Reported Decision : (2000) Aust Torts Reports 81-574 New South Wales Supreme Court CITATION : Wang v Central Sydney Area Health Service & 2 Ors [2000] NSWSC 515 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 17083 of 1990 HEARING DATE(S) : 02/08/1999 - 06/08/1999, 09/08/1999 - 12/08/1999, 16/08/1999 -18/08/1999, 20/08/1999, 25/08/1999, 13/09/1999, 20/09/1999 - 23/09/1999, 09/12/1999 JUDGMENT DATE : 9 June 2000 Sha Cheng Wang by his tutor Ru Bo Wang (plaintiff) PARTIES : Central Sydney Area Health Service (1st defendant) Dr Andrew Katelaris (2nd defendant) Superclinics Australia Pty Limited (3rd defendant) JUDGMENT OF : Hidden J at 1 K G Horler AM QC with B W Ingram and V J Webster (plaintiff) COUNSEL : P R Garling SC with M J Windsor (1st defendant) Dr Katelaris in Person (2nd defendant) W H Nicholas QC with M T McCulloch (3rd defendant) Athena Touriki (plaintiff) SOLICITORS : GIO Australia (1st defendant) MinterEllison (3rd defendant) CATCHWORDS : MEDICAL NEGLIGENCE - duty of care of hospital to person attending emergency department - appropriate advice to person with head injury leaving department before treatment available - duty of care of general practitioner to such a person. Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542 Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 CASES CITED : Drobek v Braun [1999] NSWCA 264 Ellis v Wallsend District Hospital & Ors (1989) 17 NSWLR 553 Qantas Airways Ltd v Cameron (1996) 66 FCR 246 Rogers v Whitaker (1992) 175 CLR 479 DECISION : Verdict for plaintiff against 1st defendant - verdict for 2nd and 3rd defendants on plaintiff's claim and 1st defendant's cross-claim. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday, 9 June 2000 17083 of 1990: Sha Cheng Wang by his tutor Ru Bo Wang v Central Sydney Area Health Service & 2 Ors Judgment on liability 1 HIS HONOUR: This is a very sad case. The plaintiff, Sha Cheng Wang, is seriously and permanently disabled as the result of an assault perpetrated upon him in the Newtown area in the evening of 18 April 1988. His assailant has never been identified. He was then aged thirty, and is now forty-two. 2 He was a young man to whom life had much to offer. He was born and raised in Shanghai. Both his parents were teachers of art. He completed high school, acquitting himself well in languages, art and music. He was also a competent sportsman. In Shanghai he was employed for some years as a graphic designer with a book publishing company. In about mid-1987 he came to Australia, where he obtained similar employment with an Australian Chinese newspaper in the Chinatown area of Sydney. 3 At the time of the assault he was living with friends in the Newtown/St Peters area. Some time after 8pm on 18 April 1988, he finished work at the newspaper and travelled by train to St Peters. It was while he was walking from that station to his home that he was assaulted. Presumably, the purpose of the assault was robbery but the precise details of the incident are unknown. It does not appear that the plaintiff provided a detailed account to anyone shortly after the event and, as a result of ensuing brain damage, he has not since been capable of doing so. What can be said is that he was struck from behind by a heavy object and fell to the ground. It may be that he was unconscious for a short period. 4 He managed to walk to his home, and two of his friends there took him by taxi to Royal Prince Alfred Hospital at Camperdown. They waited for some time in the Emergency Department, where they were joined by other associates of his. After some time, and before the plaintiff had been treated, they left and went to the city Superclinic, which was then on Broadway near Railway Square. There, the plaintiff was treated by Dr Andrew Katelaris and returned home. 5 In the small hours of the following morning his condition deteriorated and he was taken back to Prince Alfred Hospital by ambulance. It seems that his skull was fractured. He was suffering from extra dural haemorrhage, and surgical intervention at that stage was unable to prevent irreversible brain damage. 6 The present proceedings are brought against the Central Sydney Area Health Service, being the statutory body administering the Royal Prince Alfred Hospital (the first defendant), Dr Andrew Katelaris (the second defendant) and Superclinics Australia Proprietary Limited, the company administering the clinic at which Dr Katelaris was working at the relevant time (the third defendant). I shall refer to the first defendant as "the hospital", and the third defendant as "Superclinics". Against each of the defendants the plaintiff seeks damages for negligence. Superclinics is sued on the bases that it is vicariously liable for the negligence of Dr Katelaris and, in any event, was in breach of a non-delegable duty to the plaintiff as a provider of medical services. 7 All three defendants deny the negligence alleged. By their pleadings, the hospital and Dr Katelaris allege contributory negligence but this was not pursued at the trial. Superclinics also contends that the claim against it, which was made at a late stage of the proceedings, is statute barred. The hospital cross-claims against Dr Katelaris and Superclinics, seeking contribution or indemnity, as does Dr Katelaris against the hospital. 8 It is unnecessary to recite the procedural history of the trial. It is sufficient to say that it began with a jury but that, in the light of submissions by counsel after five days of hearing, I determined that the jury should be discharged and that, sitting alone, I should try the issue of liability separately: see my judgment of 9 August 1999 and pp377ff of the transcript. Dr Katelaris conducted his case without legal representation. It is necessary to recount aspects of the evidence before explaining how the plaintiff makes his case against each of the defendants. 9 The plaintiff's companions at the flat where he was living were Li Lang Fu, Li Yun, Li Wei and Barbara Shi. On the night in question Li Lang Fu, Li Yun and Li Wei were at home when the plaintiff arrived. It was Li Lang Fu and Li Yun who took him to the hospital. The people who joined them at the hospital, who knew the plaintiff through their association with the newspaper, were David Siu Ng, Tony Chen and his wife, Christine Chen. Tony Chen was not called. Mrs Chen was, but her recollection of events was so vague that her evidence can be discounted. 10 Putting aside expert testimony, the plaintiff's case was founded upon the evidence of Li Lang Fu, Li Yun and David Ng. I found all three to be honest witnesses but, not surprisingly, their memory of the events of the night in question was not always reliable. (For example, Li Lang Fu was adamant that the person they first spoke to at the hospital was a woman when, clearly, it was a man.) 11 What is clear is that the plaintiff arrived at the flat in the mid-evening with a cut to his head, from which blood was oozing. There was blood on his face and clothing. He told his flatmates that he had been assaulted but it appears that he did not elaborate. He said that he was in pain and needed hospital treatment immediately. They put some Chinese medicine, apparently a disinfectant powder, on the wound and Li Yun cleaned his face with a towel. He was then taken to the hospital. At the hospital 12 Among those on duty in the Emergency Department at the time were the casualty clerk, Mr Alan Peard and the triage sister, Sister Sarah Carruthers. Both gave evidence in the hospital's case. At 10pm, before the plaintiff and his companions had left, Sister Carruthers was relieved by Sister Jennifer Smith. She was not called. Again putting aside expert testimony, the evidence of Sister Carruthers was central to the hospital's case. 13 The plaintiff's witnesses gave varying estimates of their time of arrival at the hospital. The matter is put to rest by the hospital records. Mr Peard, whose function was effectively that of a receptionist, recorded the time of arrival as 9.25pm. He had no independent recollection of the plaintiff's attendance. Of the plaintiff's flatmates, it appears that Li Yun had the best English and it was he who did most of the talking. His evidence, which I accept, was that he told Mr Peard that the plaintiff had been hit on the head and that his life was in danger, and he asked that he be seen by a doctor as soon as possible. Mr Peard told him that they would have to wait, as there were a number of people already in the department seeking treatment. 14 Both Li Lang Fu and Li Yun gave evidence that they remained with the plaintiff and that, prior to their leaving the hospital, he was not examined by a doctor or a nurse. The hospital records suggest otherwise. It is clear that Mr Peard referred the plaintiff immediately to Sister Carruthers, and there is a notation in her hand which reads "assaulted ?LOC". At the very least, this is consistent with her evidence that she obtained a history from the plaintiff, using one of his friends as an interpreter. She said that the expression "?LOC" meant that it was possible that there had been a loss of consciousness. She was told that the plaintiff had not lost consciousness but she explained that, as people who have been assaulted may not recall having been unconscious, caution required that that possibility be noted. 15 Sister Carruthers went on to describe her brief physical examination of the plaintiff. She noted that he walked into her office unaided and appeared to be alert. She had him squeeze her fingers to test his hand grip, which she found to be firm and equal. She checked his pupils by having him close his eyes and open them quickly, and they appeared to be equal and reacting to light. 16 Triage is the process whereby people attending an emergency department are given priority according to the apparent urgency of their need for treatment, and it was this function which Sister Carruthers was called upon to perform. According to her, because of the possibility of loss of consciousness, she placed him at the top of the list bar one. The patient having priority over him was a woman with a significant abdominal problem. In the meantime, she had the plaintiff sit in the waiting area, where she could observe him in case there was any deterioration in his condition. 17 Li Yun said that at the hospital the plaintiff looked pale, and appeared to be tired and weak. David Ng, who arrived later, observed that he was still bleeding and appeared to be in pain, although he said that he was "alright". Mr Ng noticed that he spoke very slowly. (This may not have been obvious to Sister Carruthers, who did not speak Chinese, and there is no evidence that she was told that there was anything unusual about his speech.) As I have said, Sister Carruthers described him as alert, although she said that he may have been pale and that he was touching his head, looking "a bit distressed". She observed blood on his clothing but she said that blood was not oozing from the wound. 18 The evidence of Li Lang Fu and Li Yun was that, after waiting some time, they approached a woman whom they described as a nurse, saying that the plaintiff's condition was dangerous and that he needed to be seen by a doctor promptly. She replied to the effect that the department was very busy and they would have to wait. It was then that Li Yun telephoned Tony Chen, who lived at Castle Cove, from a public telephone in the waiting area. Apparently, Mr Chen was a business associate of the proprietor of the newspaper where the plaintiff worked. Mr Chen contacted David Ng, who lived in the same area and worked at the newspaper, and Mr and Mrs Chen and Mr Ng travelled to the hospital in Mr Chen's car. 19 In evidence, Sister Carruthers had no recollection of being spoken to by any of the plaintiff's companions after she had examined him. She denied being urged to have a doctor see him or telling them that they would have to wait because of the number of other people in attendance. I shall deal in due course with the conflict between her evidence and that of the plaintiff's witnesses on this and other matters. 20 According to David Ng, he and Mr and Mrs Chen arrived at the hospital at about 10pm. It could not have been any earlier, given that it is clear that the plaintiff arrived at the hospital at 9.25pm and some time must have elapsed before Li Yun telephoned Mr Chen. Accordingly, it is likely that they arrived after Sister Carruthers had been relieved by Sister Smith. Sister Carruthers gave evidence that she saw the plaintiff and his companions walk out of the department at the time Sister Smith came on duty. If she intended to convey by that evidence that they left not merely to take the air, but to go elsewhere, that simply could not be so. This is one of the conflicts in the evidence to which I shall return in due course. 21 David Ng had quite a good command of English, apparently better than that of Li Yun. He had completed tertiary education at the University of Hong Kong, where the medium of teaching was English. His evidence was that, after waiting some time, he approached a nurse to enquire how long it might be before the plaintiff could be treated. He was told that the department was busy and that a lot of people were waiting. About fifteen minutes later he asked her if they could go somewhere else for treatment, perhaps at a private hospital, and she said that they were free to do so. As he put it, she said that "we can do whatever we want to". This evidence was not challenged. Most likely, it was Sister Smith to whom Mr Ng spoke on both occasions. 22 It seems that about ten minutes later the group arrived at a joint decision to seek treatment elsewhere, and they left the hospital. David Ng put this at about 10.45pm and again, given the sequence of events, I do not believe it could have been any earlier. It may well have been a little after 11pm, which was Li Yun's recollection. The hospital records contain a handwritten note "Did not wait to be seen", probably written by Sister Smith, which is not timed. At the end of the day, whether they departed before or after 11pm is of no moment. At the clinic 23 The group travelled to the city Superclinic in Broadway, not far from the hospital, in Mr Chen's car. They arrived there, I infer, at about 11pm or not very long thereafter. Dr Katelaris made brief but adequate notes of his examination of the plaintiff at the clinic, but he did not note the time of their attendance. There was no-one else at the clinic requiring treatment and Dr Katelaris saw the plaintiff promptly upon their arrival. 24 It is convenient to summarise Dr Katelaris' account of what occurred at the clinic, and then to examine the extent to which it is in conflict with the evidence of the plaintiff's witnesses. The doctor met the group in the reception area of the clinic and took the plaintiff to a separate treatment area. Li Lang Fu was not in the treatment area at any stage and, for that reason, such evidence as he gave about events at the clinic is of little significance. More important is the evidence of Li Yun, who was in the treatment area during part of the consultation, and David Ng, who was there the whole time. It was Mr Ng who acted as interpreter. 25 Dr Katelaris' evidence about his examination and treatment of the plaintiff, supported to a significant extent by his clinical notes, was not in dispute. He obtained a history of the assault, which alerted him to the possibility of a period of unconsciousness. He observed a deep laceration, about 8cm in length, towards the back of the plaintiff's head. He debrided the wound and applied a local anaesthetic to it. 26 He examined the plaintiff's pupils by eye and also using an ophthalmoscope. He tested the grip of both hands, and the extension and flexion of the upper arms. Although he had observed the plaintiff to walk unassisted, he tested the patella reflexes of both legs. Twice he conducted what is known as a Romberg's test, designed to reveal any abnormality in balance. Finally, he sutured the wound and administered a tetanus toxoid injection. 27 The doctor's evidence was that he then informed the plaintiff's companions that it would be advisable to return to the hospital for an x-ray (a service which he himself was unable to provide at that time). This, he said, was met with "an instantaneous eruption of displeasure" arising, apparently, from the fact that the plaintiff had not received treatment at that institution earlier. His offer to write a letter to the hospital, so that they would not have to wait, did not change their attitude. His examination of the plaintiff had afforded no evidence of a skull fracture and disclosed no abnormal neurological signs, so he could see no point in trying to persuade them to go back to the hospital. He determined, instead, to advise the plaintiff's companions what action they should take if his condition deteriorated. 28 To this end, he said, he produced a document which he described as a "head injury advice form". He went on to explain what it said, using gestures to ensure that he was understood. He said that an ambulance should be called immediately in the event of vomiting or convulsion, if the plaintiff became drowsy or unrouseable, or if they observed weakness in one or more of his limbs or inequality in the size of his pupils. He told them that the plaintiff should not be left alone. He advised them to take him to a Chinese speaking doctor the next morning to arrange for an x-ray and for any ongoing care which might be necessary. 29 It seems that all this advice was conveyed primarily to David Ng, who passed it on to Li Yun. In evidence, Li Yun agreed that a number of directions by the doctor as to the care of the plaintiff were passed on to him by Mr Ng. Nevertheless, he could recall only being told that he should check the next morning whether the plaintiff could follow movements of his hands with his eyes and that, if he could not, he was to be taken to a hospital immediately. He denied having received any of the other advice of which Dr Katelaris gave evidence. However, he understood that he should pay attention to the plaintiff during the night. 30 David Ng himself, on the other hand, could remember being told that the plaintiff should not be left alone and that he needed immediate hospital treatment if he vomited. However, he agreed that Dr Katelaris "probably" told him that they should consult a Chinese speaking doctor in the morning. As to the other aspects of the doctor's advice, he said that he could not recall them but was unable to deny that they had been given. Similarly, he could say no more than that he did not recollect the doctor's advice that they return to the hospital for an x-ray. He had no difficulty understanding the doctor and was careful to convey to the others what he was being told. 31 At the time the group left the clinic, David Ng observed that the plaintiff's face was pale and that his speech was still very slow. (Again, Dr Katelaris may not have been aware of anything unusual about his speech as the matter was not drawn to his attention.) The doctor gave evidence that "he certainly looked tired" and that his general demeanour was consistent with someone who had been attacked in the manner described. Tony Chen drove them back to the flat. During the journey, Li Yun asked Mr Chen if he could telephone him if anything untoward happened, as he himself had not been in Australia long and felt that he might need the help of someone with local knowledge. Mr Chen agreed. The following morning 32 The plaintiff, Li Yun and Li Lang Fu were dropped at the flat. Li Yun prepared a light meal for the plaintiff, whereupon all three of them retired. They slept in the same room. 33 Apparently not much later, the plaintiff woke Li Yun and said that he felt nauseous. Li Yun obtained a bucket, into which he vomited. He said that he felt sick, and he complained of a headache and a pain in his right leg. Nevertheless, he asked Li Yun to turn off the light because he wanted to sleep. 34 Li Yun left the bedroom, had a meal and took a shower. When he returned to the bedroom, the plaintiff appeared to be asleep but was having some kind of convulsion. His leg was kicking, apparently involuntarily, against the wall. Li Lang Fu awoke and they decided to contact Tony Chen, as they were themselves unsure how to summon an ambulance. They did so from a nearby public phone. 35 Again, Mr Chen contacted David Ng and drove with him to the flat. Upon their arrival, Mr Ng observed that the plaintiff appeared to be unconscious. He telephoned an ambulance, which arrived promptly. By this time it was after 3am. The hospital records disclose that the plaintiff arrived there at about 4am. He then underwent the surgery to which I have earlier referred. Liability of the hospital 36 As one would expect, there was extensive expert evidence. The plaintiff produced the reports of Dr Michael Tarlington, a general practitioner, and Dr Dudley O'Sullivan and Dr Ross Mellick, both neurologists. The hospital relied on reports by Dr Gordian Fulde and Dr John Raftos, both specialists in emergency medicine. Apart from Dr Tarlington, all these experts gave oral evidence. Ms Jennifer Fares, an experienced nursing sister who was called in the plaintiff's case, also gave evidence about the procedures in an emergency department. Dr Tarlington was deceased at the time of the trial and his report was admitted over objection. Obviously, the fact that his opinions were unable to be tested significantly affects the weight to be given to that report. In any event, I do not consider that it adds to the other material in such a way as to influence my decision. 37 It is likely that the plaintiff would have made a good recovery if he had been treated at the hospital. This was the view of the plaintiff's experts, and Dr Fulde and Dr Raftos gave no evidence to the contrary. It seems that the plaintiff's extra dural haemotoma was bilateral which, according to Dr Raftos, is relatively rare. Nevertheless, it is clear that intra-cranial bleeding is a well recognised complication of a head injury and, provided it is not detected too late, it can be effectively remedied by surgery. 38 The plaintiff's case against the hospital is put on two alternative bases. Firstly, it is alleged that Sister Carruthers' examination was inadequate and superficial and that no notice was taken of his friends' insistence that he needed urgent attention, so that he was not afforded the priority which he deserved. Alternatively, accepting that his priority was appropriately assessed, Sister Carruthers should have consulted a doctor about him before she went off duty, and Sister Smith should have done so before the plaintiff left the hospital. In either event, it is said, some attempt should have been made to dissuade the plaintiff from leaving before he had been seen by a doctor. (This last matter was pleaded somewhat differently, but that is the issue which arose on the evidence and to which final submissions were addressed.) 39 At this point it is necessary to consider the credibility of Sister Carruthers. I found her evidence unreliable in certain respects. While not resiling from a submission that some of her evidence was fabricated, counsel for the plaintiff was content to argue that her account was skewed, more or less unconsciously, to place her actions in a favourable light. I think that that is the case and, in all the circumstances, it is perhaps understandable. 40 Earlier in these reasons (par 20) I referred to her evidence that the plaintiff and his companions left the Emergency Department at the time she was relieved by Sister Smith. Reading her evidence carefully, I have no doubt that she sought to convey that they were leaving to go elsewhere. As I have said, that clearly is not the case. 41 The evidence emerged for the first time during her cross-examination, and it is clear that it had not been the hospital's case. None of the plaintiff's witnesses was cross-examined to that effect. More importantly, it is inconsistent with an account she appears to have given to Dr John Roberts, the Acting Director of the Emergency Department, on the day after the incident, 19 April 1988. That account is recorded in a report of Dr Roberts, parts of which I admitted into evidence (Exhibit T - see p1193 of the transcript). It is clear that she told Dr Roberts that the plaintiff was still sitting in the waiting area when she went off duty. 42 I referred also (pars 18 & 19) to her evidence that she did not recall being approached by Li Lang Fu and Li Yun after she had examined the plaintiff, and her denial that she was urged to have a doctor see him and that she told them that they would have to wait. I accept the evidence of the plaintiff's witnesses about this matter and, again, it is corroborated by Dr Roberts' report. She told Dr Roberts that on two occasions the plaintiff's companions approached her, emphasising that he needed to be seen by a doctor, so she put him on the top of the list but said that they would still have to wait. 43 Neither of these matters is of any great significance of itself. The question is to what extent, if at all, they bear upon the credibility of her evidence about more crucial matters. To those I now turn. 44 As I have said (par 14), the evidence of Li Lang Fu and Li Yun was that the plaintiff was not examined by a nurse, let alone by a doctor. Given the hospital records, this cannot be so. It appears that Sister Carruther's examination was brief and it is readily understandable that those witnesses would have no recollection of it, particularly in evidence given years after the event. No doubt, this is why the final submissions of counsel for the plaintiff did not deny that the examination had taken place but, rather, focussed on its adequacy. 45 Reliance was placed upon Sister Carruthers' laconic note, "assaulted? LOC". The evidence of Ms Fares was that there should have been notes not only of the history provided but also of Sister Carruthers' physical examination, together with her assessment of the urgency of the plaintiff's condition. This, she said, was essential to establish "a baseline" from which the significance of any change in the plaintiff's condition might be judged, particularly when Sister Carruthers went off duty and was relieved by other staff. The plaintiff's submission was that, quite apart from the need for adequate notes for the benefit of relieving staff, their absence in the present case indicates that no proper examination or assessment was undertaken. 46 In evidence, Sister Carruthers maintained that the brief note she made accorded with accepted practice at the time and that, when she was relieved by Sister Smith, she gave her an appropriate oral account of the plaintiff's history and condition. As I have observed, Sister Smith was not called. On the other hand, Dr Fulde gave evidence that Sister Carruthers' note would have provided her successor with sufficient information about the plaintiff and that, as the system of triage in 1988 was less formal than it is now, she would not have been expected to record her assessment of his priority. The other experts gave evidence about the practice of keeping notes generally, but none of them was asked to express an opinion about the adequacy of the note in question. It must be borne in mind that Sister Carruthers did not purport to treat the plaintiff, and the only purpose of any note she might make would be in aid of what counsel for the hospital described as "the sorting process". Viewed in that light, Dr Fulde's evidence about this should be accepted. 47 Given that her note demonstrates that she obtained a history from the plaintiff, it is inconceivable that she would not also have undertaken the brief physical examination which she described (par 15). From the whole of the expert evidence, it is clear that it was an examination of a basic kind which any medical professional would have performed. At this point I should return to the evidence of David Ng to which I have referred (par 17) that the plaintiff was speaking slowly. Even if she had noticed this, it may well have conveyed nothing to Sister Carruthers. Dr Fulde explained that the pace of a patient's speech is not particularly important. What is significant is whether he or she is making sense. 48 As I have said, it was no part of Sister Carruthers' function to treat the plaintiff. From the whole of the expert evidence, it is clear that her task as triage sister was to make a primary assessment of him with a view to assessing the urgency of his need for treatment. That assessment had to be made in the light of the other demands upon the Department at the time and the available professional resources. Dr O'Sullivan observed that, then as now, patients attending an emergency department who were not in need of immediate resuscitation often had to wait for lengthy periods before being seen by a doctor. 49 Sister Carruthers' other responsibility was to keep the plaintiff under observation in the waiting area in case his condition worsened. Ms Fares pointed out that the priority afforded to patients in a department at any given time might change, because of deterioration in the condition of any of them or the arrival of a new patient in a critical condition. She agreed with the proposition, put by counsel for the hospital, that "the underlying principle of triage is to do the greatest good for the greatest number…". 50 What must be understood, however, is that the observation of the plaintiff required of Sister Carruthers is different from formal neurological observations which might have been maintained if he had progressed to the treatment area. The experts gave evidence about this but it is unnecessary to dwell upon it. It is sufficient to say that a decision to conduct those observations, normally over a period of four hours, would have been made by a doctor, and they would have been carried out by nursing staff in accordance with that doctor's directions. 51 The use and benefit of an x-ray or a CAT scan were explored in evidence. These investigative techniques also were beyond the responsibility of Sister Carruthers, but they might have been used at the direction of a doctor if the plaintiff had undergone treatment. The expert evidence was that a fracture to the skull is not necessarily associated with intra cranial bleeding. An x-ray might or might not reveal a fracture. A CAT scan should do so but, from time to time, even it does not. Indeed, several CAT scans performed when the plaintiff was returned to the hospital failed to detect a fracture which, according to the operation report, was observed during surgery. 52 An x-ray would not reveal haemorrhaging but, again, a CAT scan should. However, as Dr Fulde explained, a CAT scan is a costly form of tertiary investigation which is not conducted upon patients with a head injury as a matter of course. He and Dr Raftos were of the view that, even if the plaintiff had been examined in the treatment area that evening, his condition at that time would not have justified it. 53 There is no doubt that the effects of head injuries are unpredictable and, for that reason, Ms Fares was of the view that the doctors on duty in the Emergency Department should have been informed of the plaintiff's arrival even though none of them was then available to treat him. Dr Mellick was of the same view, although he acknowledged that whether a doctor could see a patient upon arrival, even if only for the purpose of a preliminary assessment, would depend on the available resources. Dr Fulde and Dr Raftos thought otherwise. According to both of them, the plaintiff's presentation was not such as to call for immediate medical assessment. Dr Fulde said that a triage nurse would need to notify medical staff of a patient's attendance only if there were symptoms indicating the need for urgent treatment, such as difficulty in breathing or loss of consciousness or, in the case of head injury, some obvious functional abnormality attributable to that injury. 54 Allowing for the demands upon the limited resources of hospital emergency departments, this must be so. The effect of Sister Carruthers' evidence is that the plaintiff did not present with symptoms calling for immediate medical intervention, and did not develop any while she was on duty. The fact that he had no such symptoms, and did not deteriorate before he left the hospital, is confirmed by the unchallenged evidence of Dr Katelaris' examination (outlined in pars 25 & 26). 55 Given the significance of resources and the demands upon them, it is necessary to examine such evidence as there is about those matters on the night in question. Sister Carruthers described the Department as very busy. She did not recall how many doctors were on duty, but said that normally there were "two doctors in the cubicle end and three or four in the ward end". For the purpose of preparing his report, Dr Fulde was supplied by the hospital with a series of factual assumptions, one of which was that there were four doctors working in the Department at the time (two resident medical officers, a registrar and an intern). I accept that as the fact: cf Drobek v Braun [1999] NSWCA 264, per Cole AJA at pars 9&12. 56 Hospital records disclose that 115 patients attended the Department on 17 April 1988, the day before the incident, and by the time of the plaintiff's arrival at 9.25pm on 18 April a further 100 patients had attended. Obviously one must allow for some overlap between those two groups in assessing the workload of the medical staff: what Dr Fulde described as the "log jam effect". 57 On those figures, both Dr Fulde and Dr Raftos said that it was likely that the Department was indeed very busy and that its professional resources, medical and nursing, were taxed. Some time was spent examining the records relating to patients attending the Department in the hours immediately before and after the plaintiff's arrival. I must say that, at the end of the day, I have not found this a particularly fruitful exercise. Of those who arrived before, Dr Mellick considered all but two should have been afforded lower priority than the plaintiff. The two cases were also head injuries, the patients being brought to the hospital by ambulance. As to the priority of the first of those, Dr Mellick was not prepared to comment. As to the second, a patient who was triaged at 9.02pm, he considered that the plaintiff should have been given no lesser priority. He said that all of the patients who arrived after the plaintiff were of lower priority although, on the limited information available, he was not sure about one of them. 58 Dr Fulde, on the other hand, expressed a very different view. He considered that several of the patients, arriving both before and after the plaintiff, had conditions which made their priority equal to or higher than that of the plaintiff. As to two of those patients, he was the only expert who reviewed their comprehensive clinical records. Dr Raftos had personal knowledge of two patients who arrived by ambulance before the plaintiff, one at 7.19pm and the other at 8.02pm, as he had arranged their transfer from Sutherland Hospital, where he was the Director of Emergency Medicine. He said that both were in a critical condition as a result of head injuries and needed urgent treatment. He also said that both cases required considerable professional resources although, as counsel for the plaintiff pointed out, it is unclear to what extent those resources would have to have been provided by the Emergency Department. 59 Accordingly, expert opinions about the specific cases to which consideration was given in the period before and after the plaintiff's arrival were conflicting and, to a large extent, inhibited by inadequate source material. In addition, there is no evidence of the extent to which medical staff was already engaged in the assessment and treatment of patients who had arrived before that period. Such evidence as there is simply does not admit of the conclusion that the plaintiff was not afforded the priority he deserved. 60 Further support for the proposition that the Department was busy is afforded by the records relating to the patient, to whom I have referred, who was brought in at 9.02pm. Although suffering a head injury, he was not seen by a doctor until about four hours later. Counsel for the plaintiff referred to the records of another patient who arrived at 9.46pm, complaining of an earache, and who was seen by a doctor within three hours. On the face of it, that patient's condition was much less urgent than that of the person who had arrived at 9.02pm, and it was submitted that this demonstrated that priorities were not being assessed with sufficient care. However, that apparent anomaly provides no adequate basis for the conclusion which I am invited to reach, that is, that the plaintiff was simply overlooked. 61 Counsel for the plaintiff placed some emphasis upon the fact that Sister Carruthers, in a statement to the hospital's solicitors, said she had triaged the plaintiff as "an acute case". Exactly what she meant by that expression is unclear and, indeed, in evidence she appeared to be somewhat mystified by her use of it. Presumably, it was intended to convey her assessment of his priority in the light of the possibility that he had been unconscious. To Dr Raftos and Dr Fulde the word "acute" had no particular significance, and it is clear that it is not a term of art in emergency medicine. In my view, nothing turns upon Sister Carruthers' reference to it. 62 Her evidence (par 46) that she gave Sister Smith an oral account of the plaintiff's situation at the end of her shift was also called into question. I see no reason not to accept this evidence, although I acknowledge that the fact that Sister Smith did not give evidence remains unexplained. In any event, given that Sister Carruthers' examination of the plaintiff disclosed no neurological abnormality and there had been no deterioration in his condition since his arrival at the hospital, it is difficult to see that any oral account by Sister Carruthers could have added to what was disclosed by her note: that he had come to the hospital at 9.25pm, having been assaulted and, possibly, rendered unconscious. The responsibility would then have passed to Sister Smith to keep the plaintiff under observation and to exercise her professional judgment accordingly. 63 The pleas of the plaintiff's companions that he be treated urgently, addressed to Mr Peard, Sister Carruthers and Sister Smith, were well motivated and entirely understandable. Nevertheless, they could not influence, let alone dictate, the priority to which he was entitled. That was a matter to be assessed by the hospital staff. As a matter of course, patients who arrived by ambulance were taken immediately to the treatment area. However, there is no evidence that any other patient was called to the treatment area during the period the plaintiff was at the hospital. I could not fairly conclude that, if he had been afforded higher priority, he would have been referred for treatment before the time at which he left. 64 I turn, then, to the question which has troubled me most. Should hospital staff have attempted to dissuade the plaintiff from leaving? I have referred (at par 21) to the unchallenged evidence of David Ng about his enquiry whether they might seek treatment elsewhere. I am satisfied that that enquiry was directed to Sister Smith and that she did not advise them to wait. It is true that some further time elapsed before they left, and counsel for the hospital submitted that the staff might not have been aware of their departure. However, if appropriate observation of the plaintiff in the waiting area were being maintained, they should have been. 65 It was common ground that the plaintiff was free to leave and the hospital staff had no power to restrain him. However, varying views were expressed by the experts about how the situation should have been handled. Ms Fares said that normally staff would attempt to persuade a patient from leaving and would find out how soon a doctor might be available, informing the medical staff that the patient was becoming restless. 66 Dr Mellick also considered that a doctor should have been informed that the plaintiff intended to leave. He said that a number of things might have been done, short of physical restraint, to ensure that he remained at the hospital. For example, he might have been taken to the treatment area and asked to lie on a bed, even though a doctor was not then available to examine him. He added that a patient who had suffered a head injury might be in "a clouded state of mind" and might not be able to make an informed decision in his own best interests. 67 One of the difficulties with Dr Mellick's evidence is that, although Mr Ng's evidence on this aspect was put to him correctly, a number of his answers appear to have been based upon the assumption that the plaintiff was leaving the hospital to go home, rather than to seek medical attention elsewhere. Another is that his specialty is neurology rather than emergency medicine, and he did not feel comfortable expressing views about the duties of a triage nurse or, generally, about the administration of an emergency department. 68 I turn, then, to the views of the two specialists in emergency medicine. Initially, questions were put to Dr Fulde upon the premise that the plaintiff had not been triaged at the time Mr Ng made his enquiry of Sister Smith. I am satisfied that he had been. Upon that assumption, Dr Fulde said that Sister Smith's response was "perfectly alright". On this aspect, however, the evidence I have found of most assistance is that of Dr Raftos. 69 He said that, when patients decide to leave an emergency department without treatment, staff should attempt to discourage them from doing so. Failing that, they should try to ensure that they seek alternative medical care. The practice in the hospital where he worked was that, if it was clear that a patient could not be persuaded to wait, he or she would be given the names of medical clinics in the area. The patient would not be referred to another public hospital as that was likely to involve another lengthy waiting period. He added that the approach of staff to the situation must be flexible and would depend on a number of variables, including the clinical presentation of the patient, where the patient intended to go upon leaving, the demands upon the resources of the department at the time, the availability of other medical services in the area and their capacity to deal with the patient's condition. 70 Given the unpredictable effects of head injuries, it was clearly in the plaintiff's best interests to remain at the hospital, where there were the resources to observe and respond to any deterioration of his condition. I am satisfied that, if he had, he would not be in his present predicament. I do not understand counsel for the hospital to have argued to the contrary. Dr Raftos considered that, if the plaintiff had been examined by a doctor before midnight, he would have been sent home with advice about the complications of a head injury, but he was the only expert who expressed that view. The others, including Dr Fulde, said that the appropriate course would have been to keep him at the hospital for observation over a four hour period. If that had been done, it is most likely that the significant symptoms which he developed in the small hours of the following morning would have been observed and brain damage would have been averted by prompt surgical intervention. 71 It is true that David Ng's enquiry of Sister Smith would have conveyed to her that the plaintiff and his companions intended to seek treatment elsewhere. Equally, it is true that they attended the city Superclinic without delay. Obviously, however, Dr Katelaris did not have available to him the comprehensive resources of the hospital. Sister Smith did not ask Mr Ng where they intended to go, and did not offer any advice about alternative sources of treatment suitable for the plaintiff's condition, should it deteriorate. Indeed, there is no evidence that there was any suitable source at that time of night other than a public hospital. Sister Smith should have counselled the plaintiff to remain at the hospital, explaining why it was in his interests to do so. 72 The question remains whether the plaintiff would have accepted that advice if it had been tendered. Because of his incapacity, he could not tell us. Nevertheless, it is a matter which he must establish and it would normally be the subject of direct evidence: see, for example, Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. However, in the absence of direct evidence, it might properly be inferred: Qantas Airways Limited v Cameron (1996) 66 FCR 246 per Lindgren J at 293-4. 73 I have referred (par 22) to evidence that the decision to leave the hospital was made by the plaintiff and his companions jointly. That being so, the attitude of his companions if they had been advised to remain at the hospital is not without importance. Li Lang Fu, Li Yun and David Ng were not asked about this, and that is a significant deficiency in the evidence. Counsel for the hospital also relied upon the fact that Tony Chen did not give evidence, given that he was the man with local knowledge to whom Li Lang Fu and Li Yun had turned for help and who might be seen as the most influential member of the group. There was evidence that Mr Chen had been unwilling to communicate with the plaintiff's solicitor and had evaded service of a subpoena. 74 It is to be noted, however, that Mr Chen had David Ng accompany him on both occasions when he was called from his home by the plaintiff's flatmates. Although he had not been in this country any longer than the plaintiff, Mr Ng had a good command of English and was the editor of the newspaper where the plaintiff worked. Clearly, he was also in a position of influence. His evidence, and that of Li Lang Fu and Li Yun, impressed me not only for its honesty but also for its demonstration of their genuine concern for the plaintiff's well being. I have no doubt that they joined in a decision to leave the hospital not through any sense of personal inconvenience, but because they believed it was necessary to ensure that the plaintiff received the treatment which he needed. 75 If the benefits of remaining at the hospital had been explained to Mr Ng, I am satisfied that he would have conveyed that advice to the plaintiff and counselled him to do so. Equally, whatever might have been the attitude of Mr Chen, I am satisfied that the plaintiff would have done so and would have been supported in that decision by his two flatmates. Counsel for the hospital also relied upon the evidence of Dr Katelaris (par 27) that the plaintiff's companions protested when he suggested that they should return to the hospital. That reaction, however, must be understood in the light of the fact that no-one at the hospital had explained to them the benefits of remaining there. They had spent about an hour and a half at that institution and, despite several expressions of concern about the plaintiff's condition, they were told no more than they would have to wait. 76 It is unnecessary to enter into the debate between counsel about the ambit of the duty of a hospital to a person who attends its emergency department and, in particular, the point at which that duty extends to the provision of "complete medical services": Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542 per Reynolds JA at 561. Clearly, the primary duty which the hospital owed to the plaintiff was to assign him his appropriate priority through the triage system and to observe him in the waiting area in case his condition deteriorated. I am content to assume that no duty to provide him with medical services arose until he could be accommodated in the treatment area. 77 The Central Sydney Area Health Service, which administers the hospital, is a statutory authority whose duty was to take reasonable care for the plaintiff's well-being in the circumstances, within the limits of its resources: Crimmins v Stevedoring Industry Finance Committee (1999) ALJR 1, per Gaudron J at par 34. In my view, that duty extended to furnishing the plaintiff with appropriate advice when it was intimated that he might leave the hospital. The hospital failed to discharge that duty, and the plaintiff's present condition is attributable to that failure. 78 The plaintiff is entitled to a verdict against the hospital. The matter will have to be re-listed for the assessment of damages. I have spent some time considering the various bases upon which the hospital was said to be liable, only to dismiss most of them. The heavy demands upon the limited resources of public hospitals are notorious and, for that reason, I consider that the hospital in the present case should be left in no doubt of the limited ground upon which I have found against it. Liability of Dr Katelaris and Superclinics 79 It will be remembered that Dr Katelaris and Superclinics are faced with a claim by the plaintiff and a cross-claim by the hospital. Obviously, neither the plaintiff nor the hospital can succeed against Superclinics, on either of the bases of liability asserted, unless Dr Katelaris himself is found to be liable. To that question I now turn. 80 All the expert evidence was to the effect that Dr Katelaris' examination and treatment of the plaintiff were competent. Equally, if his evidence about the head injury advice he gave is accepted, that advice was appropriate. In final submissions, counsel for the plaintiff and the hospital did not argue the contrary. 81 The plaintiff's case involves a challenge to Dr Katelaris' evidence that he told the group they should return to the hospital and that he gave the detailed head injury advice which he described. It is said that, in any event, he should have firmly advised them to go back to the hospital or attend some other public hospital in the general area (eg St Vincent's Hospital at Darlinghurst), notwithstanding their reluctance to do so. Further, it is said that he allowed the plaintiff to go home without making any enquiry about his domestic arrangements, or about the competence of his companions to maintain the necessary observations and to take prompt action if his condition deteriorated. 82 The doctor's failure to insist that the plaintiff be taken to a hospital, or to satisfy himself of the capacity of those who would be in his company at home to observe and care for him, are also the allegations upon which the hospital's cross-claim is founded. There is no doubt that advice and inquiries of that kind are embraced within the broad duty of care which a doctor owes to a patient: Rogers v Whitaker (1992) 175 CLR 479 at 483. 83 In cross-examination of Dr Katelaris, senior counsel for the plaintiff sought to undermine his credit generally by reference to some material relating to an earlier stage of his medical career and his dealings with his professional indemnity insurer. I say no more than that nothing arose from this exercise bearing significantly upon the honesty of his account of the events of the night in question. 84 Some reliance was also placed upon his demeanour, not only when giving evidence but generally throughout the trial. There is no doubt that Dr Katelaris was a robust advocate in his own cause and there were some episodes of irascible or confrontational behaviour on his part, including some memorable exchanges with senior counsel for the plaintiff. However, on any view of the case, he was in a most stressful situation. As counsel for Superclinics pointed out in final submissions, allowance must be made for the fact that he was involved, without the benefit of legal representation, in lengthy and complex litigation which could have dire consequences for him, both personally and professionally. His evidence was forthright and he did not impress me unfavourably as a witness. In any event, as will be seen, those aspects of his evidence which are challenged find some measure of support in the evidence of the plaintiff's companions. 85 On the question of whether the doctor advised the group to return to the hospital, counsel for the plaintiff relied upon handwritten notes made by Mr Maxwell Connery, solicitor, of his interview with the doctor at his home on 6 July 1990. At that time Mr Connery was acting for the plaintiff, as the solicitor for his Worker's Compensation insurer. Mr Connery gave evidence but, not surprisingly, he had little or no independent recollection of the interview. The handwritten notes themselves disclose that they were read over to Dr Katelaris, who agreed with them. However, he did not sign them and it does not appear that he was given the opportunity to read them himself. There is nothing in the notes to the effect that the doctor told the plaintiff that he should return to the hospital and offered to provide him with a letter to that institution, although they do record that he debated whether to call an ambulance "so that he would have got in the door of the Hospital". 86 In my view, that omission from the notes provides no adequate basis for rejecting the evidence of Dr Katelaris about this matter. It may well be that the doctor did not tell Mr Connery that he had advised the plaintiff to return to the hospital because he did not see that as a significant matter at the time. Mr Connery had given him to understand that he was making enquiries about the incident with an eye to possible proceedings against the hospital only. I find it unnecessary to decide whether he did not tell Mr Connery about his advice to the plaintiff, or whether he did and Mr Connery failed to note it. What the notes do confirm is that he turned his mind to the question whether the plaintiff should return to the hospital. 87 Counsel for the plaintiff also relied upon the fact that there is no reference to this matter in the doctor's clinical notes. However, as the doctor explained, one would not expect there to be any. Those notes do not purport to record any more than his examination and treatment of the plaintiff. 88 As I have observed (par 30), David Ng did not recall that Dr Katelaris advised them to go back to the hospital but he did not deny it. The doctor's evidence (par 27) that he suggested that they return to the hospital for an x-ray is of some significance. (For present purposes, it is not to the point that an x-ray would be unlikely to have achieved anything - see par 51.) Mr Ng's evidence was that the doctor referred to his inability to provide an x-ray. There was conflict in their evidence about whether the doctor said that the clinic had no x-ray facilities, or that it did but they were not available at that time, but for present purposes that also is not to the point. The fact that the question of an x-ray was raised at all supports Dr Katelaris' evidence that he recommended a return to the hospital, where one would expect such a facility to be available. 89 I accept that Dr Katelaris did provide that advice to the group, and that he offered to write a letter in an attempt to ensure that the plaintiff would be seen without delay. I accept also that that recommendation met with firm resistance, such that he saw no point in pursuing it. In evidence, he said that he considered the plaintiff's return home with his companions, armed with head injury advice, to be "very much a fall-back position". He acknowledged that it did not occur to him to recommend that the plaintiff be taken to another public hospital. What the reaction of the plaintiff's companions to that suggestion might have been was not explored in their evidence, but I doubt that it would have been any more favourable. As the evidence of Dr Raftos suggests (par 69), it is likely that they would have faced a long wait at any other hospital in the area. 90 In a letter of 28 July 1988, about three months after the incident, Dr Katelaris wrote that he had instructed the plaintiff's companions to keep him under observation because he was "showing some signs of concussion". From Mr Connery's notes, it seems that he also referred to concussion in the interview with him. On the other hand, there is no reference to it in the doctor's contemporaneous clinical notes. From the evidence of Dr Mellick it appears that the expression could describe a variety of signs and symptoms, but it means that something is abnormal. In evidence, Dr Katelaris said that he used the term because the plaintiff appeared tired. (I have referred to his evidence about that at par 31 of these reasons.) The question whether he described the plaintiff to Mr Connery as "drowsy" was explored in the evidence, but nothing turns on it and it was not addressed at all in final submissions. 91 Dr Raftos thought it appropriate that the plaintiff return home under supervision, given that Dr Katelaris' examination revealed no signs of raised intra cranial pressure. However, he said that that is what a doctor at the hospital would also have done, a view which was not shared by the other experts (see par 70). Dr Mellick considered that neurological observations over four hours were desirable, particularly as Dr Katelaris had observed signs of concussion. However, he was not prepared to say that the course taken by Dr Katelaris was inappropriate, emphasising that it was very much a matter for his clinical judgment in the circumstances. Dr O'Sullivan's opinion was that Dr Katelaris had "followed the usual standards of practice at the time", accepting that he would have been unable to persuade the plaintiff and his companions to return to the hospital. 92 I am satisfied that Dr Katelaris himself saw a return to the hospital as the best course, but I also accept that he could not have persuaded the group to do so. Certainly, the plaintiff has not established the contrary. The question arises, then, whether he might have had the plaintiff remain at the clinic and undertake observations himself over a four hour period. He said that Superclinics did not approve of the use of the clinic as an observation area. He added that a general practitioner would not normally retain a patient at his or her surgery for observations of that kind. In this he was supported by the evidence of Dr Raftos. In any event, he was the only doctor on duty at the clinic that night and may well have had to deal with other patients. There was a receptionist at the clinic but, as counsel for Superclinics pointed out in final submissions, he could not have been entrusted with what is essentially a nursing function. To have kept the plaintiff there for neurological observations was not a practicable option. 93 As I have said, the plaintiff challenges Dr Katelaris' evidence that he furnished detailed head injury advice. His clinical notes include the notation, "Home with friends. Head injury advice given." He was unable to produce a copy of the head injury advice form which he said he gave them, but I consider this to be of little significance. It is clear that advice was furnished at least orally because both Li Yun and David Ng remembered different parts of it (see pars 29 & 30). It is also clear from the expert evidence that the advice which he says he provided was in accordance with the usual practice in head injury cases. For him to have given part only of that advice makes no sense. On this matter also I accept his evidence. 94 The final matter to be resolved is whether Dr Katelaris ought reasonably to have been satisfied that the plaintiff's companions were competent to maintain the observation of him at home which the situation required. Clearly, as Dr Mellick and Dr Raftos explained, that is a matter which a responsible medical practitioner would wish to determine. Counsel for the plaintiff and for the hospital argued that Dr Katelaris had not done so. It was said that he had not made any adequate inquiry about the association between the plaintiff and his companions, about which of those companions actually lived with him, and whether any of them would be sufficiently alert to attend to the plaintiff's needs over the ensuing hours. Counsel for the plaintiff also submitted that the events of the early hours of the following morning demonstrated his friends' inability to deal with the task which Dr Katelaris had assigned them. (I do not understand that last submission to imply that the plaintiff's flatmates should feel in any way responsible for his present condition. At the hearing it was not suggested by any party that they should.) 95 The fact remains that Dr Katelaris entrusted the plaintiff to the care of apparently responsible adults, who appeared to be very concerned about him. In evidence, he said of the plaintiff's companions that they "huddled around him, they were animated about him, they were outraged on his behalf at what had happened". He added that "they appeared to be very good friends", and that he had "a firm impression that they did really care." This is consistent with my own assessment of those of them who gave evidence. Apart from the advice he furnished about signs of deterioration of the plaintiff's condition, he emphasised that the plaintiff must not be left alone. He was relying as interpreter on a man whose command of English was good and who appeared to be conveying his advice to the others. I consider that his conduct was reasonable in the situation with which he was confronted. 96 Asked by Dr Katelaris to express a view about his dealings with the plaintiff generally, Dr Raftos said that they were "within the bounds of competent medical care". In a report Dr O'Sullivan expressed the view that "on the balance of probabilities he did the best under difficult circumstances". I agree. Again, I have found that Dr Tarlington's report adds nothing material to the other expert evidence. 97 Dr Katelaris and Superclinics are entitled to verdicts in their favour on the plaintiff's claim and the hospital's cross-claim. There would appear to be no need to determine Dr Katelaris' cross-claim against the hospital. 98 At a convenient time I shall hear the parties on costs. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.