The Court of Appeal delivered its decision on 7 Oct 09, rejecting the losing patient’s appeal against District Court Judge Wager’s decision, dismissing her claim at trial.  The lead decision was delivered by Justice Newnes, with whom the 2 other members of the Court agreed.

The case concerned alleged negligent medical care following Ms Davy undergoing knee replacement surgery in February 2004.  Ms Davy claimed that the public hospital, Sir Charles Gairdner Hospital, at which she was receiving post-operative care was negligent in failing to arrange more urgent review and intervention when she developed post-operative swelling and signs of infection, ultimately leading to her requiring major further surgery.  Interestingly, it was clear these infection issues did not arise until July 2004, so 5 months after her surgery.

The case overwhelmingly depended upon the issue of whether Ms Davy was to be believed as to her claimed attempts to contact the hospital’s orthopaedic department to try to arrange her review, when her post-operative problems arose.

Judge Wager, the District Court judge was not convinced that Ms Davy’s claims were reliable, largely because she found that Ms Davy’s statements as to her attempts had varied over time and so in Judge Wager’s view, were ultimately unreliable.  Judge Wager also noted that Ms Davy’s GP’s records did not suggest she had raised concerns in relation to her knee’s condition, at a series of consultations after she claimed the problem had arisen (and after it was clear she had raised it with such GP).  On the other hand, it was clear that Ms Davy had phoned the orthopaedic department repeatedly over the relevant period (this was supported by her phone records).

Because of Judge Wager’s rejection of Ms Davy’s evidence (she found Ms Davy was "an honest, but unreliable historian"), she found the hospital were not negligent and there was not a need for the hospital to have arranged review and treatment of Ms Davy more urgently than occurred.

In a sense the appeal was a brave one.  It is well recognised principle that because an appeal court do not have the trial judge’s advantage of seeing and hearing the manner in which witnesses give evidence, they are generally very slow to interfere with conclusions reached by a trial judge which are based on credit/truthfullness of a witness.

The above points were made clear by Justice Newnes, who found there was no merit in Ms Davy’s attacks upon the trial judge’s conclusions, which he confirmed were all open to her, even if contrary more favourable conclusions could have been made.

The case is again a good reminder of the difficulty of appeals when a trial judge has made adverse credit findings.  If a trial judge makes adverse findings about a plaintiff or their witness’ evidence that are ‘harsh’ (perhaps because based on relatively minor errors etc) there is often little that can be done.  In a sense, in such cases, often an appeal is not really open.

It is also a very good reminder of the need to prepare for trial carefully and particularly to ensure all important witnesses are reminded of any previous statements or sworn evidence they may have given relevant to the facts of the case (which may have been given quite some time earlier).  This is absolutely critical in cases where the primary facts are the fundamental dispute (as here).  In this case, Ms Davy’s evidence in the witness box diverged in some respects from statements she had made, particularly in answers to interrogatories.