What happened

Coote consulted Dr Kelly about a painful lesion on his sole in September 2009 and received cryotherapy from him through May 2010. After further treatment by other practitioners, a biopsy identified melanoma in March 2011; it had metastasised and Coote died in 2012. His widow pursued the estate's claim and her own claims for mental distress and under the Compensation to Relatives Act 1897 (NSW).

The issues

The central question was whether the lesion's appearance during Kelly's treatment required investigation for melanoma. The couple's account that it was black from the outset conflicted with observations by several treating doctors. The appeals also raised its location on the foot and whether earlier diagnosis would have prevented metastasis.

The court's decision

Distinguishing honesty from reliable recollection, the Court upheld the rejection of the couple's description of early pigmentation. The location argument also disclosed no material error on the expert evidence presented. All three appeals were dismissed with costs, and the trial judge's contingent damages assessment did not become an award.

What this case shows

A later serious diagnosis does not itself prove that an earlier practitioner failed to take reasonable care. This case turned on evidence connecting the lesion's appearance at the relevant consultations with a need for further investigation. It also illustrates the difficulties caused by expert questions that blur possibility, probability, the existence of a tumour and the timing of its spread.

Why another case may differ

The decision does not deny a duty to investigate a suspicious pigmented lesion; that proposition was common ground. The 2013 order for a retrial was not a final compensation outcome, and the 2017 Court considered it preferable not to resolve causation on a hypothetical basis after breach had failed. It should not be read as a definitive finding that earlier diagnosis could not have prevented metastasis.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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