Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sarian v Elton [2011] NSWCA 123
• Hearing dates: 1 March 2011
• Decision date: 19 May 2011
• Before: BEAZLEY JA at 1; WHEALY JA at 6; HOEBEN J at 69

Decision

Appeal dismissed.

Appellant to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: NEGLIGENCE - general practitioner administering cortisone injection - development of abscess - medical causation - whether failure by trial judge to properly analyse factual evidence - whether failure by a trial judge to properly analyse expert evidence - extent to which appellate court should interfere with fact finding of trial judge - evidence - difficulties in trial judge assessing competing medical evidence when reports tendered and oral evidence not given.
• Legislation Cited: Civil Liability Act 2002 ss 5B, 5O; Uniform Civil Procedure Rules 2005 (UCPR), r 51.53
• Cases Cited: Archibald v Byron Shire Council [2003] 129 LGERA 311; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 per Mason P; Biogen Inc v Medeva Plc (1997) RPC 1 at 45 per Lord Hoffman; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 AJLR 842; 62 ALR 53; Chambers v Jobling (1986) 7 NSWLR 1 at 27 per Mahoney JA; Dearman v Deaman (1908) 7 CLR 549 per Isaacs J; Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA; Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321; Papadopoulos v NSW Insurance Ministerial Corporation [1999] NSWCA 116; Powell v Streatham Manor Nursing Home [1935] AC 243 at 266 - 268; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666 - 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278, 279 per McHugh JA; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174, (2004) 60 NSWLR 127; Williams v The Minister for Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [164] - [167]
• Category: Principal judgment
• Parties: Dr Paul Sarian - Applicant; Alaine Elton - Opponent
• Representation: Counsel; Mr R Cavanagh SC - Applicant; Mr RN O'Neill - Opponent; Solicitors; Norton Rose Australia - Applicant; McDonnell Schroder - Opponent
• File Number(s): 2010/321032

Decision under appeal

• Date of Decision: 2010-09-06 00:00:00
• Before: Delaney DCJ
• File Number(s): 2008/52

Judgment

1 BEAZLEY JA : I agree with the reasons of Whealy JA and with his Honour's orders. I would only add that this Court is constrained by the Uniform Civil Procedure Rules 2005 (UCPR), r 51.53 not to order a new trial unless it appears to the Court that some substantial miscarriage has been occasioned by the primary decision.

2 Apart from one or two remarks of the trial judge that were not well expressed, it was clearly open to his Honour to prefer the evidence of the respondent's expert witness.

3 The particular remark about which some concern was expressed in the course of argument was his Honour's statement, at [32] of his reasons, that:

"Despite the view of Associate Professor Eisen that the bacteria arose from a gastrointestinal source there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November."

4 Read literally, his Honour's comment is not accurate. However, as Whealy JA has stated, the reasons of a trial judge have to be read fairly. In the context of his Honour's judgment as a whole, it is apparent that he meant there was no evidence of signs or symptoms of the infection that the respondent contracted coming from the gastrointestinal tract. For that reason, there was no evidence to support Associate Professor Eisen's view.

5 His Honour's further comment as to the weight of the evidence must also be read in context. Dr Iredell, in his careful opinion, maintained that the probable source of the infection was contamination from the skin. Associate Professor Eisen accepted that possibility. Dr Iredell's opinion was also predicated on the plaintiff's description of the manner in which the injection was given. Associate Professor Eisen only considered that possibility at a later point. Although the matter could have been better expressed, his Honour's comment does not warrant appellate intervention. No miscarriage has been occasioned by the primary decision.

6 WHEALY JA : I have had the opportunity of reading the draft judgment of Hoeben J in this matter. I regret to say that, with all due respect, I find myself unable to agree with Hoeben J's conclusion that the appeal should be allowed. Indeed, there are a number of aspects of Honour's judgment with which I regret to say I am unable to agree.

7 This appeal raises important questions as to the basis on which an appellate court may interfere with, or pass adverse comment upon, the decision of a trial judge, after a fully contested hearing. Those central questions are:

(1) When, and to what extent, an appellate court will overturn, or be critical of, the conclusions of an experienced primary judge on the central factual dispute between the parties, especially where the resolution of that dispute is based upon the primary judge's assessment of demeanour.

(2) When, and to what extent, an appellate court will make adverse assumptions about, or depart from, the manner in which a case has been conducted by the parties in the court below.

(3) Whether the decision of the primary judge actually reveals the errors sought to be relied on by the appellant. In that regard, there is a need for an appellate court to read the primary judge's decision fairly.

8 This was a simple case. The plaintiff saw Dr Sarian in his rooms on 25 th November 2005. There was no dispute that he administered a cortisone injection to her right elbow on that afternoon. Following the injection, the plaintiff began to feel weakness and pain in the muscle, below the area where the injection had been given. She reported this to the defendant on 12 th December 2005. She was urgently referred to a specialist and admitted to Nepean Hospital. There was no doubt that she was infected with the bacteria known as streptococcus milleri ("SM"). She remained in hospital for some time, and it was not contested that the wound took some months to heal, and left a scar. Following these events, her right arm was weaker than before.

9 The plaintiff's medical expert, a highly qualified bacteriologist, referred to the plaintiff's version of what had happened in the surgery when the injection was given. It was his opinion, based on this version, that clean gloves worn by the defendant touched skin which had not been disinfected. The gloves would have become contaminated, and would have secondarily contaminated the skin at the site of the injection with bacteria from the unprepared skin. The needle passed through an area which was no longer disinfected, and therefore at much greater risk of inducing the infection which developed.

10 The defendant gave evidence which vigorously denied that he had given the injection in the way the plaintiff described. If his description were accepted, it would have been virtually impossible for the infection to have been caused as a result of an inappropriate procedure. That was accepted on both sides. The critical issue was whether the injection had been given in the way described by the plaintiff, or whether it had been the "clean technique" described by the defendant.

11 The facts and findings of the primary judge are fully set out by Hoeben J in his judgment. It is perfectly apparent from those findings that the primary judge accepted the plaintiff, and rejected the defendant, in relation to their contesting descriptions as to the manner in which the injection had been given. I agree with Hoeben J, that his Honour's findings that Ms Elton's evidence should be accepted, is, in the circumstances, beyond challenge. However, I part company with Hoeben J in relation to his statement (at [55]) that the primary judge's findings "as to the credibility of Dr Sarian should not be given the weight normally accorded to the findings of a trial judge". Indeed, to make the criticisms that have been made of the primary judge in relation to his treatment of Dr Sarian, runs the risk that this court could legitimately be accused of misusing its own role in the disposition of the appeal.

The need for appellate restraint

12 The principles concerning the need for appellate restraint are well known. In Fox v Percy (2003) 214 CLR 118 at 128, it was held by Gleeson CJ, Gummow and Kirby JJ that a finding of fact by a trial judge, based on the credibility of the witness, may only be set aside on appeal where "incontrovertible facts or uncontested testimony demonstrate that the judge's conclusion was erroneous", or where it is concluded that "the decision of the trial judge was glaringly improbably or contrary to compelling inferences in the case". McHugh J held at 147 that an appellate court would be entitled to set aside a trial judge's finding based expressly or inferentially on demeanour, if there was something that pointed decisively, and not merely persuasively, to error on the part of the judge in acting on his or her impressions of a witness or witnesses.

13 In his decision at 139 - 140, McHugh J referred to "a valuable passage" in the judgment of Isaacs J in Dearman v Dearman (1908) 7 CLR 549. It is worth repeating:

So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal . The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box . A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal . So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before , the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below , and is necessary to a just conclusion" [emphasis added].

14 In his dissenting judgment in Chambers v Jobling (1986) 7 NSWLR 1 at 27, Mahoney JA referred to the decision of the High Court of Australia concerning the need for care and restraint in appellate intervention mentioned in Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 AJLR 842; 62 ALR 53. Mahoney JA said at page 26 line F - 27 line B:

The learned President, in his judgment, has expressed concern with the principle which has been established for the guidance of appellate courts in their review of findings of fact: Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; 62 ALR 53, and what he sees as the restrictive effects of it. He has suggested that the principle is based upon a false premise of fact and that this is increasingly so seen by trial judges. These matters, if correct, are of considerable importance. They affect the admittedly large sums at issue in this proceeding. They are of importance in the proper administration of justice in the courts and in particular in the decision of cases by this Court.

I have the misfortune to take, in relation to these matters, a view which differs from that taken by my brethren. The principle affirmed in the Brunskill case is, in my opinion, one which accords with good sense. It is undoubtedly old. It was formulated, at least in its modern form, in 1876: see The Glannibanta (1876) 1 PD 283 at 287; and has its origin in decisions of the Privy Council given before that date: see Paterson v Paterson (at 219). But it is proper, in accordance with the current fashion, to consider whether being old it is now wrong.

The principle has, during the past 100 years, had the support of judges of some eminence. One may instance the Earl of Halsbury, Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 75; Lord Sumner, SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Lord Atkin and Lord Wright, Powell v Streatham Manor Nursing Home [1935] AC 243 at 255, 264; Lord Thankerton, Watt or Thomas v Thomas [1947] AC 484 at 487; Lord Wilberforce: Re D (An Infant) (Adoption: Parent's Consent) [1977] AC 602 at 626; Lord Bridge of Harwich: Whitehouse v Jordan [1981] 1 WLR 246 at 269; [1981] 1 All ER 267 at 286; and Lord Scarman, Maynard v West Midlands Regional Health Authority (at 636, 637). In Australia, the principle was examined and adopted by the High Court in 1908, Dearman v Dearman (1908) 7 CLR 549 at 561, and has been accepted and applied consistently since that time: see the judgment of Dixon CJ and Kitto J in Paterson v Paterson (at 219). It was recently affirmed by a unanimous decision of the High Court in Brunskill v Sovereign Marine & General Insurance Co Ltd (at 844; 56).

Mahoney JA also referred in his discussion to the speech of Lord Wright in Powell v Streatham Manor Nursing Home [1935] AC 243 at 266-268 :

... I think that it is difficult, if not impossible, to seek to lay down any precise rule to solve the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself 'in a permanent position of disadvantage as against the trial judge'. In truth, it is not desirable, in my opinion, to do more than state, as I think Lord Sumner was stating, principles which will guide the appellate Court in the majority of such cases. The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate Court is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on evidence, any judge who has had experience of trying cases with witnesses cannot fail to realize the truth of what Lord Sumner says: as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will form his impression from the whole personality of the witness: he can allow for the nervous witness, standing up in a crowded Court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable [emphasis added].

15 Although his Honour was in dissent, I suggest that his concluding remarks would be regarded today as of some value, and in accordance with the Fox v Percy principles. At 29, his Honour said:

I am aware of no significant movement among trial judges to deny the importance of their role in this regard. As I have said, the question is not whether the impressions of trial judges as to what witnesses meant or the credibility of them may be mistaken: of course they may. The question is whether they may be of such importance, as I think they may, and right sufficiently often, as I think they may, to make it inappropriate for an appellate judge to fail to give proper weight to the advantage which the trial judge had. Experienced trial judges are, in my experience, conscious of their role in this regard and of the effect of the present principle and therefore, where their impression of a witness has not affected their conclusions as to the facts, have properly so indicated. This, I think, is done not to indicate that they may not be in a position of advantage but to record that, in the particular instance, they were not.

16 In relation to the broader issue (whether and in what circumstance an appellate court may differ from a primary judge where there were alternate findings available below) Heydon JA in Williams v The Minister for Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137] quoted with approval from Biogen Inc v Medeva Plc (1997) RPC 1 at 45 per Lord Hoffman:

The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vrit] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved.

17 The primary judge gave five reasons for rejecting Dr Sarian. I am far from convinced there is any justification for the criticisms that Hoeben J has expressed in relation to each of these findings of fact, based as they each are, essentially, on demeanour aspects of the defendant's evidence. The finding that Dr Sarian was "unusually defensive" must be a finding based on demeanour. It is not necessarily something that would spring out from a reading of the cold pages of the transcript. Similarly, with the second complaint, namely that Dr Sarian was "anxious to give his version of events, irrespective of the nature of the questions put to him". This also is really a demeanour point. It accords precisely with the observations in the passage from Dearman v Dearman , which I have earlier cited. For example, I have, for my part, looked carefully at the transcript. There do seem to me to be passages where the primary judge's criticism was entirely justified. Whether I think so or not is, perhaps, beside to the point. The finding was clearly one made based on demeanour and a close observation of the witness. In my opinion, this court should not disturb it unless it is contrary to "incontrovertible facts or compelling inferences or glaringly improbable". This is simply not the position.

18 The next two reasons given by the primary judge focussed on whether the doctor had "reconstructed" the events of the day of the injection and that "he had no independent recollection, instead relying entirely on his general practice". These were findings available to him. A reading of the transcript shows that Dr Sarian claimed that he had "a good recollection" of the giving of the injection. On the other hand, it was squarely put to him by counsel for the plaintiff that this was not the case. It is true, as Hoeben J has observed, that there was one aspect of the visit that Dr Sarian appears to have remembered quite clearly, at least when he examined his notes a fortnight later. This was the matter mentioned in his note that reminded him that he had intended to refer the plaintiff to a specialist if the pain in the elbow did not improve. However, there is no material in this note that would have informed Dr Sarian as to the precise technique he had adopted in giving the November injection, apart from, of course, his normal way of doing it. In fact, he agreed that he would have had no reason to remember or think about the injection he gave the plaintiff over the two weeks following it (T122, lines 30-35).

19 It is always necessary to read a primary judge's decision fairly. When speaking of the defendant's "reconstructed" version of events, I took the primary judge to be referring to the defendant's concession that the first time he had examined his own thoughts on the subject was some two weeks later, when it became apparent to him that he might be sued for negligence. A professional defendant in that difficult situation might well be inclined, in the absence of a specific recollection, to assume legitimately that he had given the injection by adopting the technique most favourable to his own position. That would be entirely understandable. I did not understand the primary judge's comments in this regard to do more than stress that Dr Sarian had, in fact, no independent recollection of the technique he had used, apart from his reliance on his general practice. That comment was open to him, it was an available finding, and it was not one that this court should disturb, absent a clear error on the primary judge's part.

20 A second point the judge made about Dr Sarian's notes was that there was nothing in the notes that would have helped him recall the technique he had adopted in carrying out the injection. It was in that respect that the notes were of no help to him and deficient in detail in that sense. When the primary judge's decision is read fairly, there is ample support for the findings he made on these matters.

21 Hoeben J is critical of the final reason given by the primary judge for rejecting Dr Sarian's evidence. His Honour had said:

The defendant runs an extremely busy practice, seeing up to 25 to 30 patients in an afternoon and could not in my opinion be expected to recall the precise circumstances in which he gave this injection and there is nothing that occurred on the day in question to alert him to any problem.

22 For my part, I would consider that this was an entirely appropriate finding. As I have said earlier, Dr Sarian spoke of his concern when, on 12 th December 2005, he first realised that the plaintiff had developed a serious problem. He described this as "an unique event in his life". It was at this point, for the first time, that he went back to his notes. He said that he then "set about looking at these notes" and endeavoured to "refresh his memory" about what had happened. But, as I have said, there was nothing in those notes that would have assisted him as to the precise nature of the technique he had adopted on 25 th November. True it is that the event had occurred only a fortnight earlier, but there was simply nothing in the notes that could help him in that regard. The fact that his practice was an extremely busy one, and that he was accustomed to deal with a considerable number of patients within a relatively confined period of time, was surely an appropriate matter for the primary judge to consider.

23 Once again, I think it is a matter of reading the primary judge's findings fairly. His Honour gave five succinctly stated reasons why it was he did not accept Dr Sarian's evidence in preference to that of the plaintiff. Those concise reasons were essentially based on demeanour, supported as they were by the facts as they had emerged. In my opinion, there is simply no basis for overturning his Honour's findings in this regard, and to do so would be contrary to the well accepted principles of appellate restraint in such a situation.

The medical issues - causation

24 The determination of this appeal must start therefore with an acceptance of his Honour's finding that the plaintiff was to be accepted, and the defendant to be rejected, in relation to the central and critical issue of fact, namely the manner in which the injection had been given. That being so, it can be accepted that the injection was given in a way that supported the expert opinion stated by Professor Iredell, that it had been causative, in a factual sense, of the infection being transmitted via the injection and as a consequence of inappropriate technique. There was, however, expert medical evidence to the contrary and it needed to be assessed.

25 I turn then to the medical evidence. Hoeben J has mentioned a particular problem which arose in the trial. In my opinion, the primary judge was placed in a very difficult position by the parties' decision not to call any of the doctors. This imposed the burden on the trial judge of coming to grips with the various arguments and counter-arguments, where he did not have the usual benefit of assessing the experts. There is no doubt that expert evidence, within appropriate limitations, can be determined on issues that involve demeanour and assessment of reliability. It is not uncommon, for example, to find that experts, so called, do not always adhere to the professional detachment that is required of them. Judicial experience shows that experts have on occasions taken upon themselves the colourful mantle of advocacy in supporting the position of their client. Where a primary judge has found this to happen, the appellate court, which has not had the benefit of seeing and hearing the evidence of the witnesses, must, within the confines of the reasoning in Fox v Percy , yield to the findings of the trial judge, based as they will have been on a close appraisal of the witness. As I say, these principles apply to the evidence of an expert in the same way they apply to the evidence of a lay person: Wiki v Atlantis Relocation (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at 136 at [60] - [61] per Ipp JA (with whom Bryson JA and Stein AJA agreed); Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [49] - [52] per Giles JA, with whom Ipp and Basten JJA agreed; see also Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [164] - [167]. Here, however, the primary judge had to make an assessment "on the papers". That plainly posed difficulties for him. Nevertheless, his task was to endeavour to reconcile and grapple with the competing views as best he could in the circumstances.

26 The central medical question raised on this appeal is whether the primary judge fell into error in determining, as best he could in the difficult circumstances he confronted, the issues raised by the medical reports. Hoeben J has examined these reports thoroughly and carefully. However, I will, for my own purposes, endeavour to summarise the issues arising from the reports.

27 The first report is from Professor Iredell. His opinion is succinctly stated on page 1 of his report of 21 st October 2008:

Summary of opinion

1. Satisfactory sterile technique was not followed and this placed the patient at greatly increased risk of injection site abscess.

2. The pathogen is one which could have been inoculated at the time of the injection and the history/time course etc is entirely consistent with this.

28 Professor Iredell based his opinion on the history given to him by the plaintiff. It is important to note that the primary judge accepted the plaintiff's version and rejected the version given by the defendant.

29 Professor Iredell's opinion was that, consistent with the description given by the plaintiff, the clean gloves touched skin which had not been disinfected, and that this contamination would have secondarily contaminated the skin at the site of the injection, with bacteria from the unprepared skin. The history of pain at the time of the injection suggested that there was some deep trauma at the time. This would have made the site "vulnerable to seeding by bacteria". Thus it was that the plaintiff's case was supported by an expert opinion of high calibre "that inappropriate technique was likely to have been the sole contributor to the outcome". In this first opinion, Professor Iredell recognised that it could be argued that the traumatised site had been seeded by the bacteria during the course of tooth brushing, or even dental problems (such as gingivitis or decay or dentures). However, he thought that the bacteria was capable of causing infection by being introduced at the time of the injection, and he did not regard it as a surprising sole cause in the context of an injection abscess. On balance, he considered that the timing of the infection was consistent with the infection having been introduced at the time of injection.

30 The defendant based his case on the description he gave as to the manner in which the injection had been given. This version was forwarded by his lawyers to Associate Professor Damon Eisen, a highly regarded specialist in infectious diseases. On the basis of the version of events provided by Dr Sarian, the specialist physician said:

Associate Professor Iredell's report 21 st October 2008 relies on information provided by Mrs Elton and suggests that the technique used by Dr Sarian was not a non-touch technique that maintained asepsis. This is contrary to the information included in your letter of instruction... This information outlines Dr Sarian's approach to injection with local anaesthetic and anti-inflammatory agents... He maintains a no-touch technique having palpated the region and planned the injection and following appropriate decontamination using a combination of Betadine and alcohol swabs... In this regard I feel that the statement from Dr Sarian of appropriate aseptic and non-touch technique indicates that the performance of the injection was appropriate and did not subject Mrs Elton to an increase to unnecessary risk of local infection. Thus I disagree with the opinions of Associate Professor Iredell's report in this matter and do not believe the injection technique was seriously flawed or substandard.

It can be seen immediately that this opinion was based essentially upon acceptance of the version given to the solicitors by Dr Sarian. It must be the case that the primary judge's finding that the injection was given in the way that the plaintiff described it (and not in the manner described by the defendant) becomes very important in the context of the medical issues.

31 However, Professor Eisen did raise a secondary issue. In his discussion of the manner in which the subject bacteria might have caused the abscess, he noted that it was "not a routine skin commensal". Infections from the bacteria, more often than not, spread from the pharynx and gastrointestinal tract predominantly. He opined that, where skin and soft tissue infections had been recognized to be due to the bacteria, they had been shown to mostly occur in injecting drug users. This led him to say:

From the above, it can be seen that the most likely source of staphylococcus milleri that caused the skin and muscle infection in Mrs Elton's case was from the gastrointestinal tract. It is conceivable but less likely that the (bacteria) was colonising Mrs Elton's skin and was introduced to the muscles of the right forearm at the time of injection of anti-inflammatory and local anaesthetic agents on 25 th November 2005.

Professor Eisen noted that the infection of the right forearm muscles occurred "at least a week" after the injection of the anti-inflammatory and local anaesthetic by Dr Sarian on 25 th November 2005. This led him to say:

It appears highly likely that there is a direct relationship between the injection of anti-inflammatory and local anaesthetic into the region of the lateral epicondyle of the right elbow on 25 th November 2005 and subsequent intramuscular abscess in the same region that became symptomatic on 12 th December 2005.

32 Hoeben J considered that the quotation of this paragraph in the primary judge's decision (at 29) suggests that his Honour had misunderstood or failed to appreciate what was said in the balance of the relevant paragraph in Professor Eisen's report. I will return to this later. It is true that Professor Eisen, in the same paragraph, immediately went on to acknowledge that it was possible that the bacteria was directly implanted into the muscles and soft tissue of the right elbow at the time of the local injection. However, he thought this would have required "the extremely unusual circumstance of skin colonisation of the arm with streptococcus milleri". He thought it more likely that a bacteremia with streptococcus milleri "arose from the gastrointestinal source and localised to the region of pre-existing inflammation in the right elbow that was exacerbated by local trauma caused by the injection of anti-inflammatory/local anaesthetic into the area".

33 So, it can be seen that Professor Eisen's report really raised two issues. The principal basis for the opinion he held that led him to disagree with Professor Iredell's opinion was that, based on the version given by Dr Sarian, the injection technique had not been seriously flawed or substandard as suggested. Secondly, he raised the issue that the implantation of the bacteria by inoculation into the muscles and soft tissues of the right elbow would have been unusual. It was more likely, he thought, that the infection simply arose from a gastrointestinal source and became localised to the right elbow region at the time of the giving of the injection. In truth, however, this second opinion was really based on nothing more than his view that the bacteria was not "a routine skin commensal". At this stage of his reports to the defendant, there was in fact no medical evidence he could point to (concerning the plaintiff herself) that bore directly on the second issue he had raised. It was simply a matter of saying that the plaintiff's case rested upon a causation issue that was somewhat unusual. There is more than a hint in the report that his opinions were perhaps flavoured by his acceptance of the version that had been given by Dr Sarian of the technique that had been used in giving the injection.

34 Professor Iredell was asked to comment briefly on the report from Professor Eisen. He provided a one-paragraph report on 19 th May 2009:

As stated both by myself and Dr Eisen, streptococcus milleri is a pyogenic organism which is not a typical skin commensal and therefore an unusual implantation infection. It is not inconceivable that the organism was not directly speciated but even were this the case, it does not go to the essential problem. The events I recounted were those elicited directly from the patient in interview and a number of the issues appear to be the conflict in recall of events between the patient and the practitioner, which I have no special capacity to resolve.

35 It may be observed that Professor Iredell, unlike some expert witnesses, did not enter the arena as an advocate. He was careful to indicate that the resolution of the conflict between the plaintiff and the defendant (as to the method in which the injection had been given) was essentially a matter for resolution by the court. I took Professor Iredell to be saying that, had the injection been given in the manner described by the plaintiff (which the primary judge ultimately accepted), he remained of the opinion expressed in his October 2008 report.

36 It appears that the plaintiff's solicitors requested further information from Professor Iredell in November 2009. He was asked to comment on each of the opinions that had been put forward by Professor Eisen.

37 The first matter about which Professor Iredell was required to comment was that which he had already addressed in his earlier report, namely the crucial question as to whether a clean procedure had been followed or not. Professor Iredell repeated that he could not contribute further to this issue. He fairly agreed that, if the site had not been "carelessly contaminated", it would have been "extremely unlikely" that direct inoculation was the explanation. The second matter he was asked to comment on was the issue earlier discussed by both himself and Professor Eisen, namely whether the plaintiff's condition was "an inoculation infection". As to this, Professor Iredell said:

Strep milleri is a rare cause of blood culture contamination... and is a common coloniser of oropharynx, GIT and genitourinary tract. It is an unusual pathogen in an inoculation infection but the only alternative is that the site was "seeded" via the blood stream from an oropharyngeal or gastrointestinal source. I do not believe the lady had any significant evidence of disease that would be consistent with this , although subclinical disease is perfectly plausible and even normal tooth brushing may result in low-level transient bacteraemias, which could potentially have seeded the site of trauma/bleeding.

If it is established that the procedure was carelessly performed then contamination by direct inoculation is, in my opinion, more likely than seeding from a distant source, given the apparent absence of GIT or oropharyngeal disease . Professor Eisen suggested the latter is more likely and the fact is that either contention is a valid explanation. Forced to make a choice, I favour the former and Professor Eisen favours the latter, it seems [emphasis added].

38 Professor Iredell expressed an opinion about a third matter. He said that, in his opinion, a sterile approach to such an injection would be widely accepted to be the correct and usual procedure before, after and including 25 th November 2005. This was an opinion which put him into conflict with another doctor who had given a report for the defendant, a general practitioner, Dr Norman Walsh.

39 The solicitors for the defendant immediately sought a supplementary report from Professor Eisen. This was provided on 10 th December 2009. For the first time, Professor Eisen was provided with the plaintiff's version of events. The solicitors asked him to take this version into account, and to make alternative assumptions based upon those events, as opposed to the version of events provided by Dr Sarian, and which had been considered by Professor Eisen in his first report. Secondly, he was informed that, in fact, more than two weeks elapsed from Friday 25 th November to Monday 12 th December 2005, before the plaintiff had complained of symptoms of infection. Finally, he was asked to provide an opinion as to which was the more likely source of the pathogen, ie bacteraemia or inoculation, which was identified as a source of the plaintiff's infection in her right elbow in December 2005.

40 As to the first matter, Professor Eisen said:

If the plaintiff's version of events as set out in the briefing letter to Professor Iredell are accurate, this does not alter my opinion as expressed in... my written report. The fundamental issue that guides my assessment is that streptococcus milleri is not a member of the normal skin flora and would not have been present on the plaintiff's arm unless it was contaminated with saliva. This is not indicated by the plaintiff's version of events.

Professor Eisen added that he had performed a search of the medical literature and failed to find any evidence of streptococcus milleri causing soft tissue infection, complicating medical administration of therapy for soft tissue strain. He said that the literature rather indicated that infection following soft tissue injection was "an uncommon condition". He repeated his previous view, that the medical literature indicated to him that streptococcus milleri is not a cause of implantation injury, aside from where oral flora were injected into the soft tissue, such as by injecting drug use practices, bite injury or other accidental inoculation with material overtly infected with saliva. He added:-

This supports the contention that the more likely source of streptococcus milleri infection in the plaintiff's case in her right elbow in December 2005 is from bacteraemic spread from a gastrointestinal source.

41 Next, Professor Eisen considered the timing issue. He thought that the condition might well have asserted itself within one week of its development, although he accepted that the presence of the long acting steroid could be expected to alter the local manifestations of infection to some extent.

42 Professor Iredell was asked to provide a final report. This he did on 23 rd February 2010. He was required to make a further elaboration with regard to streptococcus milleri generally. Secondly, he was to examine afresh the likely mechanism by which Ms Elton had been infected by streptococcus milleri. Thirdly, he was asked to comment on Professor Eisen's latest report generally, and to address the timing issue.

43 On the first issue, he said:

The human body, like any ecosystem, provides a range of niches inhabited by a diverse range of bacterial populations, all of which are preferential locations to which they have adapted. Some bacteria are extremely intolerant and will only live in very specific environments while others are relatively flexible in terms of temperature, oxygen and nutritional requirements. Streptococcus milleri is one of the more flexible bacteria in this regard... Members of this group of bacteria occasionally do cause invasive pyogenic (puss-forming) infections, being among the most common pathogens in brain and liver abscesses. They are particularly adapted to binding human tissue elements found in wounds and blood clots... and possess a sugar-based capsule that inhibits their being taken up and destroyed by white blood cells and other human tissue defence cells.

44 On the second issue, Professor Iredell said:

The streptococcus milleri group of organisms are not normal skin flora, it may be expected to survive on skin for at least hours if smeared onto it by an indifferent fingertip after first touching the face or mouth for example. They are well known colonisers of the peritoneum and an armpit or elbow crease might provide supportive moisture and warmth. They can survive on a nutritious surface in a laboratory for days in room air at or near human body temperature.

Formation of abscesses under the skin by streptococcus milleri is unremarkable. Several examples of multiple such infections in the same area of the body, suggesting spread across the skin and subsequent inoculation through it, were described in at least one symptomatic study of infections due to these bacteria (source supplied).

It can be seen that Professor Iredell had addressed two of the matters raised by Professor Eisen. First, whether the bacteria could survive on the skin for a period of time, and secondly whether the medical literature addressed the situation he had described in his first report. Thus, clear answers were given to each of these issues that directly answered Professor Eisen's opinions.

45 In relation to the timing issue, Professor Iredell said that a very small number of bacteria, seeded into an area with a suppressed local immune response (as in this instance), might well be delayed in presentation with symptoms. He added:

It is also quite conceivable that the steroid injection delayed the presentation of the infection. I think a two week period between a small inoculum and presentation to a doctor with an obvious abscess is quite reasonable.

46 Professor Iredell then considered a pivotal matter raised by Professor Eisen, namely whether streptococcus milleri was likely to have arisen from the gastrointestinal tract. He thought that this was "an unlikely explanation in the absence of any symptoms or signs". This was the opinion he had expressed in his earlier reports. His final conclusion was as follows:

On balance, I believe that inoculation of the site through the skin is most likely if the skin was not clean and/or had been touched with a finger or glove that was not clean. The alternative explanation of blood stream seeding is more likely if sterile technique was followed. Either explanation is credible in either circumstance, and neither scenario can be excluded.

47 So that is where the expert material from the infectious diseases specialists stood at the time of trial. Professor Iredell's opinion remained that, if the procedure had been carelessly performed (as Ms Elton's version suggested), then contamination by direct inoculation was more likely than seeding from a distant source. This was particularly so, given the apparent absence of GIT or oropharyngeal disease. There was no clinical evidence of symptoms or signs. In relation to the timing issue, Professor Iredell thought the two-week period between injection and manifestation of symptoms was reasonable. Professor Eisen did not specifically disagree with this, although he would have expected it to manifest itself within a week, or perhaps a little longer.

48 Importantly, Professor Eisen had said that, even accepting the plaintiff's version, he remained of the opinion that distant seeding was the likely cause. This was fundamentally because streptococcus milleri was not a member of the normal skin flora, and, in his view, would not have been present on the plaintiff's arm unless it was contaminated with saliva. He was also guided by his view that infection through inoculation was uncommon, and that the literature suggested it was uncommon. Professor Iredell, on the other hand, was able to refer to literature which supported his position. Moreover, he suggested that the streptococcus milleri group of organisms might be expected to survive on skin for at least hours, in the circumstances he described. Importantly, his view was that the absence of any symptoms or signs in the patient spoke against seeding from a distant source. Contamination by direct inoculation was, in his view, much more likely if it could be established that the procedure had been carelessly performed.

49 I have not, in this analysis, gone into the detail of Dr Walsh's opinions. He was a general practitioner, and not a specialist in infectious diseases. Moreover, his report, as I understand the nature of the case, was confined to the issue of the defence provided by section 5O of the Civil Liability Act 2002 . This is not to say that some of the broader opinions he expressed might not have had a relevance on the liability issues, but it does not appear that this was the basis on which his evidence was used. For example, Dr Walsh introduced a new concept. This was his suggestion that "the administration of injections without prior skin disinfection is increasingly practised in the community". He referred to literature that suggested that "skin disinfection produced no measurable reduction in subsequent infection". It does not appear, however, that these new matters impacted significantly on the issues for trial.

50 Mr O'Neill of counsel, who appeared for the plaintiff, both below and in the appeal, assured this court that, save for damages, the case was essentially conducted by focussing on the particular issue as to the manner in which the injection had been given by Dr Sarian. In addition, the defendant had agreed in evidence that his practice was to use a "no-touch" technique when giving injections precisely so as to avoid infection. Certainly, the primary judge himself appears to have proceeded on the footing that Dr Walsh's evidence had been tendered only on the section 5O point. Mr O'Neill submitted that Dr Walsh's peer practice opinions proceeded on the basis that the injection had been given in the way Dr Sarian said it had been given. Had that technique been followed, it would have clearly passed muster, according to Dr Walsh, with the general practices of other general practitioners.

51 Dr Walsh's opinions were examined by the primary judge at paragraphs [66] to [71], and again at [76] and [85]. The primary judge rejected the defence under section 5O. In the course of his examination of Dr Walsh's evidence, he said:

Whilst I did not consider Dr Walsh's opinion not to be genuinely held by him on the basis of his long experience as a general practitioner, I consider that the comment he made that the plaintiff must have been mistaken showed some preference to one version over the other and he therefore cannot be accepted as an objective commentator.

The defendant relied on section 5O of the Civil Liability Act and relied on the evidence of Dr Walsh to establish that when he administered the cortisone injection to the plaintiff he provided a professional service in a manner that was widely accepted by peer professional opinion as competent professional practice.

In the light of my view that Dr Walsh has to some extent entered into the arena I decline to accept his evidence as demonstrating that the defendant's procedure would be widely accepted as competent professional practice.

52 It needs to be borne in mind that Dr Walsh's opinion was, in any event, based on Dr Sarian's version of the manner in which the injection had been given (White Book 244 and 247) and not on the version given by the plaintiff.

53 Hoeben J considers that the primary judge's treatment of the evidence of Dr Walsh was not justified. I am unable to agree with this. I would respectfully differ and conclude that his Honour was fully justified in the criticism he made of Dr Walsh. Indeed, I would assert that his Honour was rather mild in relation to his observations about the manner in which Dr Walsh "entered the arena". He not only entered it, but he did so with some degree of gladiatorial aplomb and determination. The first matter requiring comment is the matter referred to by the primary judge in his findings. Dr Walsh had said:

The plaintiff's recall of events as detailed in the letter of instructions to Professor Iredell (infectious disease specialist) from the plaintiff's solicitor dated 30 th July 2008 makes no mention of this two stage disinfection technique, despite describing the technique employed in great detail. It is possible that the plaintiff, in failing to recollect this aspect of the disinfection procedure, may have become confused and concluded that palpation of the injection site occurred following the final application of disinfectant, rather than before or between the two stage disinfection process. Similarly, when Dr Sarian's gloves contacted the skin on the margins of the disinfected area to stabilise it while performing a "no touch technique" injection, this may have appeared to breach aseptic protocols, when in fact the procedure was performed appropriately.

54 Hoeben J defends Dr Walsh from the primary judge's finding, by pointing out that his Honour was incorrect in stating that "the comment he made that the plaintiff must have been mistaken shows some preference of one version over the other and he therefore cannot be accepted as an objective commentator". Hoeben J said Dr Walsh spoke of this as no more than a possibility. In my opinion, this is a matter of fine distinction. It does not save Dr Walsh from the criticism which has been made against him. It was no business of his, as an expert witness. He had no qualification to explore speculative possibilities as to why the plaintiff gave her statement in the way she did.

55 There were, however, many other areas in Dr Walsh's report where similar comments could be made. For example, at White Book 247, Dr Walsh says:

The letter dated 30 th July 2008 from the plaintiff's solicitor to Professor Iredell provided a number of assumptions based on the plaintiff's recall of events during the consultation on 25 th November 2005. She recalls that Dr Sarian put gloves on both hands before first palpating the site of the injection, this is not consistent with Dr Sarian's version of events. She recalls the area was swabbed with alcohol only, which is inconsistent with Dr Sarian's usual practice... She recalls that after applying the disinfectant Dr Sarian palpated the elbow area and adjacent skin which had not been disinfected. Dr Sarian states that after disinfection of the skin, he uses his left thumb and index finger to hold the skin taut as the needle is introduced through the skin. He uses a "no touch technique".

Dr Walsh has surely stepped outside the confines of professional expert detachment, and is acting in this passage as an advocate in his client's cause.

56 Similarly, at White Book 248, he says of Professor Iredell:

Professor Iredell appears to have no relevant experience in general practice and has not quoted any literature to support his contention that Dr Sarian's "inappropriate" technique diverged significantly from that of his peers.

At White Book 246 and 247, Dr Walsh sets out each of the allegations of negligence in the pleadings. He then offers comments as to why each of the allegations cannot be sustained. Each of these responses was based entirely on Dr Sarian's version, and made no allowance at all for the fact that his evidence might not be accepted (as indeed it was not) and that the plaintiff's version might be preferred. Quite apart from this observation, it was surely the task of the defendant's lawyers to make these points, not an expert asked to provide guidance as to peer practice.

57 Finally, reference might be made to White Book 249. Dr Walsh had this to say:

If employing the "no touch technique", it is irrelevant whether the operator's fingers come into contact with the disinfected or non-disinfected skin at this point. It is likely that the plaintiff, upon hearing some time later the hospital RMO's opinion that her soft tissue infection was caused by deficient injection technique, recalled incorrectly that palpation followed this infection rather than preceding it, as is Dr Sarian's usual practice.

58 This suggestion was not one that was made to the plaintiff at trial. It is a clear example of an expert stepping well outside the confines of his area of expertise to act as an advocate. In my opinion, the primary judge was amply justified in the conclusion he made concerning Dr Walsh's evidence.

Primary judge's response to the medical evidence

59 Hoeben J has extracted all of the relevant passages in a comprehensive fashion. As I read the extensive judgment at first instance, the material passages occur in two separate sequences. The first sequence concerns an examination of the evidence of Professors Iredell and Eisen. Particular attention in the appeal focussed on paragraphs 29 to 33. They have been set out in Hoeben J's judgment, but, for my purposes, I will repeat them here:

29. Associate Professor Eisen said:

"It appears highly likely that there is a direct relationship between the injection of anti inflammatory and local anaesthetic into the region of the latero epicondyle of the right elbow on 25 November 2005 and subsequent intra muscular abscess in the same region that became symptomatic around 12 December 2005."

30. However, notwithstanding these findings he then said, without clear explanation, that he thought it was more likely that the bacteria arose from a gastrointestinal source and localised to the region of the pre-existing inflammation.

31. Associate Professor Eisen's opinion incorporated information provided to him by the defendant's solicitors.

32. Neither Dr Iredell or Associate Professor Eisen gave oral evidence. Despite the view of Associate Professor Eisen that the bacteria arose from a gastrointestinal source there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November.

33. I find on the balance of probabilities that the infection was caused when the defendant gave the plaintiff a cortisone injection on 25 November 2005. I reach this conclusion because of the opinions of both Associate Professor Eisen and Dr Iredell. I am also satisfied on the evidence of the plaintiff of the contemporaneous nature of the development of the condition to the injection itself.

60 The principal issue at trial was ultimately considered and determined by the primary judge at paragraphs 83 to 86. I shall set these findings out in full:

83. I have found that the plaintiff's recollection of 25 November should be preferred to those of the defendant where those recollections conflict. I accept that the plaintiff's version is more likely. I observed the plaintiff carefully as she gave her evidence and I am satisfied that I can rely upon her recollection.

84. It was submitted on behalf of the plaintiff that the defendant's breach of duty was touching an area that had not been swabbed or disinfected and that in doing so the defendant transmitted into the injection site bacteria which caused the infection streptococcus milleri. It was submitted that the defendant thereby failed to adhere to his usual procedure.

85. I find that the evidence of the plaintiff was consistent with the letter of instruction sent to Dr Iredell. Therefore, the opinion of Dr Iredell was given on the basis of accepted facts. I accept that the infection occurred when the injection was being administered. I am satisfied that as submitted by counsel for the plaintiff the defendant did not use the material in exhibit 3 described as a bluey. I am also satisfied that after he swabbed the area he proposed to inject he felt around that area, including an area that had not been cleaned. In my opinion, on the probabilities he did not use his usual procedure to keep the area where the injection was to be given properly disinfected. In this respect, he breached his duty of care.

86. In view of the findings I have made as to the evidence of Dr Walsh the defence under section 5O is rejected. The risk could have been avoided by the use of reasonable care. There will be a verdict for the plaintiff on liability.

61 His Honour then stated that he was satisfied that, but for the failure of the defendant to properly disinfect the area where the injection was to be inserted, the plaintiff would not have suffered the infection (section 5B Civil Liability Act 2002 ).

62 The principal question, as I see it, is whether the primary judge was factually wrong in dismissing the opinion of Professor Eisen on the basis that "there was no medical evidence that supported this finding" and "that the weight of the medical evidence supported" Professor Iredell's opinion. More broadly stated, the issue is whether his Honour failed to analyse properly the competing opinions of the infectious disease specialists and, if possible, reach a conclusion on the basis of that analysis. In both these respects, Hoeben J believes that error has been demonstrated.

63 In the examination of this issue it is, as always, necessary to read the primary judge's decision fairly. It is important not to read passages in isolation, or to read the decision selectively: Dobler per Giles JA at [71].

64 There could have, of course, been no error in his Honour's finding that the infection was caused at the time the defendant gave the cortisone injection to the plaintiff on 25 th November 2005. Both experts were, as the primary judge noted, in agreement on this point. But the central medical issue was whether the infection arrived by blood stream seeding, or contamination as a direct consequence of faulty technique in giving the injection. Contrary to Hoeben J's views on this point, I consider that the primary judge did not misunderstand or overlook the fact that this was the issue raised in Professor Eisen's reports. He expressly recognised it as such. Although his Honour's conclusions on this central medical issue are expressed sparingly, a fair reading of his decision is that he intended to convey the proposition that he accepted Professor Iredell and rejected Professor Eisen, because the latter could not point to any symptoms or signs exhibited by the plaintiff so as to justify the blood stream seeding conclusion Professor Eisen favoured. After all, that was the view that had been expressed by the plaintiff's expert. As well, the primary judge, it seems to me, intended to convey, when the judgment is read as a whole, that his acceptance of the plaintiff's version (and his rejection of the defendant's version) persuaded him that it was much more likely, on the probabilities, that Professor Iredell was right in selecting faulty technique as the direct cause of the contamination. After all, the very event had happened (according to the factual findings) that Professor Iredell thought most convincing on the causation issue.

65 In addition, the primary judge, although he did not expressly say so, may have intended to convey the proposition that Professor Eisen's statement in his report of 10 th December 2009 - "if the plaintiff's version as set out in the briefing letter to Professor Iredell is accurate, this does not alter my opinion" - was not sufficient to outweigh the matters relied on by Professor Iredell. After all, Professor Eisen had said no more in his second report than that "SM is not a member of the normal skin flora and would not have been present on the plaintiff's arm unless it was contaminated with saliva. This is not indicated by the plaintiff's version of events". Professor Iredell adequately responded to this, and to other matters, in his last report of February 2010. As I say, it is likely that the primary judge thought that this response was a complete answer to the earlier opinion expressed by the defendant's expert. For my part, I think there was sufficient material in Professor Iredell's reports to enable the primary judge to accept the opinions he expressed on causation in preference to those stated by Professor Eisen. To that extent, I am in disagreement with Hoeben J. It was, of course, necessary for the primary judge to state that this was the situation and to give reasons which exposed why he came to the view he did.

66 The question which arises in the present matter may be simply stated: whether the reasons given by the primary judge, on the medical issues, were sufficiently adequate in that regard ( Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 per Mason P; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278, 279 per McHugh JA).

67 The extent and scope of a trial judge's duty to give reasons depends upon the circumstances of the individual case ( Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). It is no doubt, to some extent, a valid criticism of the trial judge's reasons on the medical issue that they were sparingly expressed. The central issue in the trial, however, was the method of giving the injection. The primary judge made it quite clear why it was that he accepted the plaintiff in this regard, and why it was he rejected the defendant. The medical issue fell to be largely determined as a consequence of this finding. As I have said, the plaintiff's expert thought that the more likely cause of the abscess was direct contamination if the injection had been given in the absence of a clean technique. The defendant's expert thought that remote seeding was more likely because infection by inoculation was uncommon. The plaintiff's expert said, however, that there would need to be evidence of some symptoms or signs, if Professor Eisen's views were to prevail. It was against this background that the primary judge held "there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November". I accept that more could have been said, but, on the other hand, the defendant could be in no doubt as to why it was he lost this case. The proper administration of justice requires that reasons be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and secondly, that will not, effectively, frustrate the losing party's right of appeal ( Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666 - 667). The reasons given by the primary judge in this case, although briefly stated, were sufficient, in my opinion, so as to satisfy these criteria. In my opinion, the verdict in favour of the plaintiff should stand.

68 The orders which I propose are as follows:

(1) That the appeal be dismissed;

(2) That the appellant pay the respondent's costs of the appeal.

69 HOEBEN J:

It is with considerable regret that I am obliged to differ from the conclusions arrived at by Beazley and Whealy JJA in this appeal. My reasons for so differing are as follows.

Subject matter of appeal

70 At all material times the applicant (Dr Sarian) was the opponent's (Ms Elton) treating general practitioner. At that time Dr Sarian had been a general practitioner for over 30 years. His doctor/patient relationship with Ms Elton had existed since 2002.

71 Ms Elton was a married woman born in 1964. Having raised her children, she re-entered the workforce in 1990 and thereafter worked as a cleaner and a shop assistant, sometimes on a fulltime basis and sometimes on a part-time basis. Through no fault of her own, she lost her job in August 2005 and thereafter was looking for work.

72 By way of further background, Ms Elton had injured her neck in a motor vehicle accident in 1987 and in 2005 was continuing to experience some symptoms from that injury. She had also suffered from arthritis in various parts of her body for many years and from time to time required medical treatment to reduce the pain and discomfort caused by that condition.

73 On 31 August 2005 she consulted Dr Sarian complaining of a painful right elbow. Dr Sarian injected her right elbow with cortisone and the pain in the elbow subsequently reduced.

74 By 25 November 2005 the pain in the right elbow had returned and was adversely affecting Ms Elton's ability to obtain employment. On that date she again attended Dr Sarian at which time he administered a further cortisone injection. Ms Elton said that over the next few days the pain in her right elbow began to subside but towards the end of the second week after the injection, she began to feel weakness and pain in the muscle below the area where the injection had been given.

75 Ms Elton said that the pain in her right arm worsened and it became red and swollen, as well as extremely painful and weak. On 12 December 2005 she attended Dr Sarian's surgery. After examining her arm Dr Sarian referred her to a specialist, Dr Preketes, who admitted her to Nepean Hospital the same day.

76 A number of tests were carried out at the hospital as a result of which an abscess was discovered and drained. A culture taken from the abscess identified the bacteria as Streptococcus Milleri (SM). Ms Elton remained in hospital until 22 December. She said that the wound took months to heal and left a scar. It was her evidence that following this procedure her right arm was weaker than before.

77 Ms Elton brought proceedings against Dr Sarian in negligence in the District Court. She sought damages for the physical and psychological effects of the infection which she said that she contracted when he injected her right arm with Cortisone on 25 November 2005.

78 The trial commenced before Delaney DCJ on 24 May and concluded on 25 May 2010. The only oral evidence was that of Ms Elton and Dr Sarian. In Ms Elton's case reports were tendered from Professor Iredell, who was a specialist in infectious diseases and a microbiologist. In Dr Sarian's case reports were tendered from Dr Walsh, a general practitioner, and from Professor Eisen, a specialist in infectious diseases and a microbiologist. None of the doctors gave oral evidence in the trial.

79 On 6 September 2010 his Honour published his reasons for judgment. The orders made by his Honour were:

(i) Verdict and judgment for Ms Elton against Dr Sarian in the sum of $74,649.03.

(ii) Dr Sarian to pay the respondent's costs of the proceedings.

80 Dr Sarian seeks leave to appeal against his Honour's judgment as to liability. The application for leave to appeal and the appeal were heard together.

Proceedings in District Court

81 His Honour identified the liability issues as follows.

(a) The cause of the infection.

(b) Breach of duty of care.

82 In relation to medical causation, his Honour summarised the evidence of Professor Iredell:

"25 Dr Iredell went on to say that the description given by the plaintiff was that clean gloves touched skin which had not been disinfected and would therefore themselves be contaminated and would have secondarily contaminated the skin at the site of the injection with bacteria from the unprepared skin. The needle would then have passed through an area which was no longer disinfected and therefore at much greater risk of introducing infection."

83 In respect of Professor Eisen his Honour said:

"29 Associate Professor Eisen said:

"It appears highly likely that there is a direct relationship between the injection of anti-inflammatory and local anaesthetic into the region of the latero epicondyle of the right elbow on 25 November 2005 and subsequent intra-muscular abscess in the same region that became symptomatic around 12 December 2005."

30 However, notwithstanding these findings he then said, without clear explanation, that he thought it was more likely that the bacteria arose from a gastrointestinal source and localised to the region of the pre-existing inflammation.

31 Associate Professor Eisen's opinions incorporate information provided to him by the defendant's solicitors.

32 Neither Dr Iredell nor Associate Professor Eisen gave oral evidence. Despite the view of Associate Professor Eisen that the bacteria arose from a gastrointestinal source there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November."

84 His Honour expressed his conclusion on the issue of medical causation as follows:

"33 I find on the balance of probabilities that the infection was caused when the defendant gave the plaintiff a Cortisone injection on 25 November 2005. I reach this conclusion because of the opinions of both Associate Professor Eisen and Dr Iredell and I am also satisfied on the evidence of the plaintiff of the contemporaneous nature of the development of the condition to the injection itself."

85 In relation to the second question - breach of duty of care - his Honour reviewed the oral evidence. The principal difference between the evidence given by Ms Elton and that of Dr Sarian related to how the injection was administered on 25 November. Ms Elton said that Dr Sarian had first swabbed the area around her elbow with an alcohol swab and then wearing gloves, had felt outside the area which had been swabbed and then touched the swabbed area as he administered the injection.

86 His Honour characterised the evidence of Ms Elton as follows:

"41 The plaintiff was, as I said, vigorously cross-examined about her recollection of the procedure she described above and the instructions she had given to her solicitors.

42 Notwithstanding the searching cross-examination the plaintiff maintained her version of events given in the evidence in chief and I am satisfied that she has an honest belief that this version is accurate."

87 Dr Sarian's evidence was that he palpated the area where he was going to inject using the tip of his index finger. He said that he was looking for appropriate soft tissue in which to insert the needle. He said that when performing the palpation procedure, he was not wearing gloves. He found a safe area to inject and he moved away to prepare the injection.

88 After having prepared the injection, Dr Sarian said that he put a pad on Ms Elton's abdomen and placed on it the items he was going to use and then put his gloves on. He then swabbed the site of the injection with a Betadine swab followed by an alcohol swab. Next he inserted the needle into the site of the injection and emptied the balance of the syringe.

89 Dr Sarian was cross-examined to suggest that there was nothing about the procedure that he performed on 25 November that would allow him to recall with any precision how he had administered the Cortisone injection, other than to rely upon the normal way he would administer injections. It was suggested to him that in giving evidence he had no independent recollection of what had happened but was merely reconstructing.

90 In comparing the evidence of Ms Elton and Dr Sarian his Honour preferred that of Ms Elton. He set out his reasons as follows:

"72 Not surprisingly, the recollections of the plaintiff and the defendant about the procedure adopted when the Cortisone injection was administered were different. This is understandable, having regard to the period of time that has elapsed since the event. As I said previously, I find that the plaintiff has a belief that her recollection is accurate. Although it was suggested that initially she had no reason to focus on how the injection was administered, she said that contrary to the earlier injection this one was "very painful". In addition, within a short period of time she began to experience unexpected symptoms which I am satisfied focused her mind on how the procedure was carried out. Despite the extensive cross-examination I found the plaintiff to be unshaken and accept her as not only truthful but more likely than not accurate as to how the injection was administered on 25 November 2005. Where there is a difference between her recollection and that of the defendant I prefer the plaintiff.

73 I prefer the evidence of the plaintiff for a number of reasons:

(a) I found the defendant to be unusually defensive.

(b) He was anxious to give his version of events irrespective of the nature of the questions put to him.

(c) I find that he has reconstructed the events of 25 November and has no independent recollection, relying entirely on his general practice.

(d) His notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded.

(e) The defendant runs an extremely busy practice, seeing up to 25 to 30 patients in an afternoon and could not in my opinion be expected to recall the precise circumstances in which he gave this injection when there was nothing that occurred on the day in question to alert him to any problem.

...

83 I have found that the plaintiff's recollections of 25 November should be preferred to those of the defendant where those recollections conflict. I accept that the plaintiff's version is more likely. I observed the plaintiff carefully as she gave her evidence and I am satisfied that I can rely upon her recollection."

91 On the question of breach of duty Dr Sarian relied upon two reports of Dr Norman Walsh, a general practitioner.

92 In relation to Dr Walsh his Honour said:

"67 Dr Walsh said:

"It is important to use a two stage technique to avoid the plaintiff having an unsightly brown iodine stain which is often resistant to removal for over a week."

Dr Walsh said the plaintiff's recall of events as detailed in the letter of instruction to Dr Iredell makes no mention of his two stage disinfection technique despite describing the technique employed in great detail. It is possible that the plaintiff in failing to recollect this aspect of the disinfection procedure may have become confused and concluded that palpation of the injection site occurred following the final application of disinfectant rather than before or between the two stage disinfection process. Dr Walsh said that infections after soft tissue injections are a rare event and administration of injections without prior skin disinfection is increasingly practised in the community.

68 Dr Walsh said there was no objective evidence provided in support of Dr Iredell's opinion that inappropriate technique, as opposed to misadventure, caused the plaintiff's infection. He said that if the no-touch technique was employed, it was irrelevant whether or not the operator's fingers contacted the disinfected or non-disinfected skin.

69 Whilst I did not consider Dr Walsh's opinion not to be genuinely held by him on the basis of his long experience as a general practitioner, I consider that the comment he made that the plaintiff must have been mistaken shows some preference for one version over the other and he therefore cannot be accepted as an objective commentator.

...

71 In the light of my view that Dr Walsh has to some extent entered into the arena, I decline to accept his evidence as demonstrating that the defendant's procedure would be widely accepted as competent professional practice."

93 On the basis of this review of the evidence, his Honour found that breach of duty had been established:

"76 Dr Walsh was the only general practitioner to provide a medico-legal report. I have already commented on my view of his report. Nothing in his report suggests to me, and I did not understand the defendant to assert that it was so, that he should not have properly disinfected the area where the needle was to be inserted.

77 In some cases the fact of the infection of itself may be sufficient to establish liability and to justify the conclusion that the defendant was negligent and his negligence caused any injury suffered. This is because the defendant had the sole control of the injection procedure and in the opinion of both Dr Iredell and Associate Professor Eisen the infection occurred at the time the needle was being injected.

...

79 In this case, it was not suggested that the risk of infection was not foreseeable. Infection is a well known consequence of a failure to disinfect before breaking the skin. The risk was not insignificant, and in my opinion a reasonable person in the position of the defendant would have taken precautions to disinfect the area of the injection and indeed the defendant asserted that he had done so.

80 I am satisfied that if that care was not taken harm would probably occur to the patient and as the evidence in this case shows, that harm was likely to be serious. As administering the injection was under the control of the defendant, he had the burden of taking precautions to avoid the risk of harm."

94 His Honour rejected the defence under 5O of the Civil Liability Act 2002 (CLA):

"86 In view of the findings I have made as to the evidence of Dr Walsh, the defence under s5O is rejected. The risk could have been avoided by the use of reasonable care. There will be a verdict for the plaintiff on liability."

95 In relation to causation his Honour said:

"87 I am satisfied that but for the failure of the defendant to properly disinfect the area where the injection was to be inserted, the plaintiff would not have suffered the infection (S5D Civil Liability Act)".

The appeal

96 Dr Sarian makes three challenges to his Honour's judgment. The first challenges his Honour's fact finding with particular emphasis on the way in which his Honour dealt with his evidence. Dr Sarian submits that his Honour did not properly analyse his evidence, but merely set out an unsubstantiated set of conclusions.

97 The second challenge relates to his Honour's characterisation of the evidence of Professor Eisen. Dr Sarian submits that his Honour misunderstood the effect of Professor Eisen's evidence and having done so, failed to analyse it or otherwise take it into account when reaching his decision. He submits that had his Honour taken the report into account, Ms Elton could not have succeeded on the issue of medical causation.

98 The third challenge relates to his Honour's refusal to take into account the report of Dr Walsh. Dr Sarian submits that there was no proper basis for his Honour refusing to have regard to the contents of that report. He submits that had his Honour taken that report into account, Ms Elton could not have established breach of duty.

Factual finding as to how injection administered

99 Dr Sarian submits that his Honour erred in preferring the evidence of Ms Elton as to the methodology adopted by him when administering the injection. Dr Sarian submits that his Honour misused the advantage which he had as trial judge in the fact-finding process. He submits that his Honour made general findings based on demeanour but did not look at the effect of the evidence as a whole and did not analyse the evidence in any detail.

100 In relation to Ms Elton, Dr Sarian accepts that his Honour was entitled, on the basis of her demeanour and on the basis of how she reacted to cross-examination, to find that she was honest in her evidence. Dr Sarian, however, challenges what he says was the failure on the part of his Honour to assess by reference to her evidence, her reliability as a witness.

101 Dr Sarian submits that an examination of the whole of the evidence of Ms Elton showed that except for the day of the injection, ie 25 November 2005, she had a very poor recollection of events. She could not remember detail of previous attendances at the surgery, in particular that of 31 August 2005 nor could she remember detail of the attendance on 12 December 2005. He submits that other examples are her attendances on her solicitor, the circumstances surrounding the preparation of her statement about what happened on 25 November 2005, and the details of her attendance at the Nepean Hospital. In the case of the attendance on the solicitors and the preparation of the statement, these events occurred in 2008 yet Ms Elton's recollection of them was poor.

102 On the same issue, Dr Sarian refers to the fact that Ms Elton could not remember the symptoms in her right arm which led to her attending the surgery on 25 November 2005 (WB109.18-.36, WB110.3-.28). Dr Sarian submits that there was an inherent improbability in Ms Elton having such a clear recollection of the precise steps taken by him to administer the injection but having such a poor recollection of other matters, not only on that day but during more recent times when she attended her solicitors and Professor Iredell. He submits that this improbability is not adequately explained by the proposition advanced by his Honour (but not by Ms Elton) that the reason she remembered the details of the injection on 25 November 2005 was because it was so painful.

103 Dr Sarian submits that his Honour's basis for rejecting his evidence (see [21] hereof) was expressed in general terms without reference to specific evidence and did not accord with the evidence actually given. Dr Sarian submits that implicit in his Honour's conclusion at [73] of his judgment is a finding that he was not telling the truth. Dr Sarian submits that where a finding of that kind is made, the evidence which forms its basis and the reasoning behind it, should be stated.

Consideration

104 The relevant principles have been set out in a number of cases. In Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 the plurality said:

"28 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29 That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."

105 In Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 Giles JA with whom Ipp and Basten JJA agreed said:

"49 The appeal is by way of rehearing ( Supreme Court Act 1970, s 75A(5)), but there are well-established constraints on the Court's approach.

50 In findings of fact resting on credibility considerations the trial judge is generally in an advantageous position, although the findings can be found to be erroneous if contrary to incontrovertible facts or compelling inferences or "glaringly improbable": ... The trial judge's advantageous position includes "considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced": NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367; (2005) 223 ALR 171 at [86] per Kirby J; see also Jones v R (1997) 191 CLR 439 at 467... These principles generally apply to the evidence of experts: ... Rational examination and analysis are called for, but "[a] judge may be persuaded by a combination of the material force of an expert's views together with the way in which the evidence was given". ...

51 The judge was in a far better position than this Court, restricted to the cold print of the transcript, to assess the weight to be given to the opinions of the general practitioners and the cardiologists as they gave concurrent evidence before him; an exercise in which the judge participated by inquiry and clarification.

52 Further, it is necessary that the appellant show factual error, and it is not enough to show that an alternative finding was available. Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ASCR 504 (Giles JA, Mason P and Beazley JA agreeing) cited at [17] the judgment of Santow JA, with whom Meagher JA and Beazley JA agreed, in Jones v Bradley [2003] NSWCA 81 at [113] - [116] -

"113 ... In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant " bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge's conclusions ought to be reversed ". Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) FCA 184; (1992) 35 FCR 359 at 369 where it was held:

'... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.'""

106 Applying those principles to this issue, it is clear that if the evidence of Ms Elton were looked at in isolation Dr Sarian's challenge to his Honour's findings could not succeed. The challenge goes no further than to establish that alternate findings were available to his Honour not that his Honour was obliged to make such findings.

107 However, his Honour's findings in relation to Ms Elton cannot be looked at in isolation. They have to be considered with his reasons for rejecting the evidence of Dr Sarian. It is in relation to this part of his Honour reasoning that Dr Sarian's submissions have more force.

108 At [73] of his judgment his Honour set out five reasons for rejecting Dr Sarian's evidence. The first of these was that his Honour found him to be "unusually" defensive. Unfortunately his Honour did not identify the evidence on which that finding was based nor did his Honour provide an example of that sort of evidence. Having read Dr Sarian's evidence, both in chief and in cross-examination, I have not found any of it to be particularly defensive and certainly not "unusually" defensive. While appreciating the advantages the trial judge had in seeing Dr Sarian give his evidence, I have not been able to find any basis in the transcript for that finding.

109 Another reason for rejecting Dr Sarian's evidence was that "he was anxious to give his version of events irrespective of the nature of the questions put to him". Once again his Honour did not identify or give an example of the evidence which led to that conclusion. I have been unable to find such an example in the evidence of Dr Sarian.

110 Judges are familiar with witnesses who provide unresponsive answers, usually of an exculpatory kind. There is nothing of that flavour in the evidence of Dr Sarian.

111 The next two reasons for rejecting Dr Sarian's evidence can be looked at together: his Honour's finding that "he has reconstructed the events of 25 November and has no independent recollection relying entirely on his general practice" and "his notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded".

112 Except for the reference to deficiencies in his notes, his Honour did not otherwise identify the evidence which led to those findings.

113 Dr Sarian said that when he gave Ms Elton a Cortisone injection on 31 August 2005 he told her that he would not give her any more such injections. This was confirmed by his notes. When she attended the surgery on 25 November he gave evidence of the following conversation:

"Q. Was there a further discussion with her about the injection?

A. Yes sir when I thought I mentioned to her that, you know, I told you last time that you know, I was not going to give you any more injections because you've had so many, and she was quite distressed.

Q. Did she say anything to you?

A. Yes sir she said "Please Doc", to the best of my recollection, this is exactly what she said, because these words made a significant impact on my decision to give the injection or not, she said "I'm going to start a new job, I have to work, I need the money", and this made a very significant impact on my decision to give the injection later. And then I decided to clinically examine to find out how bad the situation was, and she seemed to be in a very considerable amount of pain, the sort of pain that I did not think that she could carry on doing her usual work as a cleaner. And then I decided to give the injection." (WB152.37)

"Q. When you say you had a look at the elbow or you examined the elbow was that after you'd put gloves on or done a quick wash or anything like that?

A. No, no, no without a wash, she was sitting there, I was examining her, and my clinical examination demonstrated that she was in, as I said, a lot of pain and I had to make a decision. She was in pain and she had to work with Christmas coming and I could help her, but on the other hand I was concerned about too many injections." (WB153.13)

114 Dr Sarian gave evidence as to what happened after he had given the injection on 25 November 2005:

"Q. And what happened next?

A. I said "Look, as soon as the medication starts working the pain will soon disappear" and I also told her then I said "Look this is the last injection, I'm not going to give you any more because you've had far too many" and I said "If this pain comes back again I'll have to consider referring you to an orthopaedic specialist Dr Maniam", then the pain started gradually subsiding and ..." (WB159.3).

115 On a number of occasions Dr Sarian said that he did not palpate Ms Elton's arm while wearing gloves before the injection "Because I cannot feel through the glove". (WB142.24, 154.21, 156.1, 159.42)

116 When asked why there was no record in his notes for 25 November 2005 about his conversations with Ms Elton, Dr Sarian said that there was and referred to the note which recorded:

"? To see Dr Maniam"

Dr Sarian said that the note indicated to him that if the pain did not respond to the Cortisone injection on this occasion, he would refer Ms Elton to an orthopaedic surgeon. It was common ground that Dr Maniam was an orthopaedic surgeon. (WB171.32, 172.4, 173.32, 184.35, 190.25, 190.40)

117 When challenged in cross-examination as to why he had a clear memory about what happened on 25 November 2005, Dr Sarian said that he was so concerned about Ms Elton's presentation on 12 December 2005 that he referred back to his notes of the previous consultations and turned his mind specifically to what had occurred on 25 November 2005. He said that even though two weeks had passed between 25 November and 12 December, he was able to remember what had happened because 25 November was the last time he had administered an injection to anyone. (WB163.1, 183.6)

118 The above evidence and the references to other evidence are consistent with direct recollection. The reason why Dr Sarian had an actual recollection was explained by him, ie he had turned his mind to what had happened on the occasion of the injection within two weeks of it happening. His evidence about Ms Elton's inability to work at that time because of her right arm was consistent with her own evidence. His evidence concerning an inability to palpate while wearing latex gloves was never challenged in cross-examination.

119 Far from there being "many omissions" from his notes, those notes provided an appropriate trigger for his recollection of what had happened. When one compares his notes of 25 November with those of 31 August, they are consistent. An examination of his clinical notes showed that Dr Sarian only recorded matters which were relevant to treatment. At no time did he set out or note conversations. I do not regard his non-recording of conversations concerning searches for work in clinical notes as an "omission" from those notes. Nor would I expect such conversations to be recorded in clinical notes.

120 The notation "? to see Dr Maniam" is fully consistent with a warning by Dr Sarian to Ms Elton that if her right arm did not respond to this injection, he would have to refer her to an orthopaedic surgeon. It is difficult to see what more should have been included in his clinical notes.

121 Accordingly, I have concluded that his Honour's finding that Dr Sarian "reconstructed the events of 25 November and had no independent recollection relying entirely on his general practice" and that "his notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded" is not supported by the evidence.

122 Similarly, his Honour's final reason for rejecting Dr Sarian's evidence is not supported by the evidence. In many situations it would be open to conclude that it was improbable that a busy doctor seeing between 25 and 30 patients in an afternoon would remember in any detail a particular consultation some five years later. That, however, was not the evidence in this case. Dr Sarian's evidence was that two weeks after the consultation on 25 November he had occasion to turn his mind to what had occurred. His recollection was assisted by his notes and because this was the last occasion upon which he had administered an injection. This was a plausible explanation. If his Honour did not believe it, he should have explained why.

123 As Dr Sarian submitted, implicit in his Honour's findings in relation to his evidence is that he was not telling the truth in a number of respects. This is a very serious finding which has implications with respect to the professional integrity of Dr Sarian. It is not a finding which should be made on the basis of impression alone. More was required. At the very least, there should have been some reference to and analysis of that evidence of Dr Sarian which provided the basis for these findings.

124 I am forced to conclude that in his treatment of the evidence of Dr Sarian, his Honour has misused his position of advantage as trial judge. Accordingly, his findings as to the credibility of Dr Sarian should not be given the weight normally accorded to the findings of a trial judge. A statement of a conclusion concerning a witness without explanation is not a substitute for an analysis of the evidence of that witness.

125 Of course this Court, not having seen and heard Ms Elton and Dr Sarian, is not in a position to reach its own conclusion. This is particularly so when on the important issue of disinfecting the injection site, their evidence is different.

The evidence of Professor Eisen

126 His Honour dealt with the evidence of Professor Eisen at paras [29] - [33] of the judgment (see [14] - [15] hereof).

127 It is obvious from these paragraphs that his Honour misunderstood the effect of Professor Eisen's reports.

128 The effect of these reports was as follows. Streptococcus Milleri (SM) is a commensal organism found in the pharynx and gastrointestinal (GI) tract. It is not a routine skin commensal. (By "commensal" I understand Professor Eisen to mean a bacteremia which cannot survive on its own but requires a host.) While SM characteristically causes infections of the head, neck, lungs and bony skeleton, those infections spread from the pharynx and GI tract predominantly. Where skin and soft tissue infections have been recognised as due to SM, they have been shown to mostly occur to injecting drug users who lick the needle used for injection thus contaminating the needle with oral flora such as SM. On that basis, Professor Eisen concluded that "The most likely source of SM that caused the skin and muscle infection in Ms Elton's case was from the GI tract". Professor Eisen accepted that "It is conceivable but less likely" that the SM was colonising Ms Elton's skin and was introduced to the muscles of the right forearm by the injection.

129 In addition, Professor Eisen had regard to the period of almost two weeks between the date of the injection and the development of symptoms (WB62.5). He regarded such a lapse of time as more consistent with SM being present at the site of the inflammation, having travelled along the GI tract and being activated by the injection into that site than having been introduced by the injection.

130 It is against that background that the full quotation of Professor Eisen's opinion should be considered, not the partial quotation set out in his Honour's judgment. The full text of what Professor Eisen said (WB277.2) was:

"It appears highly likely that there is a direct relationship between the injection of anti-inflammatory and local anaesthetic into the region of the lateral epicondyle of the right elbow on 25 November 2005 and subsequent intra-muscular abscess in the same region that became symptomatic around the 12 November 2005. As above, it is possible that the SM organism was directly implanted into the muscles and soft tissues of the right elbow at the time of the local injection performed by Dr Sarian. This would require the extremely unusual circumstance of skin colonisation of the arm with SM. More likely it appears that a bacteremia with SM arose from a GI source and localised to the region of pre-existing inflammation in the right elbow that was exacerbated by local trauma caused by the injection of anti-inflammatory/local anaesthetic into the area."

131 There was nothing controversial in that opinion of Professor Eisen. This was acknowledged by Professor Iredell in his reports of 18 November 2009 and 23 February 2010. In the first of those reports Professor Iredell said (WB238.7):

"SM is a rare cause of blood culture contamination and is a common coloniser of oropharynx, GIT and genitourinary tract. It is an unusual pathogen in an inoculation infection but the only alternative is that the site was "seeded" via the blood stream from an oropharyngeal or GI source. I do not believe the lady had any significant evidence of disease that would be consistent with this, although sub-clinical disease is perfectly plausible and even normal tooth brushing may result in low-level transient bacteremias, which could potentially have seeded the site of trauma/bleeding.

If it is established that the procedure was carelessly performed, then contamination by direct inoculation is, in my opinion, more likely than seeding from a distant source, given the apparent absence of GIT or oropharyngeal disease. Professor Eisen suggests the latter is more likely and the fact is that either contention is a valid explanation. Forced to make a choice, I favour the former and Professor Eisen favours the latter, it seems."

132 In the report of 23 February 2010 Professor Iredell said (WB241.9):

"It is certainly credible that such an organism would lodge in an area of tissue damage (such as a haematoma), especially if tissue defences are partially disabled by steroid injection at that site. The GI tract is also a credible source of such a bacteremia although one would ordinarily expect that this is less likely in the absence of a GI lesion. Although these may be silent for some time and have not been formally excluded (eg a hidden tumour or diverticular disease), I believe that this is an unlikely explanation in the absence of any symptoms or signs. ...

On balance, I believe that inoculation of the site through the skin is most likely if the skin was not clean and/or had been touched with a finger or glove that was not clean. The alternative explanation of blood stream seeding is more likely if sterile technique was followed. Either explanation is credible in either circumstance, and neither scenario can be excluded.

It should be remembered, however, that infection is a risk inherent in any invasive procedure, including those conducted in a sterile operating theatre."

133 Accordingly, it was factually wrong of his Honour to dismiss the opinion of Professor Eisen on the basis that "there was no medical evidence that supported this finding" and "that the weight of the medical evidence supported" Professor Iredell's opinion.

134 It was necessary for his Honour to properly analyse the competing opinions of the infectious disease specialists and if possible, reach a conclusion on the basis of that analysis. This obligation was discussed in some detail in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174, (2004) 60 NSWLR 127. There Ipp JA, with whom Bryson JA and Stein AJA agreed, said:

"62 In Moylan , Sheller JA (with whom Beazley JA and Giles JA agreed) referred to and adopted much of the reasoning of Henry LJ in Flannery . His Honour quoted the following remarks of Henry LJ (reported in Flannery at 381-382; 377-378) with approval:

"It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78:

"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ... '"

And:

"... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other..."

Similar observations were made in Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, Archibald v Byron Shire Council [2003] 129 LGERA 311 and Papadopoulos v NSW Insurance Ministerial Corporation [1999] NSWCA 116.

135 Far from his Honour "entering into the issues canvassed before him" and explaining why he preferred the opinion of Professor Iredell over that of Professor Eisen, his Honour engaged in no analysis of the competing opinions at all. Having rejected the opinion of Professor Eisen on the erroneous basis already referred to, his Honour made no further reference to his opinion and based his conclusion entirely upon the opinion of Professor Iredell.

136 Since his Honour did not do so, it becomes necessary for this Court to carry out that process. This Court is just as able as his Honour to carry out an analysis of the competing opinions because neither Professor Iredell nor Professor Eisen gave oral evidence.

137 The absence of any oral expert evidence highlights a fundamental problem in how the case was run at trial. I can well understand how in the interests of efficiency parties would rely upon medical reports where there was no real medical issue or where the expert who prepared the report was unavailable. Alternatively, the resolution of a medical issue may depend upon the assumptions put to the medical expert and not on the opinion of that particular expert. This, however, was not one of those cases.

138 In this case there were two highly qualified specialists who had each reached different conclusions. Unless there was some logical inconsistency in the approach of one of them, it is difficult to see how his Honour could have resolved medical causation. Equally, it is difficult to see how this Court can resolve medical causation without having seen and heard Professors Iredell and Eisen.

139 I have not found any logical inconsistency in the opinions of either expert. In his report of 21 October 2008 Professor Iredell concluded (WB219.5):

"It might be argued that the traumatised site was seeded by SM during the course of tooth brushing or even dental problems (unrecognised gingivitis or decay or dentures), since SM is more likely to colonise the oro/nasopharynx than the skin and trivial bacteremias associated with tooth brushing and asymptomatic disorders of teeth and gums are probably very common. However, SM is certainly capable of causing infection by transcutaneous implantation, i.e. by being introduced at the time of the injection, and is not a surprising isolate in the context of an injection abscess. The timing of the infection and the history of the injection are consistent with the infection having been introduced at the time of the injection.

The principal breakdown was the failure to perform a sterile procedure (i.e. to prepare the skin with appropriate disinfectant, drape the area after skin preparation, use sterile gown and gloves and maintain a sterile technique). This failure greatly enhances the likelihood of an injection site abscess, such as appears to have occurred.

Conclusion

Inappropriate technique is likely to be the sole contributor to this outcome. Sterile conditions and expert injection technique is not absolutely risk-free but the described failure of sterile technique is indefensible and extremely likely to have caused this complication."

140 I have already quoted extensively from the report of 18 November 2009 (WB238). In that report Professor Iredell also spoke in terms of both a "clean procedure" and a "sterile approach". In relation to the latter he said (WB239.2):

"It seems to me that a sterile approach to such an injection would be widely accepted to be the correct and usual procedure before, after and including 25 November 2005."

141 Similarly, I have already quoted from Professor Iredell's report of 23 February 2010. In that report Professor Iredell also explained that while SM located on skin was unusual, there were examples of it recorded in medical literature. In relation to the timing of the development of symptoms, Professor Iredell said (WB241.7):

"... With regard to the timing of events under discussion, a very small number of bacteria seeded into an area with a suppressed local immune response (as in this instance) might well be delayed in presentation with symptoms. It is also quite conceivable that the steroid injection delayed the presentation of the infection. I think a two week period between a small inoculum and presentation to a doctor with an obvious abscess is quite reasonable."

142 In relation to the advisability of carrying out a sterile procedure, as distinct from a clean procedure, Professor Iredell said (WB242.3):

"It has long been accepted that greater attention to sterility at the skin during invasive procedures of all sorts is associated with lowered infection rate. I am not in a position to comment on whether an appropriately low-risk technique was followed in this particular instance but for less invasive procedures (e.g. venipuncture or subcutaneous injection), the standard level of preparation is as simple as a brief alcohol skin preparation and clean hands or gloves."

143 By way of response to matters raised by Professor Iredell, Professor Eisen in his second report of 10 December 2009 said (WB278.7):

"If the plaintiff's version as set out in the briefing letter to Professor Iredell is accurate this does not alter my opinion as expressed in paragraph 8 of my written report of 8 April 2009. The fundamental issue that guides my assessment is that SM is not a member of the normal skin flora and would not have been present on the plaintiff's arm unless it was contaminated with saliva. This is not indicated by the plaintiff's version of events."

144 In relation to some specific questions addressed to him, Professor Eisen said (WB278.9):

"I performed a thorough search of the medical literature and failed to find any evidence of SM causing soft tissue infection complicating medical administration of therapy for soft tissue strain. The literature, rather, indicates that infection following soft tissue injection is an uncommon condition typically caused by known implantation pathogens such as staphylococcus aureus or atypical mycobacteria. Where SM has caused soft tissue disease such as tendon sheath infection, this has been due to inoculation of oral flora through bite injury or implantation via a sewing needle contaminated with saliva.

Therefore it is clear from the medical literature that SM is not a cause of implantation injury aside from where oral flora are injected into the soft tissues such as by injecting drug use practices, bite injury or other accidental inoculation with material overtly infected with saliva. This supports the contention that the more likely source of SM infection in the plaintiff's case in her right elbow in December 2005 is from bacteremic spread from a GI source."

145 In relation to the timing of the onset of the infection, Professor Eisen expanded his previous opinion (WB279.3):

"SM is a pyogenic organism and causes infections that have much in common with S.aureus in terms of onset and extent. I would have expected a SM infection resulting from implantation on 25 November 2005 to have caused overt symptoms and signs of infection by one week. This statement is guided by the case described as S.aureus intratendinous abscess complicating steroid injection. In this case, symptoms of the S.aureus infection became apparent rapidly as described in the report - "rather than resolution of symptoms, the patient experienced increased pain and swelling over the ensuing week, and the pain became constant".

Further, I note from Dr Walsh's report (paragraph 2 page 2) of 28.4.2009 that the plaintiff was found to have a compartment syndrome associated with the muscle abscess. This is a more fulminant condition than a tendon abscess and would definitely be expected to present within one week of its development.

The presence of the topically injected, long acting steroid, Kenacort can be expected to alter the local manifestations of infection to some extent. It will promote the growth of the organism but reduce the associated inflammatory signs. I do not expect the overall impact of the injected steroid to have been such that it would reduce the time to development of signs of the infection due to pyogenic organism SM. A less virulent pathogen may have taken longer to present."

146 Apart from the comments of Professor Iredell concerning "sterile" conditions as distinct from "clean" conditions, which seem somewhat unrealistic in the context of a relatively simple injection, I can find no basis in the reports for preferring the opinion of Professor Iredell over that of Professor Eisen or vice versa. The reports from each of them clearly and methodically develop the opinions which they proffer. As already indicated, there is no basis in principle or in logic for preferring one set of reports over the other.

147 This is a highly unsatisfactory situation. On one view it could be said that since these expert opinions are evenly balanced, the respondent has not established medical causation on the balance of probabilities. On the facts of this case, that would produce a result which was unfair to Ms Elton.

148 Had the proper analysis of the expert opinion been carried out by his Honour, he would as this Court has done, have appreciated the impossibility of deciding this case on the reports of Professors Iredell and Eisen without either of them giving evidence. In those circumstance, his Honour may well have recalled the parties and pointed out the problem to them. There are, of course, other options which he may have taken. I remain of the opinion, however, that it would be highly unsatisfactory to resolve this case, given its complex factual circumstances, on an onus of proof basis.

Reports of Dr Walsh

149 His Honour dismissed the opinion of Dr Walsh without analysis on the basis that he could not be accepted as an objective commentator and that he had to some extent entered into the arena (see [92] hereof). As a result no further reference or examination of the report of Dr Walsh took place and his opinions were disregarded.

150 His Honour's treatment of the evidence of Dr Walsh was not justified. The comment by Dr Walsh which his Honour criticised was no more than an attempt to reconcile the two conflicting versions of how the injection was given. Dr Walsh did not in that comment assert that "the plaintiff must have been mistaken" as set out in para [69] of the judgment. On the contrary, Dr Walsh said that it was "possible" that Ms Elton was mistaken. Given that Dr Walsh had complied with the expert's code of conduct in preparing his report, that the report was relevant to the issues which he had to decide and was supported by references to current medical literature, it was necessary for his Honour to analyse it and take into account its effect. Since his Honour did not do so it falls to this Court to carry out that process.

151 Dr Walsh was a general practitioner with 28 years of experience at the time of trial. Much of his report assumes an acceptance by a court of the evidence of Dr Sarian as communicated to him in his letter of instruction. I do not propose to refer to that part of the report since the question of which version of the facts is to be accepted remains unresolved. His report does, however, contain evidence concerning the giving of injections generally and this evidence does not depend upon an acceptance of Dr Sarian. This evidence was important and should at least have been referred to and dealt with by his Honour. This is particularly so when the evidence was supported by references to the medical literature, some of which was attached to his report.

152 In the report of 28 April 2009 Dr Walsh drew a distinction between "a sterile procedure" (which he referred to as "aseptic") and a "clean" procedure. He set out the occasions when those procedures would be used. On that issue he said (WB245.2):

"An important distinction must be drawn between joint and soft tissue injections. Joint injections carry the risk of septic arthritis and it is often recommended that these be performed under aseptic conditions, with gloves gown and surgical drapes. Soft tissue injections, on the other hand are little more than an extension of simple subcutaneous injections such as vaccinations or insulin injections and are associated with extremely low risks of infection. Research has demonstrated that disinfection of the skin prior to subcutaneous, intramuscular or intravenous injections with sterile needles does not measurably improve rates of infection, as the incidence of infection was negligible with or without skin disinfection. For diabetics requiring subcutaneous insulin injections, injection without disinfection, injection through clothing and self-reuse of needles are now widely supported as safe practice ...

It is clear that what is recommended here is a "clean" technique for soft tissue injection, not an "aseptic" technique. Injections are normally administered using a "clean" technique by general practitioners, similar to that employed when changing a dressing. Hand washing or using an alcohol rub is the important initial step. Inherent in such a technique is the possibility of some secondary contamination of the skin as bacteria may fall from the patient and/or doctor's clothing, face or nose. As there are no drapes, implements such as syringes cannot be placed in a sterile zone and may come into contact with unsterile surfaces such as the plaintiff's skin. Gloves, if used, may be initially sterile or unsterile. It is almost inevitable that gloves will subsequently come into contact with unsterile implements, the patient's skin or clothing during a "clean" procedure. While it is important that the needle not be touched prior to entering the patient's skin, there is no evidence that "after hand washing" touching a patient's skin in the vicinity of an injection site prior to injection leads to an increase in subsequent septic complications in community practice."

153 Dr Walsh when dealing with the particulars of negligence said (WB247.2):

"The risk of infection associated with a soft tissue injection is so low that research has failed to demonstrate a measurable benefit associated with the use of antisepsis, much less the use of aseptic technique."

154 Dr Walsh, when commenting on the opinion of Professor Iredell said (WB248.4):

"Professor Iredell appears to have no relevant experience in general practice and has not quoted any literature to support his contention that Dr Sarian's "inappropriate" technique diverged significantly from that of his peers.

Professor Iredell fails to acknowledge that skin disinfection prior to soft tissue injections (as opposed to surgical procedures) produces no measurable reduction in subsequent infection. Infections after soft tissue injections are a rare event and administration of injections without prior skin disinfection is increasingly practised in the community. There is no objective evidence provided in support of his opinion that "inappropriate technique" as opposed to misadventure was the cause of the plaintiff's infection.

Professor Iredell fails to refer to the literature to support his contention that administering a soft tissue injection as a "sterile" procedure as opposed to a "clean" procedure produces less adverse outcome. There is no evidence that general practitioners performing soft tissue Cortisone injections observe "sterile" procedure protocols rather they observe "clean" procedure protocols. The use of sterile gloves, a surgical gown and surgical disinfection followed by draping of the site of the soft tissue injection (to ensure that the syringe and gloves could not become secondarily contaminated by contact with the patient) would be quite inappropriate and unnecessary in a primary care setting for this procedure, in my opinion. There is good evidence that "clean" procedure protocol achieve comparably low infection rates to "sterile" procedure protocol for soft tissue injection."

155 This evidence of Dr Walsh was relevant to the application of s5B and s5O of the Civil Liability Act 2002 (CLA).

156 Section 5B provides:

"5B(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

157 There was no issue that the risk was foreseeable. The report of Dr Walsh, however, raised an issue as to the significance of the risk and the probability that harm would occur if care were not taken. The evidence of Dr Walsh was to the effect that the foreseeable risk of injury from an injection, administered in the way described by Ms Elton, was not significant. There was, however, evidence to contrary effect in the last two paragraphs of the report of Professor Iredell of 21 October 2008 (WB 219). That conflict was not resolved by his Honour. Because Professor Iredell and Dr Walsh did not give evidence in the proceedings, this Court is not able to resolve such a direct conflict in opinion.

158 Section 5O provides:

"5O(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."

159 Section 5O CLA has been held to operate as a defence ( Dobler v Kenneth Halvorsen at [54] - [61]) in the sense that it is necessary for the professional seeking to rely upon it to establish the circumstances for its operation. In this case because Dr Walsh did not give oral evidence, it is not clear whether he would have regarded the injection procedure described by Ms Elton as constituting a "clean" procedure. If he did not, it is difficult to see how s5O could apply if Dr Sarian's version of how the injection was given was not accepted. This is an important consideration in circumstances where this Court is not able to decide for itself whose version of events should be accepted. In those circumstances in the absence of Dr Walsh giving oral evidence, it cannot be said that his report establishes a defence for Dr Sarian under s5O CLA.

160 The evidence of Dr Walsh set out above is also relevant to medical causation. Whereas Professor Eisen focused upon the nature of the infection, Dr Walsh focused upon the method of injection. It was the opinion of Dr Walsh, that skin disinfection prior to soft tissue injections produced no measurable reduction in subsequent infection and that the risk of infection associated with a soft tissue injection was so low that research had failed to demonstrate a measurable benefit associated with the use of antiseptic.

161 The difficulty with this aspect of Dr Walsh's report is that it is not clear what reliance was placed upon it by the appellant in the proceedings before his Honour. This Court did not have the benefit of the extensive written submissions of the appellant at trial nor did it have the benefit of the oral submissions. From the limited exchanges between counsel and his Honour recorded in the transcript, it is not clear whether at trial the appellant relied upon the report both in relation to medical causation and in relation to the s5O CLA defence or only in relation to the s5O CLA defence.

162 What seems clear is that there was no s5B CLA issue (other than the factual issue between Dr Sarian and Ms Elton) raised before his Honour, nor was any such issue raised in this Court. Accordingly, it is not appropriate for this Court to consider that issue further.

163 The extent to which Dr Walsh's report was relied upon (if at all) on the issue of medical causation is simply not known. Certainly reliance was placed upon it on that issue in the appeal, although the main thrust of the appeal submission was directed towards the s5O CLA question. At trial, however, it may not have been relied upon for that purpose. In saying that, I appreciate that it was relied upon to support Dr Sarian's evidence as to what actually occurred at the time of the injection, but otherwise it may not have been relied upon in respect of medical causation. This issue may well have been capable of resolution had his Honour referred to the contents of the report, or otherwise made some analysis of it. On the state of the evidence before this Court, it is not possible to determine that issue.

164 In circumstances where a report of this kind may have been tendered and relied upon for only a limited purpose at trial, it would be inappropriate for this Court to take it into account for a different purpose, i.e. medical causation, even though it was clearly relevant to that issue.

Conclusion

165 It is clear that this trial miscarried in a number of respects. There was a failure to properly treat the evidence of Dr Sarian. There was a failure to properly analyse the competing expert evidence of Professors Iredell and Eisen and there was a failure to properly analyse and deal with the report of Dr Walsh. These problems were exacerbated by the fact that in a medical negligence case where there was conflicting expert opinion, none of the experts were called to give oral evidence. For the reasons indicated, it has not been appropriate or possible for this Court to resolve for itself the liability issue.

166 In those circumstances it is unavoidable that the matter should be remitted to the District Court for a rehearing, such rehearing to be restricted to the issue of liability. That is a regrettable result, given the modest damages involved.

167 The orders which I propose are as follows:

(1) That leave to appeal be granted.

(2) That the appeal be allowed.

(3) That the judgment in favour of Ms Elton against Dr Sarian be set aside.

(4) That the costs order in favour of Ms Elton against Dr Sarian be set aside.

(5) That the matter be remitted to the District Court for a hearing limited to liability. Should liability be found in favour of Ms Elton, damages are to be as assessed in the first trial with appropriate adjustments to take account of interest.

(6) That Ms Elton pay Dr Sarian's costs of the appeal.

(7) That the costs of the first trial be determined by the trial Judge in the new trial.

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Decision last updated: 19 May 2011