AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and BEAZLEY JJA, and DUNFORD AJA 13 February 1997, 25 June 1997 [1997] NSWCA 32 NEGLIGENCE — res ipsa loquitor — medical negligence — when inference of negligence can be drawn from expert evidence NEGLIGENCE — RES IPSA LOQUITUR — respondent sought contribution from appellant for damages due to injured party — Master found appellant's employee negligent and appellant liable — Master based his decision on res ipsa loquitur — On appeal: the appellant submitted that the Master erred in his interpretation of res ipsa loquitur and in his application of it to the evidence before him. (1) When a judge is sitting without a jury, and the judge thinks that a particular occurrence is not likely to occur in the ordinary experience of mankind without the want of due care then the judge, in deciding the case, is entitled to take the view so formed as material upon which an inference of negligence may, not must, be drawn. Further, it must follow that if a tribunal of fact is entitled to act on that footing in regard to an event within the tribunal of fact's own experience, and without evidence on the point, then when the occurrence is outside the ordinary experience of the tribunal of fact but within the ordinary expert knowledge of qualified professional witnesses who give evidence to that effect, the tribunal must be able to take that expert evidence into account in the same way as it may rely on its own lay opinion regarding matters within its own experience. (2) The Master was entitled to come to the conclusion that he did. Mahon v Osborne (1939) 2 KB 14 Anchor Products Ltd v Hedges (1966) 115 CLR 493 Nominal Defendant v Halsbauer (1967) 117 CLR 448 Peining v Wanless (1968) 117 CLR 498 Government Insurance Office of NSW v Fredrichherg (1968) 118 CLR 403 Priestley JA On 20 July 1980 Mr Hignett, aged seventeen, was a passenger in a motor vehicle being driven by Mr Moorby, when the vehicle collided with a tree. In lay terms, he suffered broken legs, broken ribs on his right side and a broken right collar bone. He was taken to the Royal Canberra Hospital where, two days later, in the operating theatre, anaesthetic procedures preliminary to an operation to insert a K nail in his left femur were begun. That operation never took place because while the patient was being put in place for it, he was noticed to be turning blue. A form of cardiac arrest was suspected, emergency procedures were carried out, and the operation postponed. Soon afterwards, in the recovery ward, symptoms were noticed in Mr Hignett of what became permanent and serious brain damage. In 1981 Mr Hignett began proceedings against Mr Moorby for damages for negligence in his driving of the motor vehicle. Mr Moorby later cross-claimed against Capital Territory Health Authority, the legal entity which conducted the Royal Canberra Hospital (which I will call "the hospital"). The hearing of the case began before Master Greenwood on 29 November 1993. In the afternoon of that day Mr Moorby (in fact his insurer) agreed he was liable to Mr Hignett for damages in the sum of $1.5 million. The Master said he would approve of the terms of this settlement. 2 UNREPORTED JUDGMENTS The hearing then became limited to Mr Moorby's cross-claim against the hospital. This claim was that the hospital should either indemnify him against, or contribute to, the damages he had to pay to Mr Hignett, because, he alleged, Mr Hignett's damage had largely or wholly been caused by the hospital's negligence. Master Greenwood found that the anaesthetist who had administered anaesthetic to Mr Hignett in preparation for the proposed operation had been negligent, that the hospital was liable and that Mr Moorby was entitled to look to the hospital for the sum of $1.2 million. He entered judgment for Mr Moorby against the hospital in that sum. The hospital appealed. Its one ground of appeal was that the Master had "erred in his interpretation of res ipsa loquitur and in his application of it to the evidence before him." The Master had based his decision on res ipsa loquitur because the medical evidence and opinion were unable to provide any persuasive explanation of why the plaintiff had suffered the injury which he did as a result of the operation. The Master set out in some detail in his reasons the way the expert evidence had indicated different possible ways by which the plaintiff had been damaged and explained why no theory could be accepted as being the likely explanation of what happened to the plaintiff. I will not go through the medical evidence in the same way as the Master did. Full detail is available in his reasons and is not the subject of any significant contest. Sufficient of the material facts to follow why the Master reached the conclusion he did and the way in which I think the matter should be dealt with on appeal will appear in my consideration of the arguments put before this court in the appeal. The Master made the basis of his decision clear in several places in his reasons. In one, he said: "The plaintiff was a healthy lad who was judged as being fit to undergo an operation to plate a fractured femur. In normal circumstances it would be anticipated that the plaintiff would not suffer brain damage. The operation was one which because of the plaintiffs pre-existing condition required careful handling. The strong medical evidence is that in these circumstances one would not expect any damage to be caused to the plaintiff by the operation." In another place he said "\.. a healthy plaintiff was subjected to anaesthetic procedures in circumstances where absent negligence on the part of the anaesthetist it could not normally be expected that the plaintiff would suffer brain damage. The plaintiff did suffer brain damage, therefore the inference is open that the anaesthetist was negligent in and about his dealing with the plaintiff. Whilst the precise nature of this negligence is not clear, nevertheless the mere occurrence of brain damage in the plaintiff after the administration of anaesthetic gives rise, on balance, to a finding of negligence against the anaesthetist." For the hospital it was submitted that the Master had misdirected himself as to res ipsa loquitur. The hospital accepted in its written submissions that the maxim operates in medical negligence cases "whenever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, a story so told being clear and unambiguous." URJ = AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY (Priestley JA) 3 This statement of the position is based on what was said by Scott LJ in Mahon v Osborne (1939) 2 KB 14 at 23. The hospital then turned to the facts of the present case and submitted: an accident of itself provides evidence of negligence where in the ordinary affairs of mankind such an incident is unlikely to occur without the want of care on the part of the person sued; the Master had no basis for reaching the opinion that what happened in the present case was unlikely to occur in the ordinary affairs of mankind absent negligence; the medical evidence had provided no basis for identifying any negligence, as the Master himself held; the course of and ordinary consequences of the administration of anaesthetic were not matters within the ordinary knowledge or experience of lay persons, including judicial officers. Counsel for the appellant hospital made his chief point by reference to the first of the two passages from the Master's reasons set out above. He submitted that it was basic to the operation of the res ipsa loquitur idea that the circumstances should have been "normal" as the Master referred to them in the second sentence in that passage. Counsel submitted that quite obviously the circumstances were not normal in that the patient had no longer been a "healthy lad" once the car in which he was a passenger had hit the tree, that is, significantly before the operation. The unavailability of an important premise to the Master's reasoning therefore invalidated it. A second part of the submission was that although the "strong medical evidence" referred to in the last sentence of the relevant passage was to the effect that in the circumstances one would not expect any damage to be caused to the patient by the operation, the medical evidence was also that the damage could occur without negligence. It seems to me that whether or not the arguments for the hospital are accepted as valid depends upon the view taken of certain of the evidence given by the medical experts. Dr George, an expert who gave evidence in Mr Moorby's case against the hospital, said of the brain damage suffered by the plaintiff "In my opinion it should not have occurred. In my opinion a patient such as this should be able to go confidently to the operating theatre and anticipating that he will come out of the operating theatre afterwards not permanently impaired." In the context of Dr George's evidence, this answer seems to me clearly to carry the meaning that a patient such as the plaintiff was should not have come out of the operating theatre permanently impaired if proper care had been used. The following evidence was, in cross-examination, given by Dr Cassidy, another expert called in Mr Moorby's case against the hospital: "Q. I think you said, in answer to a question from my friend when he was asking you questions about what steps should be taken when the patient starts to turn blue, I think you said it is very easy to sit here now and be wise after the event, or words to that effect. I am conscious that you have some criticisms of what has occurred here. You certainly have strong criticisms of the manner in which records were kept? A. Yes. Q. You also, I think, stated that, in trying to reach a conclusion about what in fact happened what we are doing is necessarily, to a degree, speculating about what went on? A. That is correct. Q. Do I understand you to say that is part of the problem that flows from the paucity of records? A. Yes. 4 UNREPORTED JUDGMENTS Q. That you find yourself in the position of having to speculate? A. Yes. Q. Am I right in thinking that although you are critical of what has gone on and particularly the record-keeping, it may be your view that there was a degree of carelessness? You would go that far, I think? A. Yes. Q. You do not go so far as to say that you have concluded that what was done in the case of this patient was obviously improper? A. No I have not." Dr Nott, an expert witness called in the hospital's case gave evidence under cross-examination as follows: "Q. You were aware on 28 May 1981 when you made the report that this was a case of a young healthy, apparently healthy 17 year old, who had received some orthopaedic injuries, including apparent injuries to the chest wall, who undertook a general anaesthetic for the purpose of an orthopaedic procedure and who emerged from that operating theatre with permanent and severe brain damage. You were aware of that on 28 May 1981? A. Iam, I was. Q. In your view that was a catastrophe? A. I think in everyone 's view. Q. It was something that shouldn't have happened, wasn't it? A. Yes. Q. indeed it was something that you had never heard of happening in your experience? A. What had I never heard - Q. You had never heard of a young unbrain damaged man undertaking a general anaesthetic for a routine surgical procedure, orthopaedic procedure, not only not having the operation performed but emerging permanently severely brain damaged? A. Well, I have not heard of a case exactly like the one you have described but I have heard of similar cases. Q. You have never heard of a case in any way similar to a young man unbrain damaged coming out as a result of a general anaesthetic brain damaged, have you? A. No. Q. You agree with me? A. 1 agree with you." The following appears in the cross-examination of Dr Bryan, another expert who gave evidence for the hospital: "Q. And such a catastrophe is not to be expected, is it? A. Certainly not. Q. Your knowledge or assumptions of what went on in the operating theatre were very much reliant upon what you read in Dr Morrison's report and in the report of Dr Vance? A. Well, yes - that is the participants in the procedure are the only persons that you can - Q. Yes, I am not being critical of you? A. The information that they give is vital to making any decision. Q. It is clear, is it not, that something went wrong in the operating theatre which should not have gone wrong? URJ = AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY (Priestley JA) 5 A. Well, on the information available something went wrong in the operation theatre of what we do not know. Q. But which should not have gone wrong because you do not expect coming out of that operating theatre a brain damaged person, do you, who was unbrain damaged when he went into it? A. No, that is correct. Q. So something went wrong in the operating theatre. Would you agree with that? A. Yes. Q. And what you are saying, in short, is you do not know what went wrong? A. Well, I'd go further than that. ''d say I don't know what went wrong and I don't think anyone else does. That's what I have said - we will never know. Q. On the information that was made available to you, you do not and will never know what went wrong? A. Well, I don't know what went wrong, and from all the information I have I don 't think anyone else does either. Q. From the information which you had been given and read? A. Yes. Q. You don't know and will never know what went wrong? A. That's right. Q. All you know is that something went wrong that should not have gone wrong? A. Yes." Later in the cross-examination of Dr Bryan, the following appears: "Q. You agree that it should not have happened? A. I agree that the long term effects should not have happened but there is no indication that because of the patient's posture, that was the reason for the unfortunate outcome. Q. But you cannot advance any reason, can you? A. Nobody else can either. Q. That is not the outcome you would expect if all due care had been used, is it, namely, severe and permanent brain damage? A. Certainly not. Q. You agree with that? A. Absolutely, I agree with that, yes. Finally, in the cross-examination of Dr Crawford, another expert who gave evidence in the hospital's case, the following appears: "Q. I think you said given all due medical care you would not expect that a 17 year old man, apparently unbrain damaged but with some orthopaedic injuries after being anaesthetised to emerge from the operating theatre with permanent severe brain damage? A. One would not expect that. Q. If all due care and skill had been used by all responsible hospital personnel, and I mean by that the anaesthetic and/or hospital medical teams, you would not expect that result, would you? A. I would have. Q. Please, doctor. Would you expect the result that occurred in this case, if all due care and skill had been used? A. Potential for it occurring, yes, but I would not 6 UNREPORTED JUDGMENTS Q. Doctor, would you answer my question. Assuming all due care and skill had been used by all persons handling this patient, you would not expect him to emerge from that operating theatre with permanent and severe brain damage, would you? A. No. Q. You agree with me? A. Yes." This evidence seems to me to be such as to have justified the Master, if he used the test proposed by the hospital taken from Mahon v Osborne (see p4 above) in concluding that the plaintiffs brain damage "told its own story" of negligence on the part of the hospital. However, the test stated in Mahon v Osborne, although not inconsistent with, is in somewhat different terms from its formulation in a series of High Court cases in the 1960s, in particular, Anchor Products Ltd v Hedges (1966) 115 CLR 493; Nominal Defendant v Haslbauer (1967) 117 CLR 448; Peining v Wanless (1968) 117 CLR 498 and Government Insurance Office of NSW v Fredrichherg (1968) 118 CLR 403. In the last of these cases Barwick CJ said, in relation to an accident, that "\.. an inference of negligence may be drawn from the circumstances of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where, in the opinion of the judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person." (at 413) It follows from this statement that when a judge is sitting without a jury, then if the judge thinks that such an occurrence is not likely to occur in the ordinary experience of mankind without a want of due care then the judge, in deciding the case, is entitled to take the view so formed as material upon which an inference of negligence may, not must, be drawn. It seems to me further that it must follow that if a tribunal of fact is entitled to act on that footing in regard to an event within the tribunal of fact's own experience, and without evidence on the point, then when the occurrence is outside the ordinary experience of the tribunal of fact but within the ordinary expert knowledge of qualified professional witnesses who give evidence to that effect, the tribunal must be able to take that expert evidence into account in the same way as it may on its own lay opinion regarding matters within its own experience. This seems to be the position generally in United States jurisdictions: see Prosser & Keaton on the Law of Torts (Sth ed) 1984, at 247; 1988 Supplement p40 and the numerous cases collected in "Res ipsa loquitur and expert opinion evidence in medical malpractice cases; strange bedfellows", K K Ablin (1996) 82 Virginia Law Review, 325, where the writer is critical of the theoretical justification for the practice but demonstrates its widespread adoption. Acting on the basis of Barwick CJ's formulation of the evidentiary position in Frederichherg and on what was said in the other High Court cases above cited, it again seems to me that the Master was entitled to come to the conclusion that he did. The passages of evidence I have set out seem to me to overcome the two main points of the appellant hospital that I have already mentioned. The first was that the Master's opinion was predicated upon the plaintiff's having been in normal URJ = AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY (Dunford AJA) 7 health, contrary to the fact. The various doctors whose evidence I have set out all demonstrably said what they said in full knowledge of the plaintiff's condition at the time when the anaesthetic began to be administered to him. The second main point for the appellant hospital had been that some of the expert evidence was to the effect that the damage could have happened to the plaintiff without negligence. It seems to me there are two answers to this. Ihave already indicated the first, that in light of the evidence above set out, the Master was entitled to reach the conclusion that he did, notwithstanding the contrary evidence. The second is that the evidence of what happened in the course of the administration of the anaesthetic and its immediate aftermath can not have given a complete picture of what happened during the relevant period. The Master himself made this point, mentioning that no explanation had been given for the absence from the witness box of four members of the nursing staff who had been in the theatre with the anaesthetist at the relevant time. He rightly said that he might infer from this that the evidence which they could give would not assist the hospital. It was common ground that the notes made by the anaesthetist during and immediately after the administration of the anaesthetic were inadequate, incomplete and in some respects wrong. The expert witnesses seem to have been unanimously critical of these notes. I do not think it is possible to rely on the negligent note keeping as being in any way a cause of the damage that occurred to the patient. When the inadequacy of the notes is kept in mind however, along with the absence of evidence from other persons in the operating theatre at the time and the great length of time both before the anaesthetist gave any written account of what had happened and the giving of evidence in the case, it seems beyond question that the account of the relevant events given in evidence before the Master can not have been complete. Each of the expert witnesses made the point, and quite rightly so, that his opinion could only be based on the available facts. In the factual circumstances of the present case expert opinion to the effect that damage such as occurred to the patient could occur without negligence can not be of much weight. I think the Master was entitled to find that the inference of negligence that he was prepared to draw from the occurrence itself was not displaced by the opinions given that the damage could have occurred without negligence. In support of its submissions the appellant hospital drew the court's attention to Girard v Royal Columbian Hospital (1976) 66 DLR (3d) 676, a decision of Andrews J of the Supreme Court of British Columbia sitting alone on a case with some general similarities to the present, involving a damaged plaintiff bringing proceedings against an anaesthetist. The facts of the case seem to me to be markedly distinguishable from the present, while the legal rules followed seem to me to be substantially the same as those by which I have been guided. I do not think the decision is of any assistance to the appellant hospital. In my opinion the appeal should be dismissed with costs. Beazley JA I agree with Priestley JA. Dunford AJA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: R R Stitt QC and R M Henderson 8 UNREPORTED JUDGMENTS Solicitors for the Appellant: State Crown Solicitor Counsel for the Respondent: B Murray QC and M Elkaim Solicitors for the Respondent: G M Meadows