THE CANTERBURY HOSPITAL vy CAPPELLETTO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 17 and 18 April 1991, 17 May 1991 [1991] NSWCA 44 NEGLIGENCE — medical negligence alleged misdirection of jury whether evidence to sustain verdict — held: No error. DAMAGES — proper approach to excessive general damages but on reassessment economic loss component increased — verdict stands — Robinson v Riley [1971] JURY — components of verdicts. Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 distinguished. NEGLIGENCE — medical negligence — women patient at public hospital undergoes removal of gall bladder — develops bleeding at operation and thereafter — treated for pulmonary embolism — major bleeding causes crisis and debilitation candidiasis results from extended treatment — candidiasis causes near total blindness — patient sues hospital and honorary surgeon who supervised operation and subsequent treatment — trial before Loveday J and jury — jury dismisses claim against honorary surgeon — awards $493,750 against hospital for negligence — on appeal — held: (1) There was no misdirection to the jury by the trial judge on the allegations of negligence relied upon by the patient; (2) There was evidence upon each of the grounds left to the jury of negligence which it was open to the jury to conclude was causally related to the debilitation which caused the condition resulting in blindness; (3) There was no such inconsistency between the jury's verdicts in favour of the surgeon and against the hospital as to require judgment for the hospital or a retrial; (4) It was open to the jury, and available in the evidence, to find in favour of the surgeon but against the hospital upon that ground of negligence which related to the critical failure of the hospital staff (other than the surgeon) to provide prompt attention when the patient demonstrated frank haemorrhage which indicated to reasonable medical opinion the urgent need for a change of treatment, which change was delayed; (5) Accordingly, the judgment in favour of the patient, as entered following the jury's verdict, was sustained and would not be disturbed. DAMAGES — jury verdict — patient in public hospital suffers blindness following severe debilitation after treatment found to have been negligent following gall bladder operation jury returns verdict of $221,000 for economic loss and $250,000 for general damages — appeal by hospital — held: (1) On appellate review of a jury's verdict, the Court must assume that the jury took the view of the evidence most consistent with the size of the verdict it returned. Project and Properties Limited v Rraft (1975) 135 CLR 651, 652 applied; (2) It was open to the Court to draw inferences as to the manner in which the jury had reached its verdict from the answers the jury gave to questions designed to elicit a basis for the calculation of interest. Otis Elevators Pty Limited v Zitas (1986) 5 NSWLR 171; Quin v Rockla Concrete Pipes Limited (1986) 6 NSWLR 586 and Cousins v Bradford Kendall Foundries Pty Limited (1986) 7 NSWLR 428 considered; (3) On the basis of the jury's disclosure of the component for general damages ($250,000) that amount of the verdict was disproportionate even to the losses proved having regard to the range of such verdicts for young quadriplegics, etc; (4) Nevertheless, the amount allowed by the jury for economic loss was inadequate having regard to the needs for intensive familial assistance to the plaintiff; (5) On reassessment of damages by the Court of Appeal the same aggregate judgment would be entered; Robinson v Riley [1971] 1 NSWLR 403 applied; (6) Appeal dismissed. 2 UNREPORTED JUDGMENTS JURY — verdicts of — answer to questions concerning economic and general damages components — whether available to be considered in judging the reasonableness of the verdict — held: Having regard to the fact that the jury voluntarily announced its assessment for the two component parts mentioned, it was open to the Court to consider the jury's answers and the manner in which it delivered its verdict. Otis Elevators Pty Limited v Zitis (1986) 5 NSWLR 171; Cousins v Bradford Kendall Foundries Pty Limited (1986) 7 NSWLR 428 referred to. Kirby P For the reasons stated by Clarke JA, I agree that the appeal against the judgment entered in favour of Mrs Cappelletto following the jury's verdict should be dismissed with costs. Mahoney JA The defendant hospital appealed against the judgment in this proceeding both in respect of liability and in respect of damages. 1. Liability: The facts and the issues argued are detailed in the judgment of Clarke JA which I have had the advantage of reading. I shall state shortly the reasons why I am in general agreement with what his Honour has said in this regard. The submissions for the hospital dealt in the main with two matters: (a) whether there was evidence on which the jury could find that the hospital was negligent in its treatment of the plaintiff so as to justify the judgment; and (b) whether there should be a new trial because of, as it was submitted, an inconsistency between the judgment against the hospital and the judgment for Dr Claxton. (a) These submissions went both to negligence and, in part to causation. I agree with what has been said by Clarke JA in relation to the submissions as to causation. I shall therefore confine what I say to the issue of negligence. The plaintiff's claim was that the hospital was negligent overall in its treatment of her and, in addition, she instanced the four matters detailed by Clarke JA as particular instances of negligence. There was, during argument, discussion of what was or must be the basis of a plaintiff's claim in a case such as this. I do not wish to preclude the possibility that a claim may be made by a plaintiff, treated as the present plaintiff was, that overall the standard of care given to her was less than the law of negligence requires. It was submitted for the present plaintiff that she had at all times maintained such a case. But, in my opinion, special cases apart, a defendant hospital in these circumstances is entitled to know and have specified what are the breaches of the duty of care which are to be alleged against it: it is entitled to have specified with the particularity which the circumstances will admit of the acts or omissions of which the plaintiff will complain. This is so because, inter alia, in a case such as this what is in issue is whether the hospital departed from the standard of care which at the particular time and in the particular circumstances, was required of it. (It is not necessary to frame precisely the standard of care required: that has not been in issue in the present appeal). And accordingly, special cases apart, a plaintiff will not succeed unless she proves that, in respect of the acts or omissions which have been particularised or the relevant ones of them, the hospital has been in default. I have detailed these matters because of the bearing which, I think, they have upon, as I shall describe it, "the inconsistency submission". URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Mahoney JA) 3 Four particulars of acts or defaults were given. It is not seriously in contest that, in respect of the first three of them, there was evidence on which the jury could find the hospital in default. In respect of the fourth, it was, as I understand the submissions, argued that there was no evidence to warrant the conclusion that there was negligence and/or the conclusion that such negligence caused or relevantly contributed to the condition of the plaintiff's eyes. The fourth particular alleged that the hospital was negligent in failing to diagnose the plaintiffs post-operative haemorrhage earlier than it did on 12 June 1981 and in failing accordingly to cease intravenous Heparin treatment and to reverse its effect by another drug earlier than was done on that day. The facts as they emerged at the trial are detailed in the judgment of Clarke JA. It was open to the jury to conclude, as no doubt they did, that the plaintiff's condition on 11 and 12 June 1981 and for some days prior to that time was one of haemorrhage rather than, as the defendant hospital had thought, vein thrombosis and pulmonary embolus. Her condition undoubtedly became much worse on 11 and 12 June 1981 and it was the failure correctly to diagnose the haemorrhage at that time which was in particular in question. Having had the benefit of the expert opinions upon the course of the plaintiff's treatment in general, it might have been thought by the objective lay observer that the jury could have formed the conclusion that the haemorrhage should have been diagnosed earlier than it was at that time. There was evidence, from Dr Thompson and, I think, from Dr Claxton and others, from which the jury might have been thought by such a person to be able to form the necessary judgment of the hospital's default. But, as I understand the submissions, it was put by Mr Sperling QC, for the hospital, that such a judgment could not be made in the absence of expert medical opinion and there was no such opinion. The submission generally was to the effect that, whilst Dr Thompson had spoken in the plaintiff's favour in relation to the other three matters particularised, he had not said that the failure to diagnose the haemorrhage as complained of in the fourth particular indicated the lack of appropriate care by the hospital. The thrust of the submission included that the indications of haemorrhage rather than thrombosis and embolus were matters on which expert medical evidence was necessary, that expert medical evidence was necessary to support any conclusion that what was seen should have indicated haemorrhage, and that therefore the jury could not properly base their finding of negligence upon this fourth particular. I do not think that the effect of that submission should be accepted. I shall assume that, where a plaintiff urges that the failure in given circumstances to diagnose the condition complained of is a breach of a medical duty of care, there must be evidence from which the conclusion can be drawn that the appropriately competent doctor would at the relevant time have drawn that conclusion. But it is not necessary that there be, for example, a specific question directed to that matter and a specific answer given. The present issue did not arise in isolation. It arose against the background of the treatment of the plaintiff by the hospital over a substantial period. And detailed medical opinions were expressed in relation to various aspects of the plaintiff's symptoms and condition. There was, for example, evidence as to whether, in respect of the periods referred to in the second and third particulars, viz, 5 to 11 June and 11 June the necessary indication that Heparin should not have been administered and/or that there was then internal haemorrhage following the plaintiff's surgical treatment. The jury 4 UNREPORTED JUDGMENTS was, in my opinion, sufficiently informed of the medical aspects affecting those matters and it was, even in the absence of evidence in terms, open to them to draw the conclusion which, I think, they did in respect of the fourth particular. Similarly, the jury could in my opinion conclude that the failure to diagnose haemorrhage as alleged, with the consequent continuation of intravenous Heparin, contributed significantly to the plaintiff's state of debility and so contributed to the fungus condition from which ultimately she suffered. (b) I come now to the inconsistency submission. This was to the following effect: the jury found against the hospital but for Dr Claxton; the defaults upon the basis of which the hospital was held liable were all defaults of Dr Claxton or for which he was responsible; therefore to find against the hospital but for Dr Claxton involved relevant inconsistency and accordingly miscarriage of the trial and there should be a new trial. Mr Jackson QC, for the plaintiff, submitted that there were defaults by other persons in respect of each of the four matters particularised and that the jury could have found Dr Claxton was not but the other staff were in default in respect of those matters. On that basis, it was submitted, the jury could have properly found as it did. There were other medical staff involved in the plaintiff's treatment in respect of the first three matters particularised. However, if it be proper to form a judgment upon the matter, I think it was quite unlikely that the jury would have found the hospital liable but Dr Claxton not, in respect of these matters. But it is not necessary for me to determine whether it is permissible to draw inferences in respect of the jury's judgments in this regard. The jury's verdict can, I think, be explained in a way which does not involve any relevant inconsistency. The jury could, in my opinion, have found that defaults which occurred in relation to the fourth particular, the failure to diagnose the haemorrhage earlier on 11-12 June 1981, resulted from the lack of appropriate care on the part of other persons. Reference was made, in the evidence and, as the court has been given to understand, in the addresses, to the involvement of a specialist physician and of resident medical officers. Comment was made upon the fact that they were not called to give evidence. And the medical records indicate that, for a period, the default in diagnosis was the default of persons other than Dr Claxton. In this regard, Dr Claxton failed to diagnose the haemorrhage, but his failure took place at what, in the urgency of the circumstances, was a significantly later time. It was therefore, in my opinion, open to the jury to find on the fourth particular against the hospital by reason of the negligence of staff other than Dr Claxton. And, as the court is given to understand, that was one of the options which the conduct of the case left open to the jury. For these reasons I am generally in agreement with the judgment of Clarke JA upon the issue of liability. 2. Damages: Two questions arise: (a) whether this Court should act on the basis that the award for general damages was $250,000; and (b) (if it may) whether such an award is appealably excessive. (a) The court knows, from what the jury did, that it assessed general damages at $250,000. It would, in my opinion, be wrong for the court to act upon the basis that it did not know that fact. There are, as the cases cited by Clarke JA in this regard indicate, circumstances in which, when the courts proceeded upon the principles evolved by the Court of King's Bench, the court on appeal would not act on any basis other than that disclosed by the formal judgment, or at least the URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 5 formal verdict, which was given. But this Court does not proceed simply upon the principles which regulated courts when law and equity were separately administered. The procedure now adopted is more akin to that which operated in the Chancery Division in England. There are, of course, reasons why restrictions are imposed upon the examination of what has been done by juries and of the form of their verdicts. Those reasons go, I think, not to mere history but to the maintenance of, for example, the confidentiality of the deliberations of the jurors and the need to ensure the finality of their verdicts. But none of these principles is infringed by the court, in the present case knowing the amount which the jury awarded for general damages. I see, therefore, no reason why the court may not know that this was $250,000. (b) This Court will set aside as excessive an amount awarded by a judge where it will not set aside the verdict of a jury. The court may examine the composition of a judge's verdict and the reasons for it in a way which is not available in the case of a jury. If a judge had awarded $250,000 for general damages, I would have set it aside as appealably excessive. In the case of a jury, the court must assume the facts to have been found in favour of the plaintiff to an extent which ordinarily will not be assumed in the case of a judge's verdict. It is proper, therefore, as Mr Jackson QC has submitted, that the court assume that the jury found for the plaintiff the worst future open on the evidence. They may, for example, have placed weight upon the evidence as to the plaintiff's psychiatric condition and, absent any attack upon the reasonableness of what she has done, have assumed it unlikely that she will undertake further surgical treatment upon her eyes. Had the jury's verdict not been particularised as it was, I would not have held the quantum of the award beyond what the jury could have given. Having regard to the basis on which the case proceeded and the itemisation of the aspects of the plaintiffs loss, I would have thought that the amount appropriate to be awarded for the future care of the plaintiff was or could have been substantially more than, on the facts now known, the jury must have awarded. Clarke JA has detailed the evidence in this regard. If the plaintiff's son marries, as he intended to do, it would be appropriate for daily care to be provided for the plaintiff beyond what, on the facts as now known, the jury apparently awarded. This is particularly so if the possibility of the plaintiff's husband's health deteriorating is taken into account. I shall assume that, standing alone, $250,000 is appealably excessive as an award of general damages. But, having regard to the manner in which the appeal has been conducted and what counsel have said, it is in my opinion appropriate for this court to reassess damages. Upon that basis, I agree with the judgment of Clarke JA and with the orders which he proposes. Clarke JA Emilia Cappelletto, the respondent (I shall describe her as "Cappelletto") was admitted to The Canterbury Hospital, on 2 June 1981 prior to being submitted for a cholecystectomy, that is, the operative removal of a diseased gall bladder. The operation was duly carried out on 3 June by Dr Collits, a surgical registrar at the hospital under the supervision of Dr Claxton, who was a defendant at the trial but is not a party to this appeal (I shall refer to him as "Claxton"), an honorary surgeon at the hospital. At the operation Cappelletto bled internally and this bleeding did not respond to sponging. However, Claxton believed that after carrying out a further procedure he finally stopped the bleeding. He then arranged for a haemovic drain and a material called spongistan 6 UNREPORTED JUDGMENTS to be inserted into the abdomen in accordance with the usual procedures. His view was that at the end of the operation Cappelletto was as well as could be expected. Thereafter her condition deteriorated quickly and significantly. That is evidenced by the fall in her blood pressure. Immediately after the operation her blood pressure was 140/90. Within an hour it had reduced to 90/60 and then moved further down to 60/40. Claxton described this as a catastrophic fall in blood pressure. She was then moved to intensive care and a presumptive diagnosis of septicaemia was made. She remained in intensive care until 7 June when, because it was felt that she had substantially recovered, she was returned to the ward. Between that time and 11 June it was considered that she was improving. On the latter date she complained of pain in the chest and in the leg. Claxton thought she was suffering from pulmonary embolism and took what he regarded as appropriate action. The next day she suffered a massive haemorrhage. She was submitted to two laporotomies at the Hospital during which an endeavour was made to stem the flow of bleeding. These were not successful and later on 12 June she was transferred to Royal Prince Alfred Hospital where she had a third laporotomy. She was at this stage desperately ill. Her stay in Royal Prince Alfred Hospital was a lengthy one. She was not discharged from that hospital until September 1981. Some time before the middle of July she noticed difficulty with her sight and an opthalmic surgeon, Dr Taylor, was called in. He concluded that she was suffering from candidiasis and operated upon her in an endeavour to improve her vision. He was unsuccessful and when she emerged from hospital she was suffering from a marked degree of blindness. Later cataracts developed as a complication of the candidiasis and the effect of these was significantly to impair her remaining vision. Cappelletto sued the Canterbury Hospital (I shall call it "the Hospital") and Claxton asserting that they were each negligent in their treatment and care of her, as a consequence of which she suffered from candidiasis which left her almost blind. At the trial both defendants accepted that the candidiasis was causally linked with her life threatening episode on 12 June but denied that that had resulted from any negligence on their parts. Their case was that treatment had been provided which appeared completely appropriate at the time. At the conclusion of the trial the jury found in favour of Claxton, in favour of Cappelletto against the Hospital and assessed her damages at $471,000.00. The trial judge then determined that Cappelletto was entitled to interest in the sum of $22,750.00 and ordered that judgment be entered in favour of Cappelletto against the Hospital in the sum of $493,750.00. The Hospital has appealed from that judgment. Before turning to the appeal I should mention two matters. First, it should be noted that although Cappelletto appealed against the jury verdict in favour of Claxton she withdrew that appeal when the proceedings opened before this Court. Notwithstanding, and this is the second matter, Mr Sperling of Queen's Counsel announced that he appeared for the Hospital and Claxton. He did so because in his view there was a possibility that if he was successful in persuading the Court that there should be a new trial of the action on the issue of liability the Court may determine that the new trial should involve Claxton even though the jury had found in his favour. At that stage no ruling was given on the right of Mr Sperling to appear for Claxton, who was not a party to any appeal before the Court, and in the event no tuling is now necessary. URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 7 I return to the appeal brought by the Hospital. It involved both liability and damages. The jury verdict in favour of Cappelletto were challenged on two substantive grounds. In the first the Hospital sought judgment upon the basis that it was possible to infer from the verdict of the jury that it had found against the hospital upon a ground of negligence upon which it was not open to them to find for Cappelletto. To put it another way the trial judge had wrongly ruled that there was evidence of one head of negligence causally connected with Cappelletto's damage and, as this was the only head of negligence on which the finding in favour of Cappelletto could be supported, the Court should now enter judgment for the Hospital. The submission was a relatively complex one and it will be necessary for me to explain it in more detail later. In the alternative the Hospital sought a new trial upon the basis of misdirections on the part of the trial judge which led to a miscarriage of justice. Before embarking upon a consideration of these issues it would be helpful, I believe, for me to say something more about the condition of candidiasis and the events which occurred between 3 and 12 June 1981. Candida Albicanis is a fungus, also known as thrush, which is normally found in the mouth and the gastro-intestinal tract. It is normally not invasive, in the sense of entering the blood stream, unless there are some very abnormal circumstances. These statements come from the evidence of Dr Thompson from which source I have also taken what follows. Patients who are immuno suppressed with various illnesses may get candida; very prolonged major antibiotic treatment predisposes people to candida; where the normal bacteria in the bowel are killed off the candida may grow; people with diabetes are pre disposed to candida, and multiple breaks in the skin from needle punctures, operative procedures, cannuale (fine tubes put into blood vessels for blood transfusions), are means whereby candida may get into the blood stream. Steroids or cortisone in high doses or prolonged dosage predisposes a person to candida. Candida can, however, be treated although if the patient is extremely debilitated, and this is the critical factor in this case, then the condition is difficult to treat. According to Dr Taylor the likely cause of the introduction of candida into the blood stream of Cappelletto were indwelling catheters or needles. The following question and answer, which was furnished by Dr Thompson, are relevant to the particular circumstances of this case: "Q. On the face of it, if Mrs Cappelletto had been diagnosed as having a post-operative haemorrhage on the 3 or 4 or even 5 of June and had the events occurred as you have indicated, namely, she would have been delayed in hospital a few days and so forth, what in your view would have been the possibility if any of this Candida getting in or, having got in, having taken hold? A. Well I believe it would have been very much much less likely or very unlikely. It is a very rare complication." It will be seen that the thrust of the evidence was that candida could be introduced into a persons blood stream by needles or indwelling catheters and the other procedures I have mentioned but the development of serious consequences from the condition is a rare complication. In this respect a critical factor is whether the person is debilitated or not. The effect of the debilitation is that it makes the condition very difficult to treat and leads to the possibility of the development of the rare complication. There was no dispute about these matters at the trial. 8 UNREPORTED JUDGMENTS What Senior Counsel for Cappelletto said was that the negligence of the hospital and Claxton led to Cappelletto becoming extremely debilitated. As a consequence she suffered this rare complication. Senior counsel for both defendants accepted that the subsequent blindness was causally related to the debilitation but joined issue on the question whether the debilitation, and there was no doubt that Cappelletto was debilitated for four or five days post operatively and extremely debilitated on 11 and 12 June and subsequently, resulted from negligence. The critical question which then confronted the jury was whether any negligence in the treatment and care of Cappelletto by either the hospital or Claxton, or both, led to her becoming debilitated. In the result the jury's answers to the questions submitted demonstrated their satisfaction that negligent care and treatment by the hospital had contributed to Cappelletto's debilitation. On the other hand it was not satisfied that Claxton had negligently contributed to that condition. Let me now deal with the course of Cappelletto's stay in the Hospital. I have already referred to the dramatic drop in Cappelletto's blood pressure following the operation. The hospital notes also indicate that at various stages on 3 June the nurses were unable to detect any pulse and that blood tests taken on that day demonstrated that her haemoglobin was moderately low at 11.1. In the succeeding few days Cappelletto developed a mild, but not significant, fever and her haemoglobin continued to decrease. Dr Thompson, who gave evidence in Cappelletto's case, expressed the opinion that between 3 and 5 June she had suffered from a major intra-abdominal haemorrhage and gave these reasons for that opinion: ".. the signs would be the very marked lowering of the blood pressure and the prolonged lowering of blood pressure which was over three, four hours or more and the lack of fever, the rapid fall in haemoglobin, the raised white count..." He also stated that diagnosis should have been made on the material which he identified in these terms: "\.. the blood count in the afternoon of the 3rd,... and there really is no other explanation for the fall in the haemoglobin, but with the high white cell count I could see there would be difficulties in diagnosis, but by the next day I think it is, (that is, the 4th) with the further fall in haemoglobin and she has also had a lot of intravenous, quite a lot of intravenous bleeding by that stage apart from blood pressure, but certainly by the results of the haemoglobin at 8.5 I don't believe there could have been any other explanation but haemorrhage." The treatment which this condition indicated, in the doctor's opinion, was a further laparotomy to ascertain where the bleeding was coming from, and the ligation of the bleeding blood vessel or vessels. Claxton gave evidence that the symptoms, the most relevant of which I have set out, did not indicate haemorrhage rather septicaemia. This was the first point on which the parties were clearly at issue. Cappelletto's case being to the effect that, even at this early stage, the Hospital and Claxton had carelessly failed properly to diagnose her condition and to repair the source of her haemorrhage. Her counsel also argued that what followed later was coloured by the early failure to appreciate the likelihood of a haemorrhage. Indeed it is, I think, fair to say that those responsible for Cappelletto's treatment totally disregarded the possibility of haemorrhage until the eleventh hour. When her condition had settled down somewhat by 5 June she was placed on what was called a prophylactic dose of Heparin This drug is used to minimise clotting of the blood and is normal treatment for a person confined to bed for any URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 9 lengthy period, its purpose being to prevent vein thrombosis and pulmonary embolus. The doctor who placed her on the Heparin regime, which was administered subcutaneously at a rate of 15,000 units a day was a resident named Dr Lee who, it seems clear, had rejected the possibility that haemorrhage may have been the cause of Cappelletto's problems prior to the Sth. In Dr Thompson's opinion Cappelletto should not have been placed on Heparin on 5 June. Quite apart from his opinion that the signs were indicative of haemorrhage there were indications from the Hospital records, such as "blood in gut', which suggested that someone on the medical staff knew, or ought to have known, that there may well have been critical bleeding. In any event Dr Thompson observed that even a low dose of Heparin can induce haemorrhage and that in circumstances where there may well have been a recent large haemorrhage it would 'be very hazardous to give Heparin even in low doses'. Notwithstanding that Heparin was administered in low dosage Cappelletto appeared to settle and the prophylactic Heparin regime continued until about 10 pm on 11 June. It was stopped then because of intervening events. Early on the morning of 11 June Cappelletto was seen by a resident doctor at the request, presumably, of the nursing staff because she was again suffering from hypotension. Her systolic blood pressure had dropped from 130 to 80 which was very low. The resident doctor recorded in the notes that she had been 'reasonably well till last night when she developed right anterior mammary pain, sharp and severe'. She was again very sick although she did not have a high fever. He recorded in his notes a number of observations the first of which was that she may have a pulmonary embolism. This was, according to his note, contra indicated by the fact she was not cyanosed (she wasn't blue). In addition he noted that there was no tachycardia (rapid heart rate) and no shut down (the blood vessels on the surface of the body had not contracted). Claxton explained these findings as being inconsistent with a very severe pulmonary embolism but not necessarily an indication that there was no moderate embolus. The second possibility he considered was sepsis but he thought that was contra indicated as she was not febrile. The third possibility was a heart attack but he noted no evidence of that. The fourth possibility, according to the resident, was haemorrhage but there was no indication of an acute blood loss and the final possibility was a steroid withdrawal collapse. He then appears to have prescribed treatment as though there was am embolus and, in addition, sepsis. I need not concern myself with the second regime of treatment but the first is of critical importance. He thought she should be "fully Heparinised" and believed that she should have a PTTK test during the morning and a lung scan. There was a problem about a lung scan insofar as the hospital did not have facilities to administer one and, in the even, arrangements were made for her to undergo a lung scan on the morning of 12 June. There were, however, no problems about the PTTK test which was a fairly routine test to determine the major coagulation factors in the blood and whether they were such as to render it hazardous to administer large doses of Heparin. Despite the availability of the procedure and the doctor's opinion no PTTK test was arranged for 11 June. Claxton saw her later that day and concluded that she probably had deep vein thrombosis with pulmonary embolus. As she had been on Heparin to prevent thrombosis occurring Claxton must have been somewhat surprised. In evidence 10 UNREPORTED JUDGMENTS he said that the development of a thrombosis simply meant that the blood was still tending to clot more easily than normal. In view of his conclusion he instructed the commencement of a therapeutic intravenous regime of 30,000 units of Heparin per day. A PTTK test was then arranged to take place on the following day. In Dr Thompson's view the conclusion that a pulmonary embolus had occurred was surprising in the light of the history to which I have referred which history rendered it imperative to have a PTTK test carried out before embarking on a therapeutic dosage of Heparin. In any event Cappelletto was returned to intensive care where she immediately fell asleep. When she woke she found that she was bleeding in the region of the wound. The Hospital records indicate that this occurred about 11 am when there were "copious amounts of haemoserous discharge". Again at 1 o'clock when further dressings were applied the same observation was made. At 4 pm she was seen by Dr Collits who treated the discharging area as a superficial wound and applied four stitches. In Dr Thompson's view the discharges were clear clinical indicators that there was a coagulation disorder, and more particularly, that Cappelletto had an increased tendency to bleed with prolonged bleeding time. He was of the opinion that the anti coagulation screens (PTTK test) should have been carried out at that time (ie 1 pm) at the latest. Furthermore, he expressed the view that if the results had indicated an excessively high degree of anti coagulation with the bleeding "the Heparin would have been stopped and they (the doctors) would have made the attempts to reverse the effects of the Heparin". Of course, the test was not carried out nor the Heparin stopped. On the contrary the prophylactic regime of Heparin was continuing, and did so until 11 pm, and the therapeutic regime was also being administered. I should add in this context that once the condition which Dr Thompson believed was present on 11 June is diagnosed in a patient then the drug Protamine is administered. It reverses the effects of Heparin and does so quickly, that is within an hour or less. The next significant event was the visit by Dr Flynn, the resident, at 5 am on 12 June. Cappelletto was then nauseated, vomiting and complaining of abdominal pain. At 7.20 am she was hypotensive, her blood pressure was extremely low at 45/30. She was cold, clammy and restless and resuscitation was attempted. Her consciousness level decreased and at 8 am her pulse was 160 and by then she was presenting, according to Claxton, as a typical picture of "the shock that you get when you have a major bleed". Claxton saw her at 9 am and observed that she had quite suddenly become profoundly shocked and unconscious. After about one hour she was taken to the operating theatre where a laparotomy was carried out. Cappelletto's case, which was supported by Dr Thompson, was that she had been presenting with signs of internal haemorrhaging right from the time of the first crisis. Although the signs were more obvious on particular occasions they were quite definitely there in the days prior to 5 June and presented as very strong indicators on 11 June. Notwithstanding, the hospital and Claxton failed to recognise these signs until, it seems 8 am on 12 June and even then very little of consequence was done until Claxton arrived and he took steps to save Cappelletto's life. Her case, therefore, was that both defendants had failed to take reasonable care of her throughout the duration of her stay. URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 11 I should add to this summary of evidence which it was open to the jury to accept the observation, by way of emphasis, that there was no doubt that Cappelletto had been in an extremely debilitated condition on the occasions on which she was placed in intensive care and it was clearly open to the jury to accept that that condition resulted from treatment sustained in the hospital. Indeed, in one sense there was no dispute about this. Her case was that she had been debilitated on a number of occasions during her stay in the hospital as a consequence of the administration of incorrect treatment. The defendants' case was that the therapeutic regime of Heparin was clearly indicated on 11 June, that Claxton was faced with a very difficult decision and believing that Heparin needed to be administered as a matter of life and death gave the order for the commencement of the therapeutic regime and that, unfortunately and without any negligence on the part of Claxton, the heavy doses of Heparin brought on a haemorrhage which led to the extreme debility. It is convenient to deal with the submissions concerning the alleged misdirections before turning to the judgment point. In adopting this course I am following the example of counsel who thought, correctly in my view, that this was the most logical way of attacking the problems arising in this appeal. Cappelletto's case was that she was in reasonably good health and had been admitted to hospital to undergo a reasonably routine operation after which, if proper care had been given, she would have been discharged from hospital in good shape. However, the treatment and care provided by the hospital and Claxton was so inadequate that she became severely debilitated and as a consequence suffered the disastrous effects of candidiasis. In his summing-up the learned trial judge, Loveday J, focused on what he described as four headings, or allegations. He recognised that Cappelletto's counsel had not put the case in precisely this manner but considered that his division of the claim into the four headings accorded broadly with the submissions made on her behalf. The four headings were as follows: (1) Failing to diagnose and to treat Cappelletto for post operative haemorrhage on or before 5 June 1981. (2) Administering subcutaneous Heparin from 5 to 11 June 1981. (3) Administering intravenous Heparin on and from 11 June 1981 without investigations, specifically lung scan and a PTTK test, or both (this heading included the allegation that there had been an incorrect diagnosis of deep vein thrombosis and pulmonary embolus. (4) Failing to diagnose post operative haemorrhage earlier than was done on 12 June 1981 and failing to cease intravenous Heparin and to reverse its effect by administering Protamine Sulphate earlier than was done on 12 June 1981. During the hearing in this Court the argument focussed on those four headings. Senior counsel for the hospital conceded that there was evidence of negligence in failing to carry out an laparotomy on or before 5 June 1981 and also that it was open to conclude that a laparotomy conducted then would have, on the probabilities, avoided the onset of candidiasis. Accordingly, he conceded that there was no misdirection in leaving the first head of negligence to the jury. Of course it does not follow that the court will disregard this early stage of Cappelletto's hospitalisation in considering the question whether it was open to the jury to find that the debility resulted from negligence on the part of the hospital at later stages. 12 UNREPORTED JUDGMENTS What Dr Thompson said was that there were clear indications that Cappelletto was haemorrhaging prior to 5 June and that if that due care had been exercised she would have been submitted to a laparotomy at that time and the leaking blood vessel ligated. In the light of this evidence it was open to a jury, whether or not they believed there was negligence at this stage of the treatment, to conclude that the doctors had failed properly to diagnose Cappelletto's condition with the consequence that the weakness in the blood vessel, or vessels, which had caused the bleeding had not been repaired. The erroneous diagnosis, which it was open to the jury to accept, was also, in my view, of some relevance in determining whether later reviews of the case when Cappelletto's condition was becoming critical and the consequential procedures themselves reflected a failure to measure up to the appropriate standard of care. Counsel for the appellant also conceded that there was evidence of the second head of negligence relied upon but denied that there was any evidence of a causal nexus between such negligence and Cappelletto's debility. It was therefore, according to this argument, a misdirection to leave to the jury the second head of negligence. Heparin is a naturally occurring substance which has anti-clotting properties and is given either to treat clots or given in low dosage to prevent thrombosis. Because of its anti-clotting properties it should not be administered, according to Dr Thompson, to a patient who is haemorrhaging. Although this may appear self-evident it is helpful to refer to Dr Thompson's reason for expressing that opinion. What he said was: "Well, in the presence of haemorrhage, and at that stage it wasn't certain whether the haemorrhage had ceased, Heparin can aggravate bleeding, excessive Heparin can induce haemorrhage of itself, even with low dose Heparin and if there has been a recent large haemorrhage it would be very hazardous to give Heparin even in low doses." This evidence clearly explains the concession by senior counsel for the hospital that there was evidence of negligence upon which the jury could have found against the hospital on this ground. But, he submits, the evidence also demonstrates that the effects of the low dose of Heparin had ceased prior to any crisis developing so that there was no relevant nexus between the prophylactic dosage of Heparin and the debilitation. His argument took the following course. The prophylactic, or low dose, regime of Heparin was stopped at about 11 pm on 11 June; its effect would have continued for only an hour or so; the first signs of the massive haemorrhage which occurred on 12 June 1981 did not appear until 5 am on 12 June and therefore could not have occurred as a consequence of the administration of the prophylactic regime. The reason for this is straightforward - the effects of the low dose Heparin had ceased and could not be implicated in the later haemorrhage. For my part this is far too narrow a view of the case. It proceeds upon the basis that it was proper to separate Cappelletto's case into four compartments and to analyse each of those compartments in isolation. The course of Cappelletto's treatment in hospital which I have already recorded demonstrates that her condition deteriorated sharply on the morning of 11 June. It was, in my view, open to a jury to conclude that that deterioration resulted in part, at least, from the continued administration of the prophylactic regime of Heparin. Although this was disputed by counsel for the appellant the reasons I express later, when dealing with the third head of negligence, persuade me that, in the light of Dr URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 13 Thompson's evidence that if there were any tendency to bleed the Heparin would aggravate that tendency, it was open to conclude that the low dosage of Heparin played a part in the deterioration noticed on 11 June. She was readmitted to the intensive care ward on this occasion and there can be little doubt but that she was severely debilitated at this time perhaps not as severely debilitated as on 12 June - and was therefore more vulnerable to the effects of the candida. The hospital's submissions took the same line in relation to the third head of negligence. It conceded that there was evidence upon which the jury could have concluded that it had acted carelessly in administering intravenous Heparin on 11 June without administering a lung scan and a PTTK test or both but submitted that the causal link between this carelessness and the damage had not been shown. Two propositions were advanced in support of this argument. First, that there was no evidence that a lung scan would probably have excluded pulmonary embolus, or that a PTTK test would probably have shown Cappelletto was excessively anti coagulated. The second proposition was that there was no evidence that a reasonably careful medical practitioner would, in a difficult and complex situation which was present on 11 June, have declined to administer Heparin even though its use was contra indicated by the severe level of anti coagulation which the test might have demonstrated. In my opinion the first proposition has no substance. There was nothing, apart from the allegedly negligent diagnosis of pulmonary embolus and thrombosis, which supported the presence of that condition. Indeed at operation a condition was discovered, haemorrhage, which explained the crisis on 11 June. In these circumstances and as no embolus was ever found it was, in my view, open to the jury to infer that a lung scan would have excluded pulmonary embolus. The position with regard to the PTTK test is even clearer. When Cappelletto was submitted to that test on 12 June it was found tha she was severely anti coagulated. This alone would justify the inference that a test carried out the previous day would have demonstrated the danger of administering larger doses of Heparin. But there was, in addition, evidence of the findings at operation which placed that inference on even firmer grounds. Those findings were that there was old and new blood in the stomach - consistent only with bleeding extending over a number of days. The second proposition is answered by the evidence given by Dr Thompson to the effect that if a PTTK test had been carried out on 11 June and had demonstrated a excessively high degree of anti coagulation he believed that the Heparin would have been stopped. Once this evidence was drawn to Counsel's attention he abandoned this submission and conceded that there was evidence of the relevant causal nexus. Counsel's major reliance was, I think it is fair to say, upon the submission that his Honour misdirected the jury in leaving the fourth head of negligence to it. His argument was that there was no evidence capable of supporting that inference of negligence or the relevant causal nexus between any negligence and the damage suffered. It was submitted that it was not open to the jury to find that the large haemorrhage had commenced prior to 5 am. There was, it was said, no evidence upon which an inference could be drawn that the haemorrhage had occurred before that. The indication that an untoward event occurred shortly prior to 5 am was to be found in the hospital notes and in particular records signed by Dr Flynn, a resident doctor. 14 UNREPORTED JUDGMENTS He recorded that at 5 am Cappelletto was nauseated and vomiting; complaining of abdominal pain; was afebrile; and had generalised tenderness with rebound which was a sign of irritation of the peritoneum. According to Claxton the lastmentioned condition may have been caused by internal bleeding or a partially obstructed bowel. Counsel for the hospital accepted that in view of the later unequivocal finding of haemorrhage it was open to the jury to conclude that Cappelletto was suffering from the early effects of that haemorrhage when seen at 5 am. On the other hand there was no evidence, according to this submission, indicative of a haemorrhage at any earlier time on either 11th or 12th. Accordingly it could not be said that it was open to the jury to conclude that the Hospital staff was negligent in failing to discover the haemorrhage prior to 5 am. It was also contended that the finding that Dr Flynn should have recognised that Cappelletto was suffering from a haemorrhage at 5 am and was negligent in failing to do so was not open. Finally it was said there was no evidence of negligence surrounding the failure correctly to diagnose her condition before Claxton made the correct diagnosis shortly before 9 am. The second limb of this submission was that, even if the Court concluded that it had been open to the jury to decide that the failure to diagnose the existence of a haemorrhage before 9 am was negligent, there was no causal connection between that negligence and the severe debility suffered by Cappelletto. Once it was accepted that the signs exhibited by Cappelletto at 5 am were indicative of a haemorrhage it was as likely as not that she was then in a critically ill situation and the passage of approximately 5 hours between the early morning and the time of the first laparotomy was not shown to have led to any exacerbation of her condition. It would, in my opinion, be quite wrong to consider these submissions in isolation. Indeed it is critical to an understanding of the force of the competing contentions on this issue to know more about the events of 11 June and the critical situation which led to Cappelletto being returned to the intensive care unit. At 8 am on 11 June Cappelletto was seen by Drs Booth and Croxson. She was then complaining of chest pain and calf tenderness. Her systolic blood pressure was again very low being measured at 80. She was seen at 9 am by Claxton and her blood pressure was then 80/50. She appeared flushed and was hot to touch, was afebrile and sweaty. As I have earlier indicated questions were raised as to whether she had suffered from a pulmonary embolus, sepsis, possible infarction (heart attack) or steroid withdrawal. Ultimately, it was decided that she be placed on the therapeutic regime of Heparin and that she be transferred to intensive care. Claxton gave this evidence in examination in chief concerning the period between 9 am and 10 am on 11 June. "A. Well, I examined the patient and spent considerable time discussing with the other doctors what the - what her clinical condition might be and what course of action we should take. Q. What was going through your mind? A. Well, I was very concerned. It seemed to me that she almost certainly had pulmonary embolis. My heart dropped to my boots, I must say, because she had a difficult course, was now getting better and then this had happened. Well, almost certainly she had a pulmonary embolis. She was very ill. She was in a situation where she could easily die fairly quickly. However, the treatment for pulmonary embolism intravenous Heparin within doses we have discussed, but if you give intravenous URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 15 Heparin in a patient who had surgery only, what was it, nine days previously, there is a significant risk of haemorrhage, doesn't mean she will necessarily get it, but there is then an increased risk of haemorrhage over and above the patient who had not had an operation. We had to decide whether the risk of giving her the Heparin was greater than the risk of not giving it. If we hadn't done anything I think she would have died fairly soon. If we did do something we ran the risk, but it was not an enormous risk of bleeding. It seemed to me that the only course of action which was most likely to benefit her and the one, albeit very risky, which would benefit her was to give intravenous Heparin. There was nothing else I could do. Let her die or give her a chance to survive." Then in cross examination Claxton's attention was directed to the same issue and he gave this evidence: Q. Having come to the conclusion that she had a pulmonary embolism you had a patient who had spent three or four days in intensive care after the relatively routine operation of gall bladder removal? A. Yes, correct? Q. Suffering from a condition which, whilst you diagnosed it as septicaemia, was certainly exhibiting some strange and equivocal characteristics during that period if septicaemia was really happening? A. Yes. Q. Now you were confronted with a lady who you thought was on the way home and suddenly your heart drops to your boots because she has got, you think, a pulmonary embolism? A. Yes. Q. You fear haemorrhage if she is started on intravenous high dose therapeutic Heparin? A. Yes. Q. The indications of embolism were anything but clear, were they not? If I could just put a double question and tell me if you find it difficult. Some signs were there but it was far from a convincing embolism picture? A. I think the total picture was convincing. Medicine is like that. Q. Having made that decision there was available to you a scientific process, namely a lung scan which would confirm or deny the diagnosis, was there not? A. Yes. Q. You have told us on Friday that you regarded the choice of administration of intravenous Heparin as being, in effect, the lesser of two evils? A. Yes. Q. You were confronted with a life or death decision? A. Yes. Q. But it was only a life or death decision if in fact she had an embolism? A. Yes." Later during that day, at 11 am, | pm and, I think, 4 pm, it was found that she was discharging copious amounts of haemo serous fluid from her wound. Indeed the hospital notes include the two following entries for the two earlier times - "copious amounts of haemo serous discharge". A discharge of this nature was, according to Dr Thompson, a clinical indication that there was a coagulation disorder present at that time. Dr Thompson explained that in using the phrase "coagulation disorder" he meant an increased tendency to bleed with a prolonged bleeding time. In view of these indications it was his opinion that anticoagulating screens should have been done at that stage. If this had been done the results would have been known early in the afternoon as these tests are always done as a matter of urgency. Needless to say the tests were not done. Despite the unhappy history of Cappelletto's stay in hospital and the recurrence of very low blood pressure no one seems to have given serious consideration to the possibility of haemorrhage. All that Dr Collits did when he saw her at 4 pm was to insert four stitches in her open wound. 16 UNREPORTED JUDGMENTS It is illuminating to refer to Cappelletto's own evidence. According to her she discovered that she was bleeding from the wound shortly before Dr Collits arrived. When the nursing attendants responded to her call for aid they became concerned and strapped dressings tightly around her waist. She said that when the nurse paged Dr Collits she said, "Mrs Cappelletto is bleeding profusely". That was, of course, evidence which the jury could have accepted. The notes are somewhat sparse between 4 pm on 11 June and 5 am on 12 June but there is one note that at about 12.30 am she seemed somewhat improved. Ihave already set out what was discovered at 5 am but I ought to add that there was a note written which said "still passing facies (this word is indistinct), but vomiting bile stained blood". For reasons which did not emerge her blood pressure was not then taken. Dr Flynn who saw her at that time made some suggestions such as, "nil by mouth until reviewed by a surgeon" and noted she was unlikely to be fit to go to St George Hospital. She was, at this stage, a very sick person. Despite the fact that the previous day she had been so ill as to require return to the intensive care unit and had been the subject of a "life or death" decision by Claxton, despite the haemo serous discharge on 11 June and the vomiting on the early morning of 12 June no urgent steps were taken. I do not doubt that it is difficult to make arrangements for urgent responses to emergencies in the early hours of the morning but if a person otherwise healthy is dying such responses are essential. Here there was a critically ill patient who was, because of the administration of the therapeutic dose of Heparin, likely to suffer haemorrhage and had already shown signs of an increased tendency to bleeding. In these circumstances it seems to me to have been well open to a tribunal of fact to take the view that for those in charge of Cappelletto to fail to take urgent steps to discover and remedy the problem constituted a failure to measure up to the standards required. She was seen again at 7.20 am and by then her blood pressure was at the dangerously low level of 45/30. She was cold clammy and restless. Although some treatment was prescribed no thought seems to have been given to the possibility of haemorrhage and no steps were taken either to ascertain whether haemorrhage was the cause of her decline or to reverse the effects of Heparin. This was not a difficult procedure. It required only the administration of Protamine which neutralises the effects of Heparin within an hour or less. This was eventually administered on 12 June but not until 9.44 am. At 8 am she was seen again by Dr Flynn who noted a pulse of 160 and that she remained "shut down". This finding was a clear indication of haemorrhage but again nothing seems to have happened until Claxton arrived and saw her at 9 am. Claxton was, of course, asked about these matters in cross-examination and his evidence was illuminating: "Q. What happened was that from 5 in the morning this lady was showing signs which would have raised in your mind, had you been there, the fear of the very risk that you were running in administering Heparin, correct? A. Yes. Q. At 7.20 those signs included absolutely classic indications of internal haemorrhage, correct? A. Yes. They included some of those. Q. Dangerously low blood pressure? A. Yes. Q. She was shut down, she was peripherally shut down? A Yes Q. Her pulse was way up? A. Yes. URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 17 Q. And anyone looking at her then, bearing in mind what you say was the risk you weighed up, must have concluded that she was haemorrhaging? A. That would have been one of the diagnoses possible. Q. And if she had been, if that possible diagnosis you say had been arrived at at that time it was mandatory then to reverse the Heparin, was it not? A. If a diagnosis of Heparin bleeding is arrived at then the Heparin should be reversed immediately. Q. What other possible explanation than Heparin bleeding could there be, given that on your evidence she had not bled since 3 June and she had been started on intravenous Heparin in circumstances where you yourself say you had to make a life or death decision with haemorrhage the alternative? A. Well, the resident originally thought she had a sub-acute bowel obstruction. Q. Would you be good enough -- A. I am just indicating some of the other possible diagnoses. Q. They would only occur to somebody as an alternative diagnosis, they could only be entertained for a moment by somebody who had no been told to look out for the possibility of haemorrhage as a real significant risk of the Heparin? A. The resident must have known she was on intravenous Heparin. She was supervising her and she knew she had an operation ten days before." In this passage it is clearly spelt out that the resident medical officer must have known that Cappelletto was on intravenous Heparin and it was well open to a jury to conclude in the light of the evidence given in the case that it was well known that Heparin acted as an anti coagulant agent. In these circumstances it was also open to the jury to conclude that there was a real possibility that Cappelletto's critical illness resulted from haemorrhage which required urgent treatment. In my opinion the evidence concerning the occurrences on 12 June between 5 am and approximately 9.45 am when remedial steps were first taken, when considered in the light of the preceding history, provided adequate material upon which a jury could conclude that the hospital negligently failed to respond in a proper manner to a crisis which required urgent attention. Mr Sperling's next submission was that even if that conclusion be correct there was no evidence that Cappelletto became more susceptible to the candida infection, in other words more debilitated, as a consequence of the doctors and nurses failing to respond earlier to the critical situation which developed on 11 and 12 June. Questions of causation can often cause great difficulty. It may be that in a case where it is said that a negligent act was causally related to a specific and discrete incident that it is relatively simple to isolate those factors which tend either to prove or disprove the connection. In the present case the position is not so clear. Counsel for Cappelletto asserted that the negligent care and attention administered at the hospital allowed her to reach such a debilitated state that she became more vulnerable to her candida infection. No one in the case suggested that a particular level of debility was necessary before such vulnerability was demonstrated. Nor did anyone speak of standards of debility. The evidence simply was that persons who become grossly debilitated are much more vulnerable to the effects of the infection. It would appear relatively clear that she was in a debilitated state at 5 am on 12 June but, provided there was evidence of a significant deterioration and bleeding thereafter, it would be open to the jury to determine that she became far more critically ill and far more debilitated by the time of the operation at 10 am. If that finding was open then I do not think it can be gain said that it was also 18 UNREPORTED JUDGMENTS open to the jury to conclude that, on the probabilities, her extreme debilitation was a contributing factor which led ultimately to her blindness. To my mind the evidence certainly demonstrates that there was deterioration, and grave deterioration, taking place in those critical hours. There is absolutely no doubt that her blood pressure descended to an alarmingly low level at 7.20 am and remained at a low level for some time thereafter. In addition Claxton said that he thought she had just started bleeding at 5 am. When the laparotomy took place it was found that she had approximately two litres of blood in the abdomen and this was, Claxton accepted, a lot of free blood. If she had started haemorrhaging at 5 am and was found at 10 am to have two litres of blood in her abdomen it is not difficult to conclude that much of the bleeding occurred in the intervening period. Certainly a finding to that effect was open to the jury. During most of this time no attempt was been made to reverse the effects of the Heparin or, in other words, to remove the anti coagulating agent from the blood. Although there is force in the submission that her extreme debility resulted from the operations, the need for which was caused by the haemorrhage, it is incorrect to conclude that it was not open to the jury to reach the view that the failure to take appropriate steps much earlier than 10 am contributed to her debility in a significant way and was, in that sense, related to her ultimate blindness. I would accordingly reject the submissions that his Honour was in error in directing the jury in relation to the four allegations. In my opinion there was material upon which the jury could find both negligence and a causal nexus in relation to each of those four heads. I would, therefore, conclude that the appellant hospital is not entitled to a new trial on this ground. That brings me back to the judgment point which can, in the light of my conclusions, be shortly disposed of. What Mr Sperling said was that it could be inferred from the jury's verdict that in those instances in which the allegations were aimed primarily at Claxton the jury had found for Claxton and the hospital. Allegations A, B and C related to aspects of Cappelletto's treatment which were substantially, if not almost completely, supervised and controlled by Claxton and therefore it should be inferred that the jury found against Cappelletto in relation to those allegations. Allegation D was in a different category. There the case was directed against the medical staff of the hospital and not Claxton. Accordingly, this was the ground on which the jury must have found against the hospital. If that was a correct analysis then, insofar as there was no evidence to support allegation D, the jury's verdict could not stand. The reason for this is that it should be inferred that it had found for Cappelletto on a ground upon which it was not reasonably open to it to find in her favour. Although there are a number of difficulties with this submission it is unnecessary to explore them for the reason that the submission is based upon a determination by this Court that it was not open to the jury to reach its conclusion on Ground D. As I have reached the opposite conclusion there is no basis for the entry of judgment in favour of the hospital. My earlier findings indicate that it was open to the jury to find for Cappelletto on one or other or all the four allegations or headings of negligence and it follows that, even if the inferences for which Mr Sperling contends should be drawn, there is no basis upon which it could be said that the jury based its finding on an allegation which was not supported by evidence. URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 19 The hospital also submitted in the alternative that because of the close inter-relation between Claxton and the hospital the verdicts found by the jury were inconsistent and a new trial should be granted. This submission must fail if for no other reason than the appellant has failed to demonstrate any inconsistency as the jury's verdict can quite simply be explained on the basis that it decided for Cappelletto on Ground D. DAMAGES The jury in this case took the unusual course of answering a question designed to elicit its assessment of the damages by indicating that it assessed the economic component of damages in the sum of $221,000 and the general damages at $250,000. In those circumstances Mr Sperling submitted that the Court was bound to consider whether either or both the separate assessments were beyond the bounds of reasonable assessment and in the event that it was concluded that one or other was this Court should set aside the award. Historically the verdict of a jury would only be set aside if it was wholly disproportionate to the injuries, disabilities and losses of the plaintiff or, as it was put in Triggell v Pheeney, 82 CLR 497, at 516, in amount it is such that no reasonable body of men could have awarded it. In carrying out its supervisory function an appellate court is bound to assume that the jury took a view of the evidence most consistent with the size of the verdict it returned (Progress and Properties Ltd v Kraft, 135 CLR 651, at 672). In circumstances where the jury simply announces its verdict no question arises as to the manner in which the figure awarded by the jury is actually assessed. To question the jury in order to determine the manner in which its members had arrived at that assessment would be to contravene a long established legal policy not to enquire into the reasoning which lies behind a verdict. With the advent of the Supreme Court Act 1970, and in particular s90, and the right of a successful plaintiff to apply for interest on awards in respect of past economic loss and past general damages a practice has developed of submitting questions to the jury designed to elicit what parts of their award represent past general damages and past economic loss. In some instances in which answers have been furnished to these questions appellants have submitted either that the particular amount awarded, for instance, for past general damages, was inadequate or excessive and in others that the relationship between a particular allowance and the other components which went to make up the verdict clearly indicated that insufficient had been awarded for those other components. In either instance it was said that the verdict was tainted and should be set aside. The validity of these claims has been discussed in a number of cases. (See Otis Elevators Pty Ltd v Zitis, (1986) 5 NSWLR 171; Commonwealth of Australia v Connor, (1986) 5 NSWLR 218; Couynco Pty Ltd v Cloak, Court of Appeal, 6 April 1983, unreported; Quinn v Rocla Concrete Pipes Ltd, (1986) 6 NSWLR 586 and Cousins v Bradford Kendall Foundaries Pty Ltd, (1986) 7 NSWLR 428.) In the most recent of these cases the majority of the court drew inferences as to the manner in which a jury must have reached its verdict from the answers which it gave to questions which have been submitted and, on the basis of these inferences, set aside the jury award. Although it may be correct in particular circumstances to disregard answers given by a jury to questions which were submitted after the verdict had been announced or contrary to the provisions of s90 that question does not arise here. The jury did not announce a verdict as such but voluntarily adopted the course of announcing its assessment of the two components I have mentioned. Once this 20 UNREPORTED JUDGMENTS had been done the judge inquired whether the total of those components constituted their verdict and received an affirmative answer. There is nothing in the case law to which reference is made in the cases I have mentioned, or in the more recent cases in this State, which requires the Court to disregard what the jury said and to consider only whether the total figure was supportable on the view of the evidence most favourable to Cappelletto. To adopt that course would, as I see it, be an affront to common sense. The jury delivered their verdict by announcing the figure for each of its two components and the court is required, in my view, to consider each of those components in determining whether the ultimate award was _ wholly disproportionate to Cappelletto's injuries, disabilities and losses. If, in my opinion, one component is found to be out of proportion to the claim proved (upon the basis of the view of the evidence most favourable to Cappelletto) then, prima facie, the verdict should be set aside. If, however, the Court considers that there was a counterbalancing error in relation to the other component then it would be necessary to consider whether the verdict should not stand. The relevant principles are discussed in Robinson v Riley, (1971) 1 NSWLR 403. Although that was a non jury case I see no reason why the principles it lays down should not be applied in the peculiar circumstances of this case. Mr Sperling first submitted that the amount of $250,000 awarded for general damages was unsustainable. His submission requires a brief review of the evidence concerning the consequences of the hospital's negligence upon Cappelletto. She was born on 29 January 1928, was 54 years of age at the time she was admitted to hospital for the removal of her gall bladder and 61 years of age at the time of trial. On 12 June 1981 she required resuscitation and three laparotomies. The third of these took place at the Royal Prince Alfred Hospital to which she was transferred on 12 June 1981. During one of these operations her spleen was damaged and removed. The consequences of the loss of the spleen are not very great but she is at increased risk of pneumococcal infections. While in Royal Prince Alfred Hospital she noticed difficulties with her vision. She was seen by Dr Taylor who concluded that she was suffering from candidiasis. He operated on 17 July 1981 to remove portion of the vitreous from both eyes but there was no significant improvement of her vision. She was retained in hospital until 10 September 1981 when she was discharged with greatly impaired vision. In early 1982 or thereabouts laser surgery was carried out to secure her retinas but that procedure did also failed to her vision. In the period from 1981 to 1986 the state of her vision was as follows: She had lost fine vision provided by the centre of the retina; she had retained peripheral vision to either side and up and down. The residual vision was akin to what one experiences to the side in the normal eye. The normal scanning motion of the eye brings an object within the range of peripheral vision. For instance, she would have been able to see counsel from the witness box as a man but without features such as wig or glasses. She had an ability to count the number of fingers held up approximately three feet from her. At close quarters she could stand beside a table and see that it was a table. She could see that there was crockery on it but not be able to differentiate between a saucer and a plate. She could see a cup to pick it up. She could see a building, but not the features of the building. She could see a television set but not the detail of what was occurring on the screen and she would not be able to read a road sign. URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 21 In 1982 visual loss was assessed in each eye at 95 per cent. This simply means that she was unable to read the top line of the testing chart. However, in 1986 cataracts developed in both eyes and these reduced the effectiveness of her vision. It is now similar to looking through frosted glass. Since the development of the cataracts she has been unable to count fingers. She can merely perceive the hand moving. In her state since 1986 she has been able to wash herself, comb her own hair and make herself a sandwich during the day. She remembers the position of various items fairly well including an electric kettle and a jar of instant coffee. She can dress with assistance but cannot do housework or shopping. She can get food from the refrigerator during the day and make an imperfect sandwich. Her son takes her walking but he had not encouraged her to engage in such activities as clearing the table, putting clothes in the washing machine or hanging clothes on the hoist. There is an operation available in which prosthetic lenses are inserted into the eyes. This is a relatively low risk operation and would restore her vision permanently to its condition before 1986. That is, if it was successful she would no longer seem to be looking through frosted glass. Cappelletto was, however, disenchanted with hospitals and doctors for reasons which are quite explicable and had not agreed to submit to this operation. It is not suggested that she has been unreasonable in this regard nor could it be. Given the experiences which she has been through much courage would be needed to submit to further operative treatment. Nonetheless there remains a possibility that she will have the operation in the future and that her eyesight will be improved. Finally, she has had a stress reaction which is characterised principally by depression and anxiety. She receives domestic assistance from her husband and son who live with her. At the time of trial the housework was divided between the two men. Her husband did the washing, cooking and sometimes the shopping while her son did the vacuuming, cleaning of shower and toilet and most of the shopping. When her son was away from home on regular employment trips her husband carried out some of the tasks normally carried out by her son. According to her son each of the men spent three to four hours daily in household duties. It will be seen that she was dependent to a significant degree upon her son and husband. In this respect the future should not be overlooked. Her husband is not in good health and there is a real question as to how long he can continue to look after her. In addition there is a real prospect that her son will marry and leave the home. Indeed he said he intended to marry a particular lady as soon as he conveniently could. The out-of-pocket expenses were agreed at $10,520 and there was in addition the prospect of a relatively small outlay on the operation which Dr Taylor recommended. In these circumstances Mr Sperling submits that in awarding $250,000 general damages the jury failed to act reasonably or, to put it another way, returned a verdict out of all proportion to the circumstances of the case. Mr Jackson QC on behalf of Cappelletto reminded the court that the question is always "whether the verdict shows that the jury 'failed to perform their duty'" (Australian Iron and Steel Ltd v Greenwood, 107 CLR 308, at 322) in support of his submission that the Court could not interfere. Cappelletto had, he submitted, received a 22 UNREPORTED JUDGMENTS devastating injury and was left severely disabled. Consequently it would be quite incorrect to say that the award is out of all proportion to the consequences of the proven negligence of the hospital. I recognise the force of Mr Jackson's submissions. Cappelletto's losses did call for a very substantial award for general damages and, in addition, this Court is bound to accord latitude to the jury in determining appropriate assessment. On the other hand the Court, while not entitled to derive a norm or standard from a group of judgments, is bound to give weight to 'current general ideas of fairness and moderation' (Planet Fisheries Pty Ltd v La Rosa and Anor, 119 CLR 118, at 125). During the hearing the court was informed, and the information accords with my own experience, that the highest awards for general damages granted by judges in this State were in an amount of $275,000, or perhaps, as much as $300,000. Those awards have been reserved for cases in which the injured plaintiffs were young, had been almost completely devastated by the accident and were pitifully aware of their plight. I am, of course, talking about young quadriplegics who suffered from additional complications. If those awards are regarded as appropriate for what may be described as the most serious cases that come before the Court I am unable to accept that, even allowing for a significant degree of latitude, an award for $250,000 for general damages for Cappelletto is within the bounds of reasonableness. Consequently the award cannot stand and this Court should, in accordance with the requests of both parties, proceed to a reassessment in respect of both components of the verdict. In considering what is appropriate in respect of economic loss I start with the out-of-pocket expenses of $10,520 to which should be added a sum to provide for the contingency that Cappelletto may have the operation. That allowance could not reasonably exceed $10,000. The major part of the economic loss award concerned Cappelletto's claim in respect of the care and attention provided by her husband and son in the past and her need for care and attention in the future. In this respect it would be quite erroneous to proceed upon the basis that she will be looked after in exactly the same fashion as she is now for the rest of her life. There is a real chance that her son will marry and leave home and her husband's health is such as to raise a question as to the time he will be able to continue to help her. Mr Sperling very helpfully put before the Court some figures in support of his submission that no more than $100,000 should have been allowed for this aspect of the claim. Those figures, which it is unnecessary to repeat in this judgment, were based on the evidence in the case and the allowance of one hour's assistance per day. If $100,000 is the allowance for one hour per day it would seem tolerably clear that the jury's verdict was based on an allowance of approximately two hours per day. This is to be compared with the evidence of Cappelletto's son to the effect that his father and he each gave her about three to four hours per day - a total of six to eight hours. While it may be correct to conclude that an award based on provision of six to eight hours care per day would be excessive I think it equally true to say that an award based on one or two hours per day, particularly when, even allowing for improvement resulting from an operation, Cappelletto will probably need additional care as she ages, is inadequate. For my part reasonable compensation would require that the figures led in evidence be adapted to a provision of care for Cappelletto for about three hours per day. Such a provision would take account of the unquestioned evidence that more than three URJ THE CANTERBURY HOSPITAL v CAPPELLETTO (Clarke JA) 23 hours assistance was presently being provided but, as well, would recognise that not all the time being spent by Cappelletto's relatives in her aid should be regarded as properly compensable (See Kovak v Kovac and Anor, (1982) 1 NSWLR 656.) Upon this approach I would allow approximately $300,000 for economic loss within which would be included the claim for out-of-pocket expenses, the possible costs of an operation and the costs of meeting Cappelletto's needs resulting from her substantial blindness. General damages I would assess at $170,000. The sum of the two components totals $470,000 which is so close to the jury's verdict as to lead to the conclusion that, although the jury erred in its award of general damages, the verdict should not be set aside (Robinson v Riley, supra). Earlier I mentioned the fact that his Honour allowed interest of $22,750. Ordinarily a finding that the general damages were excessive would lead to a recalculation of interest. In this case, however, no submissions were made in relation to interest and no explanation was proffered as to how it was calculated. In these circumstances it does not seem to me to be appropriate to make any adjustment to that award. For these reasons I would propose that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: H D Sperling QC with P Dwyer Counsel for Respondent: D F Jackson QC with J D Hislop Solicitors for Appellant: Solicitor for GIO Solicitors for Respondent: Dexter Healey and Co