IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Action No. HBC 354 of 2006

BETWEEN:

ASAELI NAUA SAULAKI
Plaintiff

AND:

MINISTRY OF HEALTH
1st Defendant

THE ATTORNEY GENERAL
2nd Defendant

Coram: Hickie, J

Dates of Hearing: 	21 July 2008

Counsel:	Mr R.D. Prasad for the Plaintiff
Mr N.N. Prasad and Ms N. Karan for the 1st and 2nd Defendants

Date of Decision: 	22 August 2008

JUDGMENT

A. BACKGROUND

[1]	This is a matter where the Plaintiff has issued a Writ of Summons and Statement of Claim for an action under the common law into alleged medical negligence by the Public Health Service for treatment he received following a work-related knee injury. The Plaintiff is seeking: 

“(a).	Special damages;
(b)	General damages;
(c)	Interest from the date of the cause of action;
(d)	Post Judgment interest;
(e)	Costs.”

[2]	On or about 13 August 2003, the Plaintiff, who worked as a labourer in the employ of Lumber Processors Fiji Limited, was assigned to cut trees. Whilst doing so, a tree allegedly fell and hit him on his left knee. 

[3]	The Plaintiff was then taken to Savusavu Hospital where he was admitted, medically examined and diagnosed to have suffered left knee soft tissue injury. 

[4]	It was from there that the cause of action has arisen. According to Counsel for the Plaintiff in his opening oral submissions:

“What we are in fact saying is that the Doctors based at Savusavu Hospital … failed in their duty to properly diagnose the injury of the plaintiff and hence … the actual permanent disability that he is suffering today.”

B. THE TREATMENT AT SAVUSAVU HOSPITAL

1. The agreed evidence

[5]	Upon admission to Savusavu Hospital at approximately 9.00 am, on 13 August 2003, the Plaintiff was seen by Dr Dennis employed by the First Defendant who gave the Plaintiff Panadol tablets.

[6]	At approximately 9.30 am on 14 August 2003, the Plaintiff was seen by Dr Nerlina also employed by the First Defendant and mobilised on a wheel chair X-rays were not taken until late afternoon (about 3.30 pm) as there was at that time no x-ray technician available in the morning. After x-rays were taken, the Plaintiff was mobilised on crutches and continued to be given analgesics and was advised to elevate the affected leg on a pillow as he slept that night.

[7]	At approximately 9.15 am on 15 August 2003, the Plaintiff was seen by Dr NERLINA and ice was applied on the affected knee.

[8]	At approximately 10.00 am on 16 August 2003, the Plaintiff was seen by Dr NATOBA also employed by the First Defendant and further painkillers commenced.

[9]	On the morning of 17 August 2003, the Plaintiff was seen by Dr LTEIN also employed by the First Defendant who commenced new medication and advised he could be discharged the next day.

[10]	On 18 August 2003, Dr KTERLLINA also employed by the First Defendant discharged the Plaintiff providing medications and a clinic date for review.

2. The Plaintiff’s evidence

[11]	Much of what took place is agreed. As the Plaintiff admitted in cross-examination:

“Q:	Mr Saulaki you said that when you presented yourself to Savusavu 	Hospital you were examined at the Savusavu Hospital?
A:	Yes

Q:	Your temperature was taken?
A:	Yes

Q:	Your blood pressure level was taken?
A:	Yes

Q:	Your sugar level was taken?
A:	Yes

Q:	You were given painkillers?
A:	Yes

…
Q:	Were you given a wheel chair to move around?
A:	Yes

Q:	… Was x-ray done on your knee?
A:	Yes

Q:	… was your leg elevated on a pillow?
A:	Yes

Q:	On 15/08 was painkiller given?
A:	Yes

Q:	On the same day was ice pack applied at 1020hrs?
A:	Yes

Q:	On pg.10 of the Savusavu Nursing notes at 8.30 you were 	discharged, medication was given and clinic date given?
A:	Yes”

3. The expert evidence

[12]	According to the Defendant this was the correct treatment as supported by the evidence of the expert witness, Dr EMOSI TALOGA, Orthopaedic Surgeon from the CWM Hospital, Suva, during both his evidence-in-chief and cross-examination, when he was taken through a review of the nursing notes from the Plaintiff’s admission at Savusavu Hospital from 13 until 17 August 2003.

[13]	In relation to his evidence-in-chief, the relevant evidence was as follows:

Q:	Just briefly, can you explain to us regarding these nursing notes and what comments have been made as far as the documents are concerned? That is, pg. 9 and 10?
A:	13th he was seen by Dr Dennis and treatment given was Panadol and the next morning he was seen by another Doctor who ordered x-rays and another tablet of pain killer was added that was on the 15th of August. Then on 16thhe was seen by another different Doctor, Dr Natoba, basically the treatment was the same. And on the 17th he was seen by another different Doctor, Dr Lutein, and he added antibiotic and patient can go home on a sick sheet.

Q:	From your expert knowledge and experience, the Doctors at Savusavu Hospital when the plaintiff was brought in on the 13th as per record , would you say that the initial steps in any examination is an x-ray?
A:	From the history that was given by the patient and examination you might make an assessment of the seriousness of the injury, it might warrant an x-ray or not an x-ray.

Q:	As far as the plaintiff is concerned, he complained of injury to the left knee as per records from the nurses notes and on the 14th as per the record at 9.30 seen by Dr Nerlina awaiting x-ray of left knee as there is no x-ray technician available. Now do you know whether any x-ray was taken?
A:	I believe that an x-ray was taken later that was on the 14th 

Q:	And would the x-ray report show ligament damage?
A:	No, ligament damage you won’t be able to see on the x-ray

Q:	But from the physical examination and interview with the patient would be you able to make an assessment then as ligament damage?
A:	You might be able to make an assessment of the seriousness of the injury from the pain and swelling because in the acute stage if there is a ruptured ligament usually it is very painful to examine the patient – you might give them a week or two because you recall them to do another assessment.

Q:	Usually the Doctors would give them a clinic date to come back for further assessment?
A:	Yes

[14]	His evidence in cross-examination was even more revealing:

“Q:	In your report it says there Mr Saulaki has a complete tear of anterior ligament and a partial tear of medical collactural ligament of the left knee. Can you explain more about this under which type of injury this is?
A:	These are ligament injuries

Q:	We refer to the Savusavu medical report pg.9. Doctor in your expert opinion, the diagnosis that was administrated as per records, what kind of diagnosis was provided at Savusavu Hospital?
A:	On pg.9 is the nursing note

Q:	As per the nursing note the line of treatment that was administrated it is linked to which particular injury?
A:	The injury of his knee

Q:	And that injury would be the ligament injury that he suffered?
A:	Yes

Q:	Based upon your expert opinion what is the line of treatment that is actually administrated to a patient suffering from ligament injury or soft tissue injury?
A:	Soft tissue injury the management is what the synonym is “RICE” – R-Rest, I-Ice, C-Compression Bandage and E-Elevation

Q:	In regards to the treatment that you’ve just explained and from the medical report stipulated on pg.9, was the patient given RICE?
A:	Yes

Q:	On 14/8 at 0930hrs was the person mobilised on the wheelchair?
A:	Yes

Q:	Was the patient responding to painkillers – was given painkillers?
A:	I believe he was given painkillers Panadol but 9.30 report no complaints

Q:	1020hrs what does it state?
A:	Ice pack applied
….

Q:	Pg.9 of the Medical Report, Savusavu Hospital. Now at 0930hrs it is stipulated that x-ray was not taken because there was no technician available. At 1530hrs can you explain what is written? 
A:	1530hrs x-ray done, patient using crutches, responding well to analgesics 

Q:	Can you explain what does that mean “patient using crutches and responding well to analgesics”? Is that a form of diagnosis?
A:	No, it is a form of observation

Q:	There is a delay of 6hrs in taking x-ray, does that delay aggravate the injury on the plaintiff?
A:	No

…

Q: 	Doctor based upon your expert opinion and as stipulated by the Savusavu records on the line of treatment was there any negligence?
A:	I don’t think so”

[15]	Section 15 of the Civil Evidence Act 2002 states:

“Admissibility of expert opinion and certain expressions of non-expert opinion

15.-(1) Subject to any rules of court under this Act, if a person is called as a witness in any civil proceedings, the person's opinion on any relevant matter on which he or she is qualified to give expert evidence is admissible in evidence.

(2) Where a person is called as a witness in any civil proceedings, a statement of opinion by the person on any relevant matter on which he or she is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by the person, is admissible as evidence of what he or she perceived.

(3) In this section "relevant matter" includes an issue in the proceedings in question.”

[16]	Thus expert evidence is not inadmissible because it is about the ultimate issue to be decided by the Court. Although an expert can give evidence on any relevant matter or issue in the proceedings, they should not be asked to answer the ultimate issue. The Court and the Court alone must make its own assessment of all of the evidence giving weight, of course, to any expert who may have been called. Although in the present case, surprisingly, there was no objection to the question by Counsel “was there any negligence”, the Court notes that this is a matter which it, and only it, must decide and on the basis of legal negligence. 

C. THE DISPUTED EVIDENCE: THE POST-TREATMENT AT SAVUSAVU HOSPITAL

1. The Plaintiff’s evidence

[18]	What is agreed is that the Plaintiff was given a clinic date for review. What is not agreed is whether the Plaintiff ever attended the clinic for subsequent review. The Plaintiff says that he did but the hospital has no records.

[19]	The Plaintiff’s evidence in examination in chief on “the clinic date for review” issue was as follows:

Q:	When you got discharged from the hospital, did the Doctors tell you to come for further review?
A:	Yes

Q:	And did you go for the review?
A:	Yes

Q:	Did the Doctors examine you on the day of review?
A:	Yes

Q:	What did they tell you?
A:	They just give painkillers

Q:	Now when you went for this review what was the condition of your left knee?
A:	Not swollen but it is still paining

Q:	And did you tell the Doctors that your left knee was painful?
A:	Yes

Q:	And what did the Doctors do?
A:	That I should come back and take some more tablets

Q:	This is at Savusavu Hospital?
A:	Yes

Q:	Were you at any point or did Doctors refer you to any big Hospital meaning Labasa as the nearest or CWM Hospital?
A:	No

Q:	After the review did you go back for further check ups?
A:	Yes

Q:	How many time did you go?
A:	I can’t remember

[20]	It was at this point during the hearing that Counsel for the Defendants strongly objected noting that the Plaintiff’s evidence of alleged attendance at the clinic for “reviews” not only contradicted the hospital records, but no such disclosure was made in the Statement of Claim or in the Minutes of the Pre-Trial Conference (in either the agreed facts or the issues to be determined). Accordingly, Counsel for the Defendants submitted that on that basis there was nothing that they had to defend. Counsel for the Plaintiff did not seek to amend his pleadings but agreed with the Court that the point he was making was that there were no records following discharge even though the Plaintiff claims he went for a number of reviews which are unrecorded.

[21]	The Plaintiff’s evidence in cross-examination “the clinic date for review” issue highlighted that it was his word against the hospital records:

“Q:	On pg.10 of the Savusavu Nursing notes at 8.30 you were discharged, medication was given and clinic date given?
A:	Yes

Q:	You earlier on said that after 2 months you came for that clinic date?
A:	No, after few days I came back

Q:	When was the review date, what was the date?
A:	I can’t remember

Q:	How many days after the discharge was that review date?
A:	One week

Q:	What was the name of the Doctor that you saw at the review date 	one week later?
A:	I can’t remember

Q:	When you came for the review what process did you go through? 	What happened that day?
A:	I was using crutches and was given tablets

Q:	Was it a clinic day Mr Saulaki?
A:	Yes

Q:	Did they take your patient folder out Mr Saulaki?
A:	Yes”

2. The expert evidence

[22] 	All that the expert witness was asked on this issue in examination-in-chief was:

Q:	Usually the Doctors would give them a clinic date to come back for further assessment?
A:	Yes

And the following two brief questions in re-examination:

“Q:	Doctor you were asked questions and made reference to pg.9 and 10 [of the medical reports for Savusavu Hospital] – Now anywhere perhaps on pg.10 where it says he was discharged on certain date does it show anywhere a review date?
A:	It just says clinic date given but no exact date

Q:	And there is no further records apart that you made reference to?
A:	No”

[23]	By contrast, the evidence in cross-examination was again revealing:

Q:	Whom else was he referred to apart from the Doctor?
A:	Physiotherapist

Q:	Pg.10 medical reports for Savusavu Hospital – could you please read as it is stated at 0830hrs?
A:	Seen by Doctor Nerlina discharged with medications and clinic date given and sick sheet given to patient

Q:	In your expert opinion usually in soft tissue injury a doctor takes one to two weeks after which a clinic date is given to follow up – what is the importance of this clinic date given what happens actually in your expert opinion?
A:	Like I said before, in acute injuries there will be a lot of pain and swelling, so you wait for this to subside before you make a re-assessment of the injuries

Q:	From the records in front of you, does it mention anywhere that the patient attended to that clinic date?
A:	No

3. Resolving the competing claims

[24]	So we have the situation where clearly in the Savusavu Hospital Nursing Notes (Exhibit “4”) it is stated that the Plaintiff was seen by Dr Nerlina at 8.30am on 18 August 2003 whereupon he was discharged with medicine and “clinic date given” as well as a “sick sheet” for his employment. In his evidence, the Plaintiff agreed that this was done.

[25]	What is then in dispute was whether the Plaintiff even attended any subsequent clinic date for a review, and if so, what occurred. The Plaintiff says he attended not only on “the clinic date given” but further checkups. As to who he saw or how many times he went, however, he “can’t remember”.

[26]	The basis of the Plaintiff’s cause of action from page 2 of his Counsel’s “Submissions in Response” (dated 11 August 2008) is that:

“no one referred him [the Plaintiff] to consultants for further diagnosis after he complained of pain as he continued to visits [sic] hospital upon discharge. 

This is a clear act of negligence as the doctors have a duty to refer to consultant orthopaedic surgeons who deals [sic] with fractures of injuries as like the Plaintiff [sic] .... (My emphasis)

[27]	With respect to Counsel for the Plaintiff, the Plaintiff’s evidence as to any alleged “continued visits” at the outpatient clinic at Savusavu Hospital was clearly objected to by Counsel for the Defendants when it was given at the hearing. The basis upon which the Court received such evidence from the Plaintiff was simply that his evidence conflicts with the records of the hospital and that was the point Counsel for the Plaintiff was making. If there were more alleged visits, but no such records, then it was for the Plaintiff to take the issue further by producing evidence to support such bald claims. 

[28]	It must be remembered that the Plaintiff carried the burden of raising such an issue to a sufficient degree such that the Defendants had to meet it. Apart from the Plaintiff’s bald assertions, there was no evidence to corroborate it such as:

(a) Someone who may have attended any of the reviews with him at Savusavu Hospital;
(b) Copies of any prescriptions he was given by a doctor who saw him at any of the reviews at Savusavu Hospital;
(c) Alternatively, copies of any medications from a pharmacy which he obtained on a prescription given to him by a doctor during any of the reviews at Savusavu Hospital;
(d) Family and/or friends who associated with him during that 34 month period from when he was discharged from Savusavu Hospital on 18 August 2003 until he attended the Orthopaedic Clinic at the Colonial Memorial Hospital on 22 June 2006 when he saw Dr TALOGA, and who had discussions with him as to the ongoing “reviews” at the outpatient clinic at Savusavu Hospital.

[29]	As Counsel for the Defendants submitted in their closing submissions (at paragraph 4.21)

“The Defendants submit that there was no evidence provided by the plaintiff to support that he did actually turn up for the medical review on the clinic date given. The Savusavu Medical Notes (Exhibit 4] provides no records of the plaintiff attending vlinic at Savusavu Hospital for medical review. In the expert opinion of Dr Taloga, clinic dates are given to monitor how the patient is responding to the medical treatment given. The Defendants reiterate that the medical records do not have any records showing that the plaintiff turned up for medical review. If the plaintiff turned up for medical review his progress would have been noted, the types of medication given would have been noted; any further treatment and diagnosis provided would have been noted. However, there is no evidence [other than his assertions] that the plaintiff did come for medical review.”

[31]	In this regard, I note the majority judgment of Barwick CJ, Kitto and Taylor JJ in the High Court of Australia in Purkess v Crittenden (1965) 114 CLR 164 at pages 167-168, (Austlii: [1965] HCA 34, 16 July 1965, http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html, at paragraph 4) when they said :

“The expression ‘burden’ or ‘onus’ of proof, ‘As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’ (Phipson on Evidence, 10th ed. (1963) par. 92) … The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: ‘the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’ (ibid. par. 95)” (My emphasis)

[32]	Thus, while the Plaintiff has carried the ultimate ‘legal burden’ of proving his case on the balance of probabilities, both the Plaintiff and the Defendants have each carried “the burden of proof in the sense of introducing evidence”, that is, ‘the evidential burden’ on a particular issue during the trial. Applying the evidential burden to the Plaintiff’s claim as to his alleged attendance at subsequent reviews at Savusavu Hospital, I find that it has not been made out at the hearing of this matter such that the Defendants had to raise any further evidence to meet that claim. The hospital records speak for themselves. No evidence (other than his bald assertions) was raised by the Plaintiff to doubt that they have been correctly maintained.

[33]	To be clear, only when the Plaintiff had raised sufficient evidence to support his claim that he attended the reviews, did the Defendants have to meet such evidence. This was not a Jones v Dunkel (1959) 101 CLR 298 type situation, that is, that an inference could be drawn that the uncalled evidence (of staff from the Savusavu Hospital) would not have assisted the Defendants’ case. Only if the Plaintiff had raised it to a sufficient degree could inferences have then been drawn.

[34]	Thus, the Court finds on this issue:

(a) That no such disclosure was made by the Plaintiff in either in the Statement of Claim or in the Minutes of the Pre-Trial Conference (that is, the agreed facts or the issues to be determined); and

(b) As no evidence has been lead by the plaintiff other than his bald assertions this was not an issue which required the Defendants to lead any further evidence in rebuttal other than relying upon the hospital records disclosed.

D. THE LAW

1. Duty of care

[35]	Counsel for both the Plaintiff and Defendants agree that the First Defendant owes a duty of care to the Plaintiff. 

2. Breach of the duty of care?

[36]	The issue in this case then became was there was a breach of that duty of care? 	Indeed, Counsel for both parties have cited Bolam v Friern Hospital Committee [1957] 1 WLR 582 where at 586-587 McNair J said ([1957] 2 All ER 118 at 121-122):

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill …. it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art ...

I myself would prefer to put it this way: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: ‘I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.’ That clearly would be wrong.”

[36]	The “Bolam” test has been applied in the High Court of Fiji in the past decade in such cases as Wati v The Attorney General for Fiji (Unreported, High Court of Fiji, Civil Action No. HBC0222 of 1998, 12 September 2001, Fatiaki. J (Paclii: [2001] FJHC 68, http://www.paclii.org/fj/cases/FJHC/2001/68.html); and Ismail v The MedicalSuperintendent and The Attorney General of Fiji (Unreported, High Court of Fiji, Civil Action No.HBC 310 of 1998, 25 July 2000, Shameem J) (Paclii: [2000] FJHC 87, http://www.paclii.org/fj/cases/FJHC/2000/87.html).

[37]	In Wati v The Attorney General for Fiji, Fatiaki. J in applying the “Bolam test” found in favour of the Defendant (at pages 5-6 Paclii): 

“With the above in mind I have carefully considered the evidence led in the case before me and although I confess to entertaining some considerable sympathy for the plaintiff’s condition, I have reluctantly come to the conclusion that the evidence fails to positively establish any negligence (beyond misadventure) on the part of the surgeon who operated on the plaintiff … or, in her care and treatment thereafter, nor is the evidence of a nature and quality from which it may be reasonably inferred that there was negligence on the part of any of the staff of CWM.”

[38]	By contrast, in Ismail v The Medical Superintendent, Shameem J also applied the “Bolam test” to Fiji noting (at page 4 Paclii): 

“The medical staff at the CWM Hospital are judged by the standards of the ordinary, competent practitioner in the relevant field of medicine. The court may take into account the unique circumstances in which the doctors worked, such as the limited resources and facilities of the CWM Hospital. However a specialist is expected to exercise the standard of care of a reasonably competent specialist, and a registrar the standard of care of a reasonably competent registrar.”

[39]	According to James Baledrokadroka writing in the Journal of South Pacific Law in 2002: “The Bolam test is still applied in the region as the standard of care that is required of a doctor.” (See Volume 9 Issue 1 Volume 9 Issue 2 James Baledrokadroka , ‘The Interface of Law and Medicine in the South Pacific’, Journal of South Pacific Law, vol. 6, 2002, page 13 (Paclli: http://www.paclii.org/journals/fJSPL/vol06/9.shtml)

[40]	Counsel for the Plaintiff has cited a recent decision of the High Court of Fiji in A v Colonial War Memorial Hospital (Unreported, High Court of Fiji, Civil Action No.0184.2005, 8 May 2007, Coventry J) (Paclii: [2007] FJHC 121, http://www.paclii.org/fj/cases/FJHC/2007/121.html) where the "Bolam test" was discussed at paragraphs 35-37 as follows (Paclii page 7):

"In the House of Lords case of Airedale NHS Trust v. Blend [1993] A.C. 789 at p. 818 the court stated,

"A doctor owes a duty of care towards his patient and in the case of a patient unable to give instructions or consent to treatment, a duty to treat him in the patient's best interest; The general duty of a doctor is to act in accordance with a responsible and competent body of relevant professional opinion based upon the principles laid down in Bowlam [sic] v. Friern Hospital Management Committee [1957] 1 W.L.R. 582; ("The Bowlam [sic[ test")" …

In Bolitho v. City and Hackney Health Authority [1997] 3 W.L.R. 151 it was stated that:

"it is enough for a defendant to call a number of doctors to say what he had or did was in accordance with accepted clinical practice. It is necessary for the judge to consider that evidence and decide whether that clinical practice puts the patient at unnecessary risk."

[41]	On this issue Coventry J concluded with citing Lord Denning as follows (paragraph 38, Paclii page 7):

"In Hatcher v. Black (The Times 2nd July 1954) Denning L.J. stated, ‘You must not, therefore find him (the doctor) negligent simply because something happens to go wrong; ... You should only find him guilty of negligence when he falls short of the standard of a reasonably skilled medical man...’" (My emphasis)

3. Applying the "Bolam" test

[42]	The crux of this case was summed up by Counsel for the Defendants in their closing submissions at paragraph 4.18 thus:

" … the plaintiff has failed to prove that the doctors employed by the First 	Defendant were negligent. The plaintiff was diagnosed with soft tissue	injury and proper line of treatment [RICE] was administered. The plaintiff failed to attend the clinic date and turned up at CWM Hospital after a lapse of 22 [sic] months for medical assessment. The plaintiff was injured at work and instead of seeking redress from his employer through compensation, he choice [sic] not to do so and decide to leave the employment."

And further at paragraph 4.20:

"… The plaintiff on his own admission admitted that the doctors informed 	him that he was suffering from soft tissue injury. It is also stipulated from the medical records that the doctors advised the plaintiff to take rest, ice packs were applied, pain killers were given, the plaintiff was advised to use crutches, affected left knee was elevated on pillow. The plaintiff was given clinic date and discharged. The plaintiff failed to prove or even provide reasons on what basis did the doctors failed to advice [sic] him."

[43]	In response, Counsel for the Plaintiff has submitted (at pages 1-2):

"The Defendants ought to know and we invite the court to consider the test of Bolam [sic] as stated ion [sic] our closing submission.

The Court has to consider the opinion of the doctors who treated the Plaintiff. There was no evidence given by the treating doctors and ought to have been called by the Defendant but they chose not to. The court works with evidence and to prove that there was no negligence the treating doctors ought to testify.

The only doctor that testified was Dr. Taloga who was called by the Plaintiff and who confirmed the nature of the injury.

The documents that was [sic] tendered in court and in particular nurses notes states that the Plaintiff was seen by doctors but no one referred him to consultants for further diagnosis after he complained of pain as he continued to visits [sic] hospital upon discharge.

This is a clear act of negligence as the doctors have a duty to refer to consultant orthopedic [sic] surgeons who deals [sic] with fractures of injuries as like the Plaintiff." 

[44]	The submissions by Counsel for the Plaintiff on the issue that the Defendants had to give evidence is not correct. It is not in dispute that the plaintiff was treated in accordance with the "R-I-C-E" procedure for such injuries. As to whether he should have been referred to an orthopaedic surgeon at that stage is debatable, particularly as they had to wait until the swelling subsided. Hence, this was why the patient was discharged and given a "clinic review" date. There was NO medical evidence that the Plaintiff should have been referred to an orthopaedic surgeon whilst he was still in hospital and his knee was swollen.

[45]	Further, (as already discussed in detail above) that there was no evidence provided by the Plaintiff to support his claim of his attending Savusavu Hospital outpatients clinic on the review date (or any subsequent dates) places the question of the review firmly back with the Plaintiff as how could there be any question of negligence if the patient failed to do what was requested of him by the medical staff? The only evidence is that the Plaintiff some 34 months (or just under three years) later attended the CWM Hospital in Suva and was seen by Dr TALOGA whose evidence at the hearing in summary was:

"Q:	Based upon your expert opinion what is the line of treatment that is actually administrated to a patient suffering from ligament injury or soft tissue injury?
A:	Soft tissue injury the management is what the synonym is "RICE" – R-Rest, I-Ice, C-Compression Bandage and E-Elevation

Q:	In regards to the treatment that you’ve just explained and from the medical report stipulated on pg.9, was the patient given RICE?
A:	Yes"

And in relation to discharging the Plaintiff to come back for review said in examination-in-chief:

"Q:	But from the physical examination and interview with the patient would be you able to make an assessment then as ligament damage?
A:	You might be able to make an assessment of the seriousness of the injury from the pain and swelling because in the acute stage if there is a ruptured ligament usually it is very painful to examine the patient – you might give them a week or two because you recall them to do another assessment.

Q:	Usually the Doctors would give them a clinic date to come back for further assessment?
A:	Yes"

And also in cross-examination:

"Like I said before, in acute injuries there will be a lot of pain and swelling, so you wait for this to subside before you make a re-assessment of the injuries".

[46]	Clearly, the evidence of Dr TALOGA on the "Bolam test" was:

(a) The standard applied to the Plaintiff’s injury at the Savusavu Hospital over the period 13-18th August 2003 was that according to the standard of the ordinary competent medical practitioner; 

(b) The medical practitioners who saw the Plaintiff at Savusavu Hospital over the period 13-18th August 2003 were not guilty of negligence as they acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art;

(c) The staff at Savusavu Hospital acted in accordance with the accepted "R-I-C-E" procedure for such injuries and were not given the opportunity to consider referring the Plaintiff to an orthopaedic surgeon upon his first "clinic review" as there is NO evidence that the Plaintiff ever attended the hospital again at the out-patient clinic for such review.

3. Causation

[47]	As there is no finding that there was a breach of the duty of care by the Defendants it is not necessary to go further and discuss whether such breach caused or materially contributed to the Plaintiff’s ongoing problems in his left knee.

4. The Plaintiff’s confused evidence

[48]	Apart from the review issue, even the Plaintiff’s own evidence was equivocal on what he was told whilst in Savusavu Hospital when he said in examination-in-chief:

"Q:	You said you’ve been seen by a Doctor and given Panadol. Did the Doctors examined your left knee, looked at the left knee and told you what was wrong with you?
A:	Yes"

Contradicted a little later by:

"Q:	And what did the Doctors or person who did the x-ray to you did they explain to you what was wrong with your knee?
A:	No

Q:	And during these 3 times didn’t the Doctor advise you or inform you what was wrong with your knee?
A:	No

Q:	Didn’t you yourself ask?
A:	No, I didn’t ask"

And even further contradicted in cross-examination:

"Q:	Mr Saulaki why do you say the Doctors were at fault?
A:	Because they did not tell me the truth properly about what is really 	wrong with me

Q:	Early on you said the Doctors said you suffered soft-tissue nerve 	injury?
A:	But they never make it clear to me"

E. THE FINDINGS OF THE COURT

[49]	In view of the above, the findings of this Court are:

1. That the Defendants owed a duty of care to the Plaintiff.
2. That the expert evidence of Dr EMOSI TALOGA does not support the Plaintiff’s case that there was any negligence in the treatment he received whilst a patient at Savusavu Hospital.
3. That there was no breach of the duty of care, in particular, by the R-I-C-E-treatment provided.
4. That the Plaintiff was discharged with a date for review at the out-patient clinic.
5. That the evidential burden was upon the Plaintiff to support his claim as to his alleged attendance at subsequent reviews at Sauvsavu Hospital.
6. That there is no evidence to support the Plaintiff’s claim of his attendance on the first review date (or any subsequent review dates). 
7. Further, on that issue, the Court finds that the hospital records speak for 	themselves and that no evidence was raised by the Plaintiff to doubt that they have been correctly maintained.
8. That as the Plaintiff’s claim of his attendance of the out-patient clinic for review has not been made out, the Defendants did not have to raise any further evidence to meet that claim. 
9. That by the Plaintiff not attending the clinic for review (once the swelling had subsided) meant that the question of referring the Plaintiff to an orthopaedic surgeon could not be further considered.
10. Accordingly, there was no breach of the duty of care by the Defendants providing the Plaintiff with a clinic review date. 
11. That the Plaintiff waited some 34 months or just under three years from when he was discharged from the Savusavu Hospital until he later attended the CWM Hospital in Suva and was seen by Dr TALOGA was his decision and not the Defendants.
12. Accordingly, in view of the above, the Plaintiff has failed to prove his case, that is, to satisfy the persuasive burden that on the balance of probabilities the Defendants were negligent.

[50] 	Thus the formal Orders of this Court are as follows:

1.	Judgment is entered for the Defendant. 
2.	Costs to be paid by the Plaintiff as agreed or assessed.

Thomas V. Hickie
Judge

Solicitors:
Diven Prasad Lawyers, Barristers & Solicitors, Suva
Office of the Solicitor General, Suva