There are two distinct lesion (sic) in very close proximity. The first measures 10mm in diameter, the second 5mm diameter with what appears to be a deep-rooted base.

At the first trial it was put to Dr Hiddins, on the basis of a statement made by the deceased, that when he told Dr Hiddins he had a plantar wart on the bottom of his left foot which was painful, Dr Hiddins examined his foot and said words to the effect “Is that a plantar wart?” Dr Hiddins said that she did not recall saying that. When Dr Hiddins gave evidence before me it was put to her that when she looked at the lesion that she said words to the effect that it didn’t look like a plantar wart. Again, Dr Hiddins said that she could not recall saying that. There was no evidence from anyone that Dr Hiddins made a positive assertion to the deceased that the lesion did not look like a plantar wart to her. The question asked seemed to be a gloss on what the deceased reported that Dr Hiddins had said. I am not satisfied that she did say to the deceased “Is that a plantar wart?” It is inconsistent with what is disclosed in her contemporaneous notes and in her evidence which I accept. Dr Hiddins was also shown at the first trial a picture of the lesion taken on 28 March 2011, the day before it was excised. Dr Hiddins said that when she last saw the lesion on 11 March it was a purple-bluish hue whereas she described the colour in the photograph as quite brown and almost black. I was impressed with Dr Hiddins. She struck me as a careful doctor although very junior at the time of these events. Of all the doctors she made the most detailed notes which are very helpful in reaching a view about the appearance of the lesion at the times she saw the deceased. Her memory of the consultations was good, perhaps aided by the fact that she was a relatively new doctor and perhaps aided by her notes. Although she had not seen a melanoma by the time she saw the deceased she had seen a number of plantar warts and she was well aware of melanoma and what to look for in a lesion. It is significant also that she examined the lesion under magnification. I accept that Dr Hiddins had her own interests to protect because a letter claiming contribution from her had been sent by the Defendant’s lawyers. She was not, however, at all defensive in the way she gave her evidence Dr Hiddins’ evidence was entirely supportive of the Defendant’s assessment that the lesion was a plantar wart. In particular, her description of it and its lack of pigmentation until 24 February provides support for the evidence of the Defendant and Dr Wall as to what they saw.

Dr Cooke

Dr Cooke gave evidence that Dr Hiddins asked him for his opinion on a lesion on the deceased’s foot. Dr Cooke did not think the lesion appeared as what he would have expected a plantar wart to look like after it had had a number of sessions of cryotherapy. It had a moist, fleshy, slightly pearly appearance, maybe half a centimetre in diameter. Dr Cooke said that after lesions have been frozen and patients had also put wart paint on them, they could get a chemical burn appearance. It was difficult to decide in such circumstances how much was a lesion and how much was the side effect of the treatment. He suggested that it be left to settle down for two weeks and then reviewed. Dr Cooke clarified in cross-examination that when he referred to the appearance as “pearly” he was referring to its colour. He did not think it had the characteristics of a plantar wart and that was when he started thinking of alternative explanations. He was shown the photograph of the lesion taken on 29 March 2011 but he said the photograph did not look like what he saw. He said that the lesion in the photograph looked a little darker than he recalled. I thought that Dr Cooke was a measured witness whose evidence should be accepted. There was no suggestion from any party that he might have any responsibility for what transpired. He had no interest to protect. On any view of the evidence he acted appropriately.

Expert evidence

(a) General practitioners

The joint report of the general practitioners showed almost complete agreement between them except as to the extent necessary to record features of the lesion. Two assumptions were put to the experts. The first was that the lesion was dark or black in colour. On that basis the experts agreed that in failing to examine the lesion with magnification, in failing to obtain detailed history of symptoms, in failing to consider ALM as a differential diagnosis, in failing to record the features of a lesion, in diagnosing the lesion as a plantar wart and treating it with cryotherapy, and in advising the deceased to return for review in a couple of weeks’ time, the Defendant did not act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. They were of the view that a majority of peer professionals would refer a patient with a dark or black lesion on the sole of the foot for a further opinion from a specialist or, in the alternative, biopsy the lesion in order to obtain a definitive diagnosis. The second assumption put to them was that the lesion was not dark or black in colour. In those circumstances they agreed that if the lesion was 10mm in diameter as stated, magnification was not required. They agreed that a detailed history regarding the symptoms was very important. They agreed that in circumstances where the lesion looked like a typical plantar wart, where the lesion lies in a typical site for a plantar wart, and where there are no atypical features in the lesion, the majority of peers would not consider ALM as part of the differential diagnosis. However, if there were atypical features or if the site of the lesion on the sole of the foot is not in a typical area in which plantar warts commonly arise, a differential diagnosis which may include ALM should have been considered. They differed on this assumption whether it was important to record the features of the lesion. One doctor thought it was important and the other said that the majority of peers would not record the features when the lesion was typical of a plantar wart and there was no concerning features. The description provided in the assumptions was not considered by that doctor to provide any concerning features. When these doctors gave their evidence concurrently they were asked about the location of the lesion for the purpose of the second alternative assumption put to them, namely, that the lesion was not black or dark in colour. Dr Lynch was of the view that the location identified by the Plaintiff, being at the nexus point of the heel, the outside foot and the arch, was atypical for a plantar wart. Dr Jammal thought it was not atypical because it was relatively within the weight bearing area and that plantar warts can occur anywhere on the sole of the foot. Dr Jammal also thought that the fact that the deceased found the lesion painful swayed him towards the fact that it was still a wart and that the site was not atypical. The matter was not resolved beyond the competing evidence. There was some minor disagreement about whether magnification should have been used. Dr Lynch said that if the lesion was 5mm in size he would apply magnification under good light. Dr Jammal said that if it was 5mm and not dark or black he did not usually need magnification. If it was smaller than that, and depending on the lighting, magnification might be needed. Neither doctor addressed the question in terms of what a reasonably competent general practitioner would do but said only what he would do. Both doctors agreed that if the lesion was about 2mm or the size of a match head and was dark or black, that would be atypical and a diagnosis other than plantar wart would have to be considered. The general practitioners were not called to give evidence before me. Their evidence does not help me determine the correctness or otherwise of the observations of the lesion reported either by the Plaintiff (and the deceased) or by the treating doctors except as to the position of the lesion. I am satisfied that the lesion was on a weight-bearing part of the foot. It was not in an atypical position on the foot to give rise to a suspicion that it may have been other than a plantar wart.

(b) Specialist doctors

At the first trial four specialists gave concurrent evidence. They were Professor Stan McCarthy, a pathologist; Dr Greg Crosland, a dermatologist; Professor William McCarthy, an oncologist and Dr Ian Katz, a pathologist. After the first trial and prior to the second trial those four specialists were joined by Professor Roger Sinclair, a pathologist and Professor Brendan Coventry, a surgical oncologist, in preparing a joint report from a conclave that they held in April 2016. The joint report was dated May 2016 and consisted of some 50 pages of text answering a large number of questions put to the doctors. At the second trial before me those six specialists gave concurrent evidence. Whilst there was considerable agreement amongst the specialists about many matters, differences remained. I found all of their evidence both from the first trial, the joint report and in the evidence they gave before me very helpful. However, it needs to be observed that the doctor least able to be swayed from his own opinions was Professor William McCarthy and, in that sense, he came across both orally in the concurrent evidence before me and on my reading of the concurrent evidence from the first trial and the report of the conclave as something of an advocate for the position of the Plaintiff and the deceased. That is not to deny his very considerable experience and learning in relation to melanomas. Whilst it is obviously the case that none of the specialists could say what the appearance of the lesion was on the deceased’s foot, there were issues about whether what was observed by the general practitioners could reasonably have been a plantar wart. What is undeniable is that when the lesion was biopsied in March 2011 it was a melanoma and when it was excised on 29 March 2011 it had a Breslow thickness of 4.4mm. That itself was an indication that it had been present for some time, although how long that might have been was the subject of some dispute amongst the specialists. A related issue was whether, in addition to having the melanoma the deceased might also have had a plantar wart at the time he was first seen by the Defendant and, perhaps, for some period thereafter. The expert evidence was unanimous in accepting that a plantar wart cannot change into a melanoma because each emerges from different tissue. A fair assessment of the experts’ evidence was that the majority of them could not rule out the possibility that there had been a plantar wart in that position on the deceased’s foot at some time. It is important that the relevant evidence should be set out. The following is the relevant evidence from the first trial.

WITNESS WILLIAM MCCARTHY: We know it wasn't in the bits, in sections which Stan [Professor Stan McCarthy] examined. It was in the tissue around, and this tissue around it was verrucous, means it was wartlike, but that doesn't mean it was a plantar wart because in all the studies I could find about, the verrucous melanoma, the surrounding tissue looks like wart, but it's not a wart. It's a verrucous melanoma, which means the melanoma has elements in it that look a plantar wart, but pathologists normally don't call it plantar wart.

What they do in the many, many cases where this has happened, when they get the final specimen they just say, "This is a verrucous melanoma". They don't say, "This is a verrucous melanoma and a viral wart," so give it one diagnosis and not two.

…

WITNESS STAN MCCARTHY: Well, pathology is an opinion, after a lot of experience, and my opinion on this lesion, on the pattern and what I could see, the lesion was somewhat like a cauliflower, and the epidermis at the edge, plus the fact that there was, the lesion was indented into the underlying dermis, or subcutaneous tissue, the pattern to me was that of a plantar wart, and the melanoma was in the centre of that.

Which occurred first I don't know, but in my opinion there were, those two lesions were present, and I would not have called this a verrucous melanoma. Normally to do that I would like to see the verrucous pattern right through the lesion with the melanoma in the various fronds of the lesion.

HER HONOUR: Dr Crosland?

WITNESS CROSLAND: Your Honour, I think it a question for the pathologist more than for the clinicians, but my understanding of the pathology of the 25 verrucous melanoma and of acral lentiginous melanoma is as Professor Stan McCarthy said, that they are different, so I would concur with Professor Stan McCarthy.

HER HONOUR: Right, thank you.

WITNESS WILLIAM MCCARTHY: Well, I think it's a matter, Stan was saying it's a matter of opinion, that there's the two, shall we say, verrucous melanoma as an element that looks like a plantar wart. Is Stan saying that all the verrucous melanomas are in fact melanomas and plantar warts together, which is not what the literature would say.

As I said before, the pathologists in the literature, when they make the diagnosis of verrucous melanoma they don't say, "This is a plantar wart and a verrucous melanoma". They say, "It's a verrucous melanoma, "which means it's a melanoma which has elements that look like wart, but aren't.

It's part of the reactive phenomenon due to the presence of the melanoma, the verrucous reaction, the hyperkeratosis and acanthosis, which is what Dr Katz said can be reactive to the growth of the melanoma, so not necessarily a plantar wart. It's an independent entity, and you would have to say statistically it's highly unlikely that you would get a melanoma developing in the centre of a plantar wart, and both of these conditions are extremely rare.

HER HONOUR: Can I just perhaps, to take that point up, pose a question to you, Dr Stan McCarthy, which I will also then pose to Dr Katz. Are you saying that all verruca (sic) warts are plantar warts?

WITNESS STAN MCCARTHY: No, I don't think so. There's a large range of viruses which I understand are found in these lesions.

HER HONOUR: And do you agree that it's highly unlikely to find these two things, a plantar wart and a melanoma of this kind together?

WITNESS STAN MCCARTHY: Most unusual in my experience.

HER HONOUR: All right. Do you agree with that, Dr Katz?

WITNESS KATZ: Yeah, I have never seen them together before. Yep, I agree with Professor Stan McCarthy. I mean, I have a very pragmatic view on this –

…

WITNESS STAN MCCARTHY: Well, under the microscope I think there are two side by side. Which came first I don't know. Whether one precipitated the other I don't know, but histologically there appear to be two lesions present to me.

…

WITNESS CROSLAND: …

As I said, as a dermatologist -I am not a pathologist. I did do some derma pathology in my training, but I've always deferred to the pathologists on this question, but my understanding is that a verrucous melanoma is, it's not an entity in its own right. It has very specific features, and I think Professor McCarthy alluded to this before, that verrucous features are found throughout the melanoma, that the whole melanoma looks verrucous, it looks wart like, clinically and under the microscope.

Whereas in this case we have, I believe, an acral lentiginous melanoma with a wart like, or possibly true, wart lesion adjacent to it.

Is that?

HER HONOUR: Yes. Dr Stan McCarthy, do you?

WITNESS STAN MCCARTHY: Yes, I support that. That's the way I feel about it from the histological point of view, that it's an acral lentiginous. A lot of it is modular pattern now melanoma, with an adjacent plantar wart.

HER HONOUR: And, Dr Katz, did you need to comment on that?

WITNESS KATZ: Yes, I agree it is not a, I think the verrucous denomination to this is making everyone treat it as it's not a verrucous melanoma.

WITNESS WILLIAM MCCARTHY: Can I make one comment?

HER HONOUR: Yes.

WITNESS WILLIAM MCCARTHY: The word verrucous means wart like.

HER HONOUR: Yes, I understand that.

WITNESS WILLIAM MCCARTHY: So they do look similar. That's why I disagree, that they can have a verrucous melanoma that looks like a wart plus a melanoma.

…

HER HONOUR: I take it there's nothing that arises from that. Let's move to question 7:

"Could the finding of HPV cells in the tissue excised from the plaintiff’s left foot on 23 March 2011 represent vestigial remnants of a plantar wart."

Let's pose it to Professor Stan McCarthy?

WITNESS S MCCARTHY: My answer is still yes.

HER HONOUR: Dr Crossland (sic)?

WITNESS CROSSLAND (sic): Yes, I believe it could. As Professor McCarthy said where he saw the papilloma virus elements in the cells was on one side, not both sides, not throughout the melanoma, not through both sides. And they were found in - those viral elements were found in an area that under the microscope, when Dr Katz saw it, he commented that you know, these findings are acanthotic, hyperkeratotic and in other words, features of a wart. So yes.

HER HONOUR: Professor McCarthy?

WITNESS W MCCARTHY: The answer to this question rests on the word "could". Could this represent vestigial remnants of a plantar wart? The answer would be yes, but we'd have to go back to the other question where we've all admitted we've never seen the two lesions together.

HER HONOUR: Dr Katz?

WITNESS KATZ: Yes.

HER HONOUR: Anything arise out of that?

WILLIAMS: No your Honour.

…

WITNESS WILLIAM MCCARTHY: My contention, this man had melanoma from a first, a small diagnosis by the Lucas [scil. verroucous?] element around it, no such thing two existing together, so this was a difficult melanoma, probably very difficult to diagnose, then became a very nasty melanoma, somewhere along the track evidence should have been available well before the diagnosis was made.

HER HONOUR: Mr Crossland (sic), anything you wish to add, would you like a summary as Bill McCarthy has done.

It is a matter for you, if you agree it would be useful to know if you disagree, it would be useful to know if something different you wish to say by way of I summary.

WITNESS CROSSLAND (sic): It is a very complicated series of events, multiple consultations, different opinions between the plaintiff and defendant, from the word go it looked like a piece of tar or not pigmented at all. That makes it very difficult.

Three general practitioners saw the lesion and felt it was not that it a was [sic] plantar wart and treated it accordingly. We have some evidence that there may well have been a plantar wart on this man's foot, not just the presence of viral, but the presence of the skin reaction in the area under the microscope. I am not as black and white as Professor William McCarthy.

I think plantar warts are very common. Because it has not been reported doesn't mean it can't happen. Journals are full of articles because it is the first time it has been reported, however unlikely, I am not saying, I am certainly not saying it is impossible. I am saying it is conceivable that the gentleman had a plantar wart in the beginning and that at some time, and we don't know when a melanoma has arisen and that they may not have been, it hasn't arisen in exactly the same site, they are millimetres. I am not saying one replaced the other. I think my report says that, but I think they may have been sequential.

WITNESS STAN MCCARTHY: Two or more lesions together don't surprise me, the fact could have arisen separately and grew larger as they emerge.

To similar effect were some of the answers in the joint report as follows:

Dr Crosland: Prof W. McCarthy has stated in a report to the Court that an amelanotic melanoma will not, as it evolves, develop pigmentation. I agree with this assertion (having been corrected by Prof McCarthy in regard to this issue which revolves around the biology of melanosomes - the bundles of pigment which may form in melanocytes). In other words, this particular lesion could not have been an amelanotic melanoma on 3 September 2009 and become a pigmented melanoma later on.

Professor McCarthy's comment raises the possibility of two distinct lesions being present in this one area. This is rare as is stated above, but it does happen - so-called collision tumours are described in the pathology literature - i.e. two unrelated lesions/tumours occurring side-by-side and intersecting.

…

Prof W. McCarthy: In answer to Prof Coventry's above comment:

To make a diagnosis of a lesion on 3 September as a plantar wart, which is what the implication is all along, nothing else has been offered as a practical alternative, you have to ask why none of us have been able to find a single report in which a plantar wart became a melanoma, which logically means that the diagnosis of plantar wart cannot be made.

But another argument could be offered, and that is that a melanoma occurred next to a plantar wart which is a possible, but highly remote likelihood.

…

Prof. Coventry: Rapidly growing nodular melanomas (both pigmented and non-pigmented) are well reported in the literature. These can evolve over several months. Although less likely, it is not impossible that a rapidly growing pigmented nodular melanoma grew at the site of the repeatedly traumatised lesion (whatever its histology might have been previously - wart or not) of the foot. The assumption that it was always a melanoma from the outset is unable to be conclusively substantiated by clinical and pathological proof, and as such must remain an assumption rather than a known fact.

…

Dr Crosland: The question of the existence of a plantar wart at this site at 11 January 2011 is not resolved. There is some histopathological evidence in the ultimate biopsy that a plantar wart may have been present, co-existing with malignant melanoma or ALM at this site.

All agree, apart from Prof W. McCarthy, with that last comment made by Dr Crosland.

ALL SAY: See also our answers to Q58 and following.

…

Prof S. McCarthy says: The photograph shows a bi-lobed lesion which in my opinion is all the one lesion and accordingly as at 11 February 2011 the likelihood is that it was an ALM only and not a plantar wart. The presence of part of a wart cannot be excluded.

…

Histopathology

58. Is there any evidence:

(a) In medical literature, or

AGREED BY ALL: No one has seen medical literature of co-existent ALM/plantar wart lesions. However, there is medical literature relating to an association between human papilloma virus and melanoma of unspecified type. The human papilloma virus is the cause of clinical warts (Dreau Annals of Surgery, vol 231 no. 5 664 to 671); Miracco Archives of Dermatology, vol 137 No. 6, June 2001; Scheurin Int J Cancer, 1986, 505-510; Takamiyagi Am J Dermatopath 1998 69-73.

Prof W. McCarthy: The Dreau paper does not refer to primary melanoma. All specimens were taken from metastatic lesions, so the paper is not relevant to HPV in primary melanoma.

(b) In your experience and if so specify what that experience was:

of coexistent ALM/plantar wart lesions or any connection between them?

Prof W. McCarthy, Prof Sinclair, Dr Crosland, Dr Katz, Prof S. McCarthy: No.

Professor Coventry however would say:

In my recent experience a patient had received multiple treatments for what was presumed to be a palmar wart which indeed had the appearances of this, and subsequently developed melanoma at that same site. We are currently examining this case further.

In my examination of the literature for this case, I have also had the opportunity to examine the literature in the genesis of melanoma following trauma. I believe this is relevant to this particular case because of the multiple rounds of treatment for the clinically presumed wart present on Mr Coote’s left foot.

In the literature there are multiple case studies of melanoma appearing to arise in relation to single or multiple episodes of trauma, including to that of the extremity. I believe this has some relevance in this case.

Prof W. McCarthy: Professor Coventry cites a recent experience in which a presumed plantar wart developed melanoma at the same site. It would be helpful if the panel could be provided with a photograph and a histological report on this case. Dr Crosland has noted earlier that viral warts on the hands do not look like plantar warts.

Dr Crosland: To clarify the issue with regard to warts on the hands, it is true that warts on the backs of the hands and fingers do not typically resemble plantar warts, but warts on the palmar aspect of the hands usually do resemble plantar warts, presumably because the thickened keratin layers at both sites influence the growth pattern of the wart in the same way.

59. Is the finding in the microscopic report of HPV nuclei in the tissue excised of any significance?

Prof W. McCarthy: No, HPV is known to be present in normal tissue and occasionally in malignant tissue including melanoma.

Dr Crosland: The presence of HPV nuclei in the tissue excised may be of significance as it may indicate, as mentioned by the histopathologists, that a plantar wart was present. Some other histological features of the presence of a plantar wart were also noted. I accept that a plantar wart as such, however, was not definitely diagnosed. (Dr Katz and Prof Coventry and Prof S. McCarthy all agree with this answer).

Prof Sinclair: HPV is a ubiquitous commensal organism. This is based on PCR examination of tissues, swabs and scrapings. The presence of HPV positive nuclei has potentially greater significance since this is associated with lesions, including warts and is only very uncommonly seen in normal tissue. If a wart was present (which I regard as unlikely) it is possible that the wart developed during typical evolution of the melanoma. Wart viruses gain access to the cells of the epidermis through small scratches or other lesions. The development of a wart at the site of obvious trauma is well recognised to occur and is known as the Koebner phenomenon.

Dr Crosland: Professor Sinclair states that "the presence of HPV positive nuclei has potentially great significance since this is associated with lesions, including warts and is only very uncommonly seen in normal tissue." This statement appears to have significant bearing on the answer to Q60 which is yet to be discussed and is at odds with the previous answer from Professor W. McCarthy.

…

62. Could the finding of HPV cells in the said report represent vestigial remnants of a plantar wart? If so:

AGREED BY ALL: The answer to the initial part of the question is "yes".

In the concurrent evidence before me both Professor Stan McCarthy and Dr Sinclair could not exclude the possibility of the previous presence of a wart but they thought it was unlikely. Professor William McCarthy in his reports allowed for the possibility that there may have been a plantar wart present at the site of the melanoma. Although in his report of 28 February 2012 he noted that none of the pathology reports indicated the presence of a plantar wart within or around the melanoma and he noted that he did not find in the literature or in his experience any reports of the coexistence of acral lentiginous melanoma and plantar wart lesions, by the time of his report of 19 March 2014 and thereafter he seemed to accept the possibility that both might have been present. In his report of 19 March 2014 he said:

I should note that Mr Coote’s melanoma could have been partly obscured, if a plantar wart was in fact present and coexisting at the same time adjacent to the lesion. However, in my opinion, it is unlikely that a pigmented melanoma was completely obscured or appeared to have the features of a plantar wart in such way as to conceal pigmentation of the lesion.

…

I should state as an expert witness that when a plantar wart is treated with cryotherapy it could develop some pigmented features, but not solid pigmented features, of the type described by Mr and Mrs Coote.

It may be seen from that excerpt that Professor McCarthy was accepting the evidence of Mr and Mrs Coote but, if that evidence is rejected, a lesion as described by Professor McCarthy was consistent with what Dr Hiddins observed, that is, one with small brown spots.

Later in that same report Professor McCarthy said this:

I am not able to exclude that there could have been plantar wart, and if there was it would likely to account for the feeling of the growth of the lesion in terms of its outward height.

… [A]s the melanoma progresses it is more likely to contain HPV virus in the melanoma. In this case, the HPV virus was reported by Professor Stan McCarthy adjacent to the lesion. Based on that finding, there might have been a plantar wart next to the primary lesion, however, there equally might not have been.

In his report of 1 February 2015 he said it was unlikely (“i.e. less than 50%”) that a plantar wart was in fact present in the same place or adjacent to the melanoma.

Consideration

The difference between the evidence of the Plaintiff and the deceased on the one hand and the four doctors (Dr Cooke less so but not to be put out of consideration) on the other hand is stark. It should be said at the outset that I consider that all of the witnesses were endeavouring to tell the truth in the accounts they gave of the disputed events. The issues in relation to breach have always been about reliability and not honesty. In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

[73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:

…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]:

[140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions.

[141 In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted):

[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The “Palitana”):

“... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility…

[142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).

[75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56].

[76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said:

[71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

[72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

[73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

[74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].

[75] …

[76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

[77] Finally, I should mention an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

For the reasons which follow I am entirely satisfied that at the times the treating doctors saw the lesion on the deceased’s foot from 3 September 2009 up to and including 11 February 2011, it had the appearance of a plantar wart. It was not pigmented and it was certainly not black. Whether there was a melanoma present at those consultations the evidence does not permit a conclusion except to say that the closer one gets to 24 February 2011 the more likely it is that one was present. I do not consider that a melanoma, if present, was discernible by the exercise of reasonable care on the part of the Defendant. The reasons which follow explain why I do not accept the evidence of the deceased and the Plaintiff in their descriptions of the lesion. Senior Counsel for the Plaintiff submitted that the Defendant had no memory of the consultations and in the consideration of whose evidence should be accepted of his evidence and the Plaintiff’s there was only one answer because the Plaintiff did have a memory of what the lesion was like at the time of those consultations. He submitted that the effect of the Defendant’s evidence was that what he saw was a plantar wart because he had so described it in his notes. It was, he submitted, an ipse dixit. Senior Counsel submitted that no store could be placed on the evidence of Dr Wall because Dr Wall’s memory had been shown to be wrong about the one consultation he had with the deceased. It was submitted further that Dr Wall was defensive in his manner of giving evidence concerning his treatment of the deceased. Senior Counsel submitted that the evidence that Dr Hiddins asked the deceased if the lesion was a plantar wart suggested that she did not really recognise it as a plantar wart. He submitted that her expertise was in doubt, noting that she was a very junior doctor. He submitted that there were inconsistencies in her evidence, and he noted that she did not measure the lesion on the first occasion she saw it. On 26 July 2011 solicitors acting for the deceased wrote what must be seen as a letter of demand to the Defendant. The letter said that the solicitors had been instructed that the deceased consulted the Defendant about a melanoma under his left foot in March 2010. In fact, the first such consultation was 3 September 2009. Without being critical of the deceased who, by that stage, was dealing with the metastatic spread of the melanoma, this demonstrated that his recollection for dates and events was at the time poor. In her evidence at the first trial the Plaintiff said a number of times in her evidence that the deceased’s memory for events was bad: see T 57.45, T 76.50 – 77.6 and T 98.22 – 99.2. That poor memory impacts on the deceased’s evidence of how the lesion looked at any particular time. I cannot place a great deal of weight on the deceased’s evidence in that regard. His evidence and that of the Plaintiff was not always consistent. He said, for example, that for six weeks in September and October 2009 the lesion was becoming darker in colour after he sought treatment from the Defendant. The Plaintiff, on the other hand, said that it was always black. The deceased said that the lesion continued to grow at a relatively constant rate so that by May 2010 it was three times the size it was when he first saw it. He drew the size of the lesion at 3 September 2009 and the diameter of the drawing was 2-3mm. He drew the size of the lesion at May 2010 as 10mm. He drew the size of the lesion at September 2010 as 12mm to 13mm. He drew the size of the lesion at 1 January 2011 as 15mm. All of that evidence is inconsistent with the contemporaneous measurements made by Dr Hiddins in January 2011. According to the Plaintiff the lesion was always black, commencing at match head size, and increasing over the 18 month period without ever contracting. In the Plaintiff’s opinion, it did not look like a plantar wart. She had had plantar warts herself and seen them on school children she had taught. On the other hand, each of the Defendant, Dr Wall (I am chiefly having regard to his evidence at the first trial) and Dr Hiddins considered that the lesion looked like a plantar wart. All of them were conscious of the significance of pigmentation in a lesion. If there had been pigmentation each would have followed a different course from simply applying cryotherapy and advising on the use of across-the-counter treatments together with paring of the lesion. I accept that the Plaintiff was an entirely honest witness endeavouring to give evidence as accurately as possible. The issue is, however, whether with the passage of time her evidence can be relied upon in relation to the description of the lesion. The Plaintiff’s evidence must be considered in the light of the contemporaneous evidence associated with Dr Hiddins’ examinations. When Dr Hiddins first measured the lesion on 28 January she measured it at 5mm in diameter and her impression was that it was shrinking or contracting. On 11 February it had increased in size to 10mm. Those matters were entirely inconsistent with the evidence of the Plaintiff that when the deceased saw Dr Hiddins in January it was about the size of a five cent piece. It is also inconsistent with her evidence that the lesion never contracted – “at no time did it ever decrease in size, right from September 2009, or August 2009, right up until 2011 March. I’m emphatic about that” (CB 361); “no, never” (CB 375). For that reason also her evidence that at the time the deceased saw Dr Wall the lesion was about the size of a one cent piece cannot be accepted. The drawings made by the deceased and the Plaintiff suffer from the same problem as their memory of the events. They are the product of persons casting their minds back to what they honestly believe was the case. The more reliable evidence must be the notes of Dr Hiddins which are inconsistent with the drawings representing the true position at the asserted times. The fact that Dr Hiddins’ notes cast doubt upon the evidence of the deceased and the Plaintiff as to the size of the lesion at any given time also casts doubt on their description otherwise of the lesion. So too does the Defendant’s conclusion in his notes that it was a plantar wart for the reasons already given and, to a lesser extent, the evidence and treatment given by Dr Wall. Even Dr Cooke’s evidence concerning the colour of the lesion is inconsistent with the adamant assertion of the Plaintiff that the lesion was always black from the beginning. In my opinion, on an assessment of all of the evidence, what the Defendant was confronted with was a lesion that to all intents and purposes appeared to be a plantar wart. Indeed, it may have been a plantar wart. The evidence does not support the recollection of the deceased and the Plaintiff that the lesion was always black nor that it was the size they have remembered nor that it did not shrink in size whilst being treated by Dr Hiddins. The fact that there was ultimately a melanoma present at or immediately adjoining the location of the lesion seen by the Defendant is the principal matter which provides support for the evidence of the deceased and the Plaintiff. However, I consider that the evidence from the specialist doctors set out above is such as to allow for the possibility that there may have been a plantar wart present or that the appearance of what was present when reasonably investigated by the Defendant was that of a plantar wart. Certainly, even Professor William McCarthy was of the opinion that the lesion was a difficult one to diagnose and was likely at least to have had verrucous features. It is also significant that Dr Cooke did not have a final view about what he saw as late as 24 February 2011. He thought it was atypical of a plantar wart and considered a differential diagnosis some form or tumour, perhaps a melanoma but he was not sure. The experts disagreed about the significance of the finding of human papilloma virus (HPV) nuclei in the tissue excised and biopsied. The experts appeared to agree that HPV could be found in normal skin tissue. Dr Crosland (with whom Professor Stan McCarthy, Professor Coventry and Dr Katz agreed) said in the Joint Report that the presence of the HPV in the tissue may be of some significance as it may indicate that a plantar wart was or had been present. Professor Sinclair thought that the HPV did not exclude the presence of a viral wart. The experts appeared to say that its presence was not diagnostic of a plantar wart. A great deal of time was taken up in the concurrent evidence given before me in examining a number of enlarged photographs of the tissue sample with those acting for the Plaintiff endeavouring to show that the features demonstrated were not diagnostic of a plantar wart. I do not think that the evidence ultimately moved beyond what was said in the Joint Report about this issue which I summarised in the previous paragraph. The experts’ conclusions were by no means determinative of the question whether there was or had been a plantar wart but they were to some extent supportive. It is a further matter to be added into the mix. The only difference of significance between the expert general practitioners was whether the lesion was located on an atypical part of the sole of the foot for a plantar wart. Dr Lynch thought that the location was atypical and that this should have alerted the Defendant to the possibility that the lesion was not a plantar wart. Dr Jammal thought its position was typical for a plantar wart. It is not possible for me to resolve this difference from anything that appears in the transcript of their evidence nor from anything in the joint report apart from observing that it is simply another factor, along with the size, colour and other appearance of the lesion as well as the opinion of the various non-expert doctors which must be taken into account. Nothing said by the specialist doctors assists in resolving that aspect of the matter. One matter of significance, however, is that the pain and the need to limp (according to the deceased’s evidence) points to a weight-bearing part of the foot where a plantar wart would typically appear, as I noted earlier. I am not persuaded, taking all of those things into account, that the position of this lesion on the deceased’s foot should have required a different approach by the Defendant from what he did. Moreover the evidence from the specialists means that I cannot find on the balance of probabilities that a melanoma was present at the time the Defendant saw the lesion although there undoubtedly was a melanoma at a later time, albeit difficult to diagnose because of its appearance. The evidence of Professor Coventry concerning the lesion’s rapid growth is strong evidence supporting this view. The Plaintiff pleads some eleven particulars of negligence. Many of them proceed on the assumption that the lesion was pigmented and was a melanoma, and that the negligence of the Defendant was the failure properly to examine it, diagnose that it was a melanoma and send the deceased off for appropriate treatment of it. My finding is that the lesion had the appearance of a plantar wart and was not pigmented and there was nothing to alert the Defendant to the presence of a melanoma if it was present. Other particulars include failures to examine the lesion with good light and magnification and to take an appropriate history, record it and make proper notes of what the Defendant observed. For the reasons already given, including what the experts, particularly Dr Crosland and Professor William McCarthy, said about the use of a dermatascope I do not consider that the Defendant breached his duty of care in that regard. It is significant also that Dr Hiddins did examine the lesion under lighted magnification and reached the same conclusion as the Defendant that what she was dealing with was a plantar wart. The Defendant’s note-making was inadequate but that was not a precaution that should be taken to prevent a risk of harm (s 5B Civil Liability Act). Nor was it causal of the damage suffered by the deceased or the Plaintiff (s 5D(1)(a) CLA). Given the findings of fact I have made about the appearance of the lesion I consider that the Defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice (s 5O CLA). The general practitioner experts support that conclusion and, as far as the Defendant’s approach to the treatment of a pigmented lesion is concerned (that is, not treat with cryotherapy and refer to a specialist), so did the evidence of Dr Wall and Dr Hiddins. In my opinion, the Defendant did not breach his duty of care to the deceased or to the Plaintiff. I do not accept, however, that the Plaintiff’s case should be characterised as a loss of a chance of a better outcome.

Causation

In the light of my conclusion that no breach is established it is not strictly necessary to consider the issue of causation. However, in deference to the evidence concerning causation and to the parties’ submissions, I should indicate my conclusions about the issue. The nub of the causation enquiry was when metastasis first took place. As the Court of Appeal indicated at [63], the “particular harm” which the Plaintiff needs to show was caused by the Defendant’s breach was the metastasis of the melanoma. Provided the melanoma was able to be removed before it had metastasised the evidence suggested that the deceased would, on balance, have lived a normal life as far as the melanoma was concerned. That is to say, his life expectancy and health would not have been affected by the melanoma. However, the possibility of recurrence could not be ruled out. The Plaintiff had to prove (s 5E CLA) that at the times the deceased saw the Defendant the lesion was a melanoma and that it had not then metastasised. Question 12 in the Joint Report of the specialist experts asked them to assume that the lesion was not dark or black in colour as at 3 September 2009 and then asked on the balance of probabilities whether it was possible to say what the lesion was. All of the experts said that it was not possible to say. However, Professor William McCarthy and Professor Sinclair said that with later knowledge of what the lesion was the lesion could have been an amelanotic melanoma (a melanoma without pigmentation). Professor McCarthy then qualified that to say there was likely to have been subtle pigmentation which confused the clinicians. Subsequent questions asked the same question with respect to each of the later consultations with the Defendant. All of the experts with the exception of Professor William McCarthy and Professor Sinclair said that it was unknown whether the melanoma did exist at any of the dates on which the deceased saw the Defendant even having regard to the advanced stage of the melanoma on its excision in March 2011. Both Professor William McCarthy and Professor Sinclair assessed the likelihood of the melanoma being present from at least 3 September 2009 as 100%. The experts other than Professor William McCarthy and Professor Sinclair all agreed that it became increasingly probable that at some point between 11 January 2011 and the final diagnosis in March 2011 that melanoma was present. As at 29 March 2011 Stage 3 melanoma was diagnosed. The CT scan performed on 7 April 2011 documented no evidence of metastatic disease (Joint report CB 840). All of the specialist experts said that it was not possible to say whether metastatic spread had taken place at any of the dates on which the Defendant saw the deceased. They said it was not possible to say whether or not the lesion had the features described by the Plaintiff and the deceased on the one hand or the features described by the Defendant, Dr Wall and Dr Hiddins on the other hand. However, Professor William McCarthy qualified that statement by saying that the lesion was definitely a melanoma in March 2011, it was a deep melanoma and it had already spread to the lymph nodes. He said that one could extrapolate back from March 2011 and say that prior to that time there was a high probability that the lesion was metastatic and would have spread to other organs the closer one got to March 2011. The experts agreed, with a slight qualification by Professor Coventry, that since the histopathological evidence in March 2011 indicated that the melanoma was locally advanced with nodal involvement and 