Melanoma diagnosis: Appeal allowed in Coote v Kelly

Coote v Kelly [2013] NSWCA 357 saw the defendant’s appeal allowed in respect of breach of duty, along with the (now deceased) plaintiff’s appeal in respect of causation.

NOTE: The claimant did not succeed on rehearing nor on the second appeal – see Coote v Kelly [2017] NSWCA 192.

The judgment  of the Court of Appeal appears to focus on the factual findings and reasons, rather than upon any particular legal issues. However on causation in delayed diagnosis of cancer cases, the passage at [63] may be of particular interest:

The plaintiff had to show that Dr Kelly’s breach of duty had caused “particular harm” within the meaning of s 5D(1). The particular harm on which the plaintiff’s case was based was metastasis. It is known that the melanoma had metastasized before 26 March 2011. It would be sufficient, if the plaintiff could prove, to the civil standard, that it had not metastasized prior to May 2010. The burden of proof remained with him: s 5E. That forensic task was not without its difficulties, but it was not impossible. The statistical information demonstrates that melanomas with low Breslow thickness are unlikely to have metastasized (either regionally (which is Stage III of the disease) or distantly (which is Stage IV)). Of course, it is possible that even a thin melanoma has metastasized, but the plaintiff needed only to show on the balance of probabilities that his had not.