· web view[note: the uniform civil procedure rules 2005 provide (rule 36.11) that unless the...
TRANSCRIPT
Court of AppealSupreme Court
New South Wales
Case Name: South Western Sydney Local Health District v Gould
Medium Neutral Citation: [2018] NSWCA 69
Hearing Date(s): 19 March 2018
Decision Date: 13 April 2018
Before:
Basten JA at [1]Meagher JA at [8]Leeming JA at [9]
Decision:
1. Appeal allowed.2. Set aside the judgment and orders 1, 2 and 5 made on 30 March 2017, and in lieu thereof, order that the proceedings be dismissed.3. The respondent to pay the appellant’s costs at first instance and on appeal, but to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords: NEGLIGENCE - medical negligence - standard of care for professionals - Civil Liability Act 2002 (NSW) s 5O - injury to plaintiff’s thumb - whether appropriate antibiotics administered - conflicting evidence as to appropriate antibiotic treatment - primary judge found entirety of defendant’s evidence on competent professional practice to be irrational within meaning of s 5O(2) - irrationality not raised on pleadings or mentioned during trial or put to defendant’s experts - primary judge equated irrationality to unreasonableness or more logically probative or insufficiently justified - primary judge relied on dictionary definitions rather than legislative text, context and purpose - trial judge’s finding on irrationality set aside, defence under s 5O upheld and appeal allowed.
Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3C, 5B, 5D, 5OCivil Procedure Act 2005 (NSW), s 77Evidence Act 1995 (NSW), ss 79, 136Health Services Act 1997 (NSW), s 17Interpretation Act 1987 (NSW), s 34Suitors’ Fund Act 1951 (NSW)Supreme Court Act 1970 (NSW), s 75AUniform Civil Procedure Rules, rr 14.7, 36.16, 31.28, 42.1, 51.36
Cases Cited:
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1; [2011] HCA 18Bale v Mills (2011) 81 NSWLR 498Bolitho v City and Hackney Health Authority [1998] AC 232Cabell v Markham 148 F 2d 737 (1945)Cheryala v Minister for Immigration & Border Protection [2018] FCAFC 43Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15Dasreef v Hawchar (2011) 243 CLR 588; [2011] HCA 21Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22Gould v South Western Sydney Local Health District [2017] NSWDC 67Hope v Hunter and New England Area Health Service [2009] NSWDC 307House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44Howe v Fischer [2014] NSWCA 286Hucks v Cole [1993] 4 Med L R 393Hunter & New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12Krnjulac v Lincu [2015] NSWCA 367Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR; [2011] HCA 11Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26Makita (Australia) v Sproules (2001) 52 NSWLR 705; [2001] NSWCA 305McKenna v Hunter & New England Local Health District [2013] NSWCA 476; [2013] Aust Torts Rep 82-156Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14Ministry of Justice v Carter [2010] EWCA Civ 694Naxakis v Western General Hospital
(1999) 197 CLR 269; [1999] HCA 22Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844Piwonski v Knight (2002) 83 SASR 400; [2002] SASC 310Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58Sparks v Hobson; Gray v Hobson [2018] NSWCA 29Sydney South West Area Health Services v MD [2009] NSWCA 343SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Texts Cited:C Mah, “A critical evaluation of the Professional Practice Defence in the Civil Liability Acts” (2014) 37(2) University of Western Australia Law Review 74D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Lawbook Co, 2018)
Category: Principal judgment
Parties:South Western Sydney Local Health District (Appellant)Robert Gould by his tutor Peter Gould (Respondent)
Representation:
Counsel:R Cheney SC and R Sergi (Appellant)A Stone SC and J Masur (Respondent) Solicitors:Curwoods Lawyers (Appellant)Schreuder Partners (Respondent)
File Number(s): 2017/00125757
Publication Restriction: NiI
Decision under appeal:
Court or Tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2017] NSWDC 67
Date of Decision: 30 March 2017
Before: Judge Levy SC
File Number(s): 2014/91004
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENTTable of contents
Basten JA
Meagher JA
Leeming JA
Uncontroversial factual evidence concerning antibiotic prophylaxis
The Therapeutic Guidelines – Antibiotic book
The rejection of the defence under s 5O
Sections 5B and 5O of the Civil Liability Act
Could s 5O be invoked by a corporate defendant?
The extent to which s 5O was raised in the litigation
The evidence of Dr Haertsch
The rejection of Dr Haertsch’s evidence as irrational
The evidence of Professor Gatus
The rejection of Professor Gatus’ evidence as irrational
The reasoning of the primary judge on s 5O should be rejected
The rejection of Dr Haertsch’s and Professor Gatus’ evidence was procedurally unfair
The test of irrationality applied by the primary judge
The text, context and purpose of “irrational” in s 5O(2)
Section 5O(1) is made out
The evidence of Dr Scott
Four miscellaneous points
The two-stage test applied by the primary judge
Conclusions on s 5O
Balance of the appeal: causation
Was the plaintiff exposed to contaminated water?
Was there osteomyelitis?
Would administration of gentamicin have made a difference?
Wet or dry gangrene?
Orders
1 BASTEN JA: The appellant was found liable in negligence to the respondent
for the treatment of the respondent’s injured thumb. There was evidence that
those for whom the appellant was responsible acted in a manner that was
widely accepted in Australia by peer professional opinion as competent
professional practice. That being so, unless the opinion could be rejected as
“irrational”, the appellant did not incur liability, pursuant to s 5O of the Civil
Liability Act 2002 (NSW).
2 I agree with Leeming JA that the respondent’s claim should have been
dismissed under s 5O. I also agree with his reasons, but would add the
following observations, none of which is by way of qualification.
3 The trial judge, as explained by Leeming JA, treated the terms “unreasonable”
and “irrational” as synonyms. At least in some circumstances they are not
synonyms. The description of a decision as unreasonable will involve the
application of an extrinsic standard to an outcome, regardless of the thought
processes of the decision-maker; “irrationality” usually describes the process of
reasoning of the decision-maker. Thus, a decision might be described as
irrational even if there were a logical basis for it, if the decision-making process
were arbitrary.
4 Arguably, “irrational” has more than one meaning in relation to a decision under
consideration by a court. In a strong sense, it may mean that the court can see
no process of logical reasoning by which the decision could be reached. In this
sense, it may not be dissimilar to extreme unreasonableness, because an
objective standard of logicality has been applied to the outcome. However,
“irrational” may be used in a weak sense to refer to the particular process of
reasoning adopted by the maker of the impugned decision.
5 The distinction between unreasonableness and irrationality in the weak sense
can be important where the court cannot stand in the shoes of the decision-
maker. An unreasonable decision cannot usefully be reconsidered by the
decision-maker; an irrational decision can be, if the decision had in fact been
made by tossing a coin, but could be justified on rational grounds. “Could” does
not mean “must”; the decision-maker may properly decline to adopt the same
outcome when applying correct reasoning.
6 In s 5O, “irrational” is being used in the strong sense. If the conduct is judged
by reference to a standard widely accepted by the person’s peers, it will often
not be possible to know why particular individuals accepted it, and it does not
matter. It will only be if the court can, on the evidence, be satisfied that there is
no rational basis for it that it can properly be rejected.
7 To achieve rejection, there may be an evidential burden on the plaintiff, if only
because in the area of professional expertise the court will usually be unable to
dismiss what appears to be widely accepted by trained professionals without
relevant evidence. That burden will not be satisfied by evidence merely
justifying an alternative approach. Yet the evidence in the present case went
no further than that. Accordingly it was not open to the trial judge to dismiss the
evidence that the conduct of the appellant was in accordance with widely
accepted peer opinion. The claim had to be dismissed. I agree with the orders
proposed by Leeming JA.
8 MEAGHER JA: I agree with Leeming JA.
9 LEEMING JA: The respondent to this appeal, Robert Gould, then aged eight,
presented in the emergency department at Campbelltown Hospital in the late
afternoon of 22 August 2011 with an open fracture to his left thumb. A case
history taken at that hospital states:
“8 year old Robert was brought to the ED by grand mother after he fell on a wet cement floor. He was running and slipped and fell, has hit his left hand”.
10 The respondent was transferred by ambulance to Liverpool Hospital, arriving
shortly after 8pm. The clinical notes at both hospitals both refer to “fall on wet
cement”. A doctor who examined him at around 10:30pm made a note
recording “cap [scil capillary] return present in digit”. There appear to have
been two more serious (“category two”) cases in the emergency operating
theatre that evening which required surgery within an hour, and instead the
plaintiff underwent surgery commencing at around 8:30am the following
morning. Although the plaintiff was discharged the following day, gangrene
developed in his thumb leading to its amputation on 15 September 2011.
11 Proceedings were commenced in the District Court of New South Wales in
March 2014 by his tutor (his father). A trial took place over all or parts of five
days in February 2016. The primary judge delivered a very lengthy judgment of
251 pages containing 720 paragraphs on 30 March 2017: Gould v South
Western Sydney Local Health District [2017] NSWDC 67 in which he found in
favour of the plaintiff in the sum of $240,930.10. There were a number of
findings of breach, but only one which was found to have caused the loss of
the plaintiff’s thumb. The causative breach of duty was reflected in a particular
of negligence:
“Failed to use an appropriate antibiotic regime including a second generation cephalosporin plus gentamycin”.
12 The appellant local health district is a body corporate constituted under s 17 of
the Health Services Act 1997 (NSW). It accepted that it had the care, custody
and management of Liverpool Hospital. It challenges the findings of breach and
causation. Both are conveniently illustrated by the finding at [600]:
“Based on Dr Raftos’ evidence, I find that but for the early failure to provide such prophylaxis by the administration of a cephalosporin and gentamycin at Liverpool Hospital at around 23:55 hours on 22 August 2011, the plaintiff would most probably not have suffered the injurious effects of the infection which ultimately resulted in the development of osteomyelitis and gangrene in his left thumb, and which consequently required the described two stages of amputation surgery that he ultimately underwent.”
13 It was and is uncontroversial that a penicillin-derived antibiotic (flucloxacillin)
was administered to the plaintiff at Campbelltown Hospital, and a
cephalosporin (namely, cephazolin), was administered at Liverpool Hospital at
around 23:55 later that evening. The critical element of the finding at [600],
therefore, was the failure to administer an additional antibiotic drug,
gentamicin, that evening. That failure was found to have been a breach of duty
and to have caused the infection which led to the loss of the plaintiff’s left
thumb. The other breaches were found not to have been causative. In the
absence of any submissions (which would have required a notice of
contention) directed to sustaining the judgment on any other basis, no mention
need be made of the other breaches.
14 It will be seen that central to the issues raised on appeal is the choice of
antibiotics administered to the plaintiff. That in turn was informed by (a) how
the plaintiff presented at the hospital, (b) whether there was a widely accepted
peer professional opinion about administering antibiotics in such a case, (c)
whether, as the primary judge found, the amputation was caused by infection,
as opposed to ischaemia (loss of blood to the digit).
15 In what follows, it will be convenient to follow the course adopted by the parties
and separate the issues of breach (including s 5O of the Civil Liability Act 2002
(NSW)) from the issues of causation.
Uncontroversial evidence concerning antibiotic prophylaxis
16 There was a deal of common ground as to the appropriate antibiotic response
to an open wound such as that suffered by the plaintiff on 22 August 2011.
17 First, it was common ground that antibiotics should be administered to prevent
bacterial infection. Associate Professor John Raftos (called by the plaintiff) said
that open fractures are prone to infection because bacteria from the skin and
from the environment have direct access to the bone. Bone infection, known as
osteomyelitis, significantly increases the likelihood of permanent disability or
amputation. The immediate medical management of open fractures is aimed at
minimising the risk of infection.
18 Secondly, in the case of clean wounds, such as a cut with a knife, the most
likely source of bacterial infection is bacteria living on the skin, especially,
staphylococcus aureus. Flucloxacillin is a penicillin-derived, narrow spectrum
antibiotic which is specifically active against staphylococcus aureus.
Flucloxacilin was administered intravenously to the plaintiff at Campbelltown
hospital.
19 Thirdly, there is a class of antibiotic drugs known as cephalosporins. The
parties provided joint responses to inquiries from the primary judge in relation
to the “second generation cephalosporins” referred to in the pleading. They
confirmed that cephazolin was a first generation cephalosporin. (It is not clear
to me that the evidence established what second generation cephalosporins
were; nothing turns on this for the purposes of this appeal.)
20 Fourthly, cephazolin was administered intravenously to the plaintiff from the
late evening at Liverpool Hospital. The two experts called by the parties who
gave concurrent evidence, Associate Professors Raftos and Gatus, agreed
with the appropriateness of administering cephazolin to an open fracture such
as that suffered by the plaintiff.
21 Fifthly, gentamicin is an antibiotic which is effective against “gram-negative”
organisms such as those found in faecal matter. There was debate between
the experts about the circumstances in which gentamicin should be
administered, to which it will be necessary to refer in more detail.
The Therapeutic Guidelines – Antibiotic book
22 In 2011 the book called “Therapeutic Guidelines – Antibiotic” was in its 14th
edition. It contained advice concerning the administration of antibiotics in
particular categories, including open compound fractures. It recommended a
range of antibiotics, depending on (a) whether the patient was hypersensitive
to penicillin, (b) whether the soiling or tissue damage was severe, (c) whether
devitalised tissue was present, and (d) whether there had been “significant
fresh or salt water exposure”. The antibiotic gentamicin was not recommended
in that book.
23 The entirety of the section dealing with antibiotic prophylaxis of open fractures
is reproduced in Annexure “A”. The most salient portion was as follows:
“COMPOUND (OPEN) FRACTURES
Management of compound (open) fractures requires urgent orthopaedic consultation. Irrigation is a key component in preventing infection after an open fracture, as it serves to decrease bacterial load and remove foreign bodies. There is insufficient evidence to support the use of local antibiotic therapies such as beads.
The patient with a compound fracture should have their immune status to tetanus assessed (see Table 19, p.294). Prophylaxis or early treatment directed particularly against Staphylococcus aureus should be given:
di/flucloxacillin 2 g (child: 50 mg/kg up to 2 g) IV, 6-hourly.
…
If wound soiling or tissue damage is severe and/or devitalised tissue is present, use:
…
For patients with immediate penicillin hypersensitivity (see Table 2, p.40), or if there has been significant fresh or salt water exposure, use:
Ciprofloxacin 400 mg (child: 10 mg/kg up to 400 mg) IV, 12-hourly or ciprofloxacin 750 mg (child: 20 mg/kg up to 750 mg) orally, 12-hourly
PLUS EITHER
Clindamycin 450 mg (child: 10 mg/kg up to 450 mg) IV or orally, 8-hourly
OR
Lincomycin 600 mg (child: 15 mg/kg up to 600 mg) IV, 8-hourly then clindamycin 450 mg (Child: 10 mg/kg up to 450 mg) orally, 8-hourly.
Duration of treatment should be for 5 to 7 days, or longer if bone infection is established (see Table 3, p.44).”
24 The following matters follow from that section of the book:
(1) The book does not in any circumstances recommend the administration of gentamicin.
(2) The antibiotics administered to the plaintiff – initially flucloxacillin followed by cephazolin – were consistent with the advice in the book.
(3) The final section extracted above required consideration of whether there had been “significant fresh or saltwater exposure”, in which case a combination of antibiotics was to be administered.
25 The book was the subject of competing opinions by Professors Raftos and
Gatus as to whether it was a “de facto” standard or rather a work which tended
to be used by junior doctors. Professor Gatus said that “these guidelines have
been established to have standard treatment regimes nationally” and that they
were evidence-based. He said that gentamicin did not appear in the Guidelines
“on evidence” and rejected what he described as the practice of medicine
“according to whims”, by which he meant administering antibiotics other than
on the basis of evidence. There was also debate between Professors Gatus
and Raftos as to what amounted to “significant exposure” to water.
26 The evidence was that ciprofloxacin was an alternative to gentamicin. It was
common ground that its administration would have been inappropriate.
The rejection of the defence under s 5O
27 The statement of claim is a sparse document which does not mention the Civil
Liability Act. The defence relied, in terms, upon ss 5B and 5D (which govern
breach and causation), and, by way of positive defence, asserted that, by its
servants or agents, the local health district acted in a manner that (at the time
the service was provided) was “widely accepted in Australia by peer
professional opinion as competent professional practice” so as to engage s 5O.
There was no reply, and accordingly, there was an implied joinder of issue on
the defence: UCPR r 14.7(2).
Sections 5B and 5O of the Civil Liability Act
28 Section 5B(1) of the Civil Liability Act provides that “A person is not negligent in
failing to take precautions against a risk of harm unless” (a) the risk was
foreseeable, (b) the risk was not insignificant, and (c) in the circumstances, a
reasonable person in the person’s position would have taken those
precautions. The provision is obviously informed by the formulation in Wyong
Shire Council v Shirt (1980) 146 CLR 40 at 47; [1980] HCA 12, although the
test of real (as opposed to far-fetched or fanciful) risk of harm has been
replaced by a risk of harm that is “not insignificant” in s 5B(1)(b). It will be seen
that s 5B does not in terms prescribe when there has been a breach of duty.
Rather, it states a necessary condition absent which a defendant cannot be
found to be negligent. “Negligence” is defined to mean, throughout Part 1A of
the Act, “failure to exercise reasonable care and skill”
29 Section 5O provides as follows
“5O Standard of care for professionals
(1) A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.”
30 I shall return below to the construction of s 5O and how that section interacts
with s 5B. For present, it suffices to note the following propositions, which I
regard as uncontroversial:
(1) it is settled that the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a “professional” and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice): Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]-[61] and Sydney South West Area Health Services v MD [2009] NSWCA 343 at [20]-[21], [51] and [58];
(2) it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted;
(3) it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted;
(4) subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence;
(5) if the court considers that the opinion is irrational, then the section does not to that extent apply;
(6) the test of “irrational” in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion.
Could s 5O be invoked by a corporate defendant?
31 The primary judge held that a body corporate such as the appellant could seek
to rely upon s 5O: at [614]. Although there was no argument on the point in this
Court, there appears to be a more straightforward way, which avoids the
awkwardness of a body corporate practising a profession, by which s 5O was
available.
32 The statement of claim failed to articulate the existence of a duty of care, its
content, by whom it was owed, or the risk of harm against which reasonable
precautions should have been taken. Unsurprisingly, no attempt was made at
trial to articulate the basis on which the local health district was said to be
liable, ie directly through breach of a non-delegable duty, or vicariously, or
otherwise.
33 The defence invoked s 5O by reference to the service provided “by its servants
or agents”, namely, the medical practitioners at Liverpool Hospital. That was an
appropriate course, because the references in that section to a “person
practising a profession” and to “peer professional opinion” are most naturally
read as references to the conduct of medical practitioners, not to public health
organisations such as the appellant. Although there was no allegation of
vicarious liability, it would appear that the approach adopted at trial amounted
to an implicit acknowledgement that the appellant was vicariously liable for any
negligence by the practitioners at the hospitals it operated. Certainly, that was
what was recorded by the primary judge at [483] and [612].
34 Section 3C of the Civil Liability Act provides that “Any provision of this Act that
excludes or limits the civil liability of a person for a tort also operates to exclude
or limit the vicarious liability of another person for that tort.” That would appear
to be a straightforward way by which the conclusion (which was common
ground on appeal) is reached that the appellant obtained the benefit of s 5O.
The extent to which s 5O was raised in the litigation
35 At the conclusion of the trial, the plaintiff made no oral or written submissions in
relation to the availability of s 5O. The question was raised by the judge, and
leave was granted for the defendant to supply supplementary submissions on
s 5O, which occurred on 17 March 2016. No submissions appear to have been
made at any time on s 5O(2).
36 The primary judge considered that the four medical doctors who had given
opinion evidence should each be considered as “peers” in Australia for the
purposes of the section: at [618]. The four doctors were Associate Professor
Raftos and Dr Mansour (called by the plaintiff) and Associate Professor Gatus
and Dr Haertsch (called by the defendant).
37 The primary judge made no express finding that it was widely accepted in
Australia in 2011 by peer professional opinion that it was competent
professional practice to administer only a cephalosporin to a compound
fracture such as that presented by the plaintiff on 22 August 2011. The
appellant submitted that such a finding was implicit, because the primary judge
could only reach s 5O(2) if his Honour had formed that view. I doubt whether
that is so, although it is not necessary to express a concluded view.
38 However, at [623]-[635], the primary judge regarded the entirety of Dr
Haertsch’s opinions as being “irrational” within the meaning of s 5O(2). Further,
at [636]-[672], the primary judge regarded the relevant opinions of Professor
Gatus as likewise being irrational and not available to ground a defence under
s 5O. It followed that the s 5O defence was not made out.
39 For the reasons given below, the reasoning of the primary judge that the
opinions of the defendant’s experts were irrational cannot be sustained, both
because it was procedurally unfair, and because his Honour applied the wrong
legal test. This Court can and should, in accordance with s 75A(10) of the
Supreme Court Act 1970 (NSW), find that s 5O was a complete answer to the
allegation that the failure to administer gentamicin was a breach of duty. That is
dispositive of this appeal.
The evidence of Dr Haertsch
40 Dr Haertsch’s evidence was admitted without objection. He was not required to
attend for cross-examination. The plaintiff made no submission that his
opinions were irrational within the meaning of s 5O(2). Indeed, s 5O(2) was not
in issue at trial. Nor does it appear to have been raised by the primary judge in
any of his Honour’s communications with the parties towards the end of 2016,
when judgment had been reserved for many months (there seem to have been
at least four such communications, although this Court was told that some
could not be located). It would therefore have come as a complete surprise to
the parties that the entirety of Dr Haertsch’s evidence was found to be
irrational. It would also have come as a complete surprise to Dr Haertsch
himself.
41 Dr Haertsch concluded that:
“at no time have I found that the hospital and nursing staff of Liverpool Hospital in particular, that the time the service was provided, they acted in a manner other than that which is accepted as competent professional medical practice.”
42 Parts of Dr Haertsch’s evidence may be passed over, because they went to a
matter which was at issue at trial, but not on appeal (namely, whether the
plaintiff should have undergone surgery on the evening of 22 August, rather
than the morning of 23 August), although this evidence was also held to be
“irrational”. However, in relation to the antibiotics administered to the plaintiff,
and in support of his general conclusion reproduced above, Dr Haertsch gave
the following evidence:
“d) I do not see any evidence that there was a failure to heed the manner in which he was injured. Given the nature of the injury I suspect that it was more blunt trauma, rather than a fall, however irrespective, he was given appropriate antibiotic therapy, given that he had a compound injury.
e) There is no evidence to suggest that he was given other than an appropriate antibiotic regime, in fact at one stage he was also given Flagyl. I do not believe that Gentamycin was indicated, particularly in such a young child.
f) There is no evidence that he was unnecessarily exposed to the risk of developing an osteomyelitis as a result of an untreated bacterial contamination of the wound. Whilst it is evident that he developed necrosis (gangrene) of the overlying skin, it was dry, suggesting an ischaemic event as opposed to an infective cause as an infective cause would have caused a wet gangrene.”
The rejection of Dr Haertsch’s evidence as irrational
43 The primary judge rejected Dr Haertsch’s opinions because they were
proffered “without soundly-based supporting reasoning” and were therefore
irrational: at [626]. In one respect his opinion was said to be factually
inaccurate, which the primary judge said “raises doubt about the logic, the
completeness and the applicability of Dr Haertsch’s analysis”, in which sense
the opinion was said to be “not reasonable, or soundly based, and it should
therefore be seen as being an irrational view”: at [627]. The primary judge
considered that Dr Haertsch’s reasons did not identify the mechanism of the
plaintiff’s injury and did not appear to have considered the various factual
descriptions of the circumstances in which the injury occurred. The primary
judge continued:
“In the sense that Dr Haertsch’s primary opinion involved an incomplete consideration of those relevant factual matters, it was not adequately reasoned, and it was therefore an unsound and irrational view”: at [629].
44 Subsequently, at [630]-[631], his Honour further relied upon inadequate
reasoning as to the basis of an opinion, invoking Makita (Australia) v Sproules
(2001) 52 NSWLR 705; [2001] NSWCA 305 and Dasreef v Hawchar (2011)
243 CLR 588; [2011] HCA 21 in terms. This strand of the reasoning concluded:
“Dr Haertsch’s view did not deal with the relative risk of harm the plaintiff faced in the clinical setting, in juxtaposition with the relative incidence of side effects from antibiotics, irrespective of stratification of risk on account of the plaintiff’s young age. Dr Haertsch’s cited view was therefore irrational because it was not logically explained”: at [630].
45 These matters were drawn together by the primary judge in his rejection as
irrational of Dr Haertsch’s analysis of causation. The primary judge said at
[632] that Dr Haertsch:
“… did not sufficiently expose his reasoning process, and it did not rationally deal with other relevant aspects of the evidence, such as the cited reasoned opinion of Dr Raftos to the contrary, which was supported by the observations of Mrs Gould cited at paragraphs [10] to [11] above, the matters contemporaneously recorded in the Campbelltown Hospital notes (Exhibit ‘1’, Tab 2, pp 319; 341; 361), the contemporaneous nursing notes made at Liverpool Hospital on 6 September 2011; Exhibit ‘1’, Tab 1, p 36, and Dr Raftos’ interpretation of the photograph comprising Exhibit ‘F’. The irrationality of Dr Haertsch’s opinion arises from the absence of a reasoned analysis of these matters. Therefore, Dr Haertsch’s views should be seen as being unreasonable and irrational on this point.”
46 The primary judge concluded at [635]:
“For the foregoing reasons, I do not accept Dr Haertsch’s evidence as set out in his two cited reports as being a reliable basis upon which to successfully ground a s 5O defence. This is because his cited opinions are not sufficiently founded upon a logical or a rational analysis, and as such, they should be taken to be irrational views, and those views should not be taken to reliably base such a defence: s 5O(2) of the CL Act.”
The evidence of Professor Gatus
47 Professor Gatus provided two reports, participated in a conclave with Professor
Raftos and was cross-examined. Insofar as is relevant to appropriate antibiotic
treatment, his evidence was as follows.
48 In his first report, he referred to the publication Therapeutic Guidelines -
Antibiotic (2010). He said that the guidelines were “referred to widely by
medical practitioners in this country” and to some extent were a “de facto
standard”.
49 Professor Gatus squarely addressed the particular of negligence that involved
failing to use gentamicin. He said:
“In 2011, Gentamicin did not appear in the recommendations found in Therapeutic Guidelines – Antibiotic (2010) for the prophylaxis of compound (open) fractures and therefore, the assertion this antibiotic should have been added to the antibiotic regimen was unsupported.
The administration of flucloxacillin followed by cephazolin was in keeping with the recommendations found in Therapeutic Guidelines – Antibiotic (2010) and was commensurate with the nature of the injury and the clinical findings.
The allegation (e) ‘failed to use an appropriate antibiotic regimen including a second generation cephalosporin plus gentamicin’ was not in keeping with the recommendations in 2011.”
50 Professor Gatus’s second report responded to the plaintiff’s reports of
Professor Raftos and Dr Mansour. Professor Gatus said that there were two
important features of the history provided on 22 August 2011, namely, that the
history did not indicate that a crush injury to the thumb had occurred and there
was no immersion of the hand in water. Professor Gatus was conscious that
the history given on 22 August was different from that obtained subsequently.
51 Much of the report was directed to the issue of causation, namely, whether the
necrosis of the plaintiff’s thumb was due to infection (associated with wet
gangrene) or ischaemia (associated with dry gangrene). On the appropriate
antibiotic prophylaxis, Professor Gatus referred to the paragraph from
Therapeutic Guidelines – Antibiotic (2010) referred to above and its reference
to “significant fresh or salt water” exposure. Professor Gatus explained:
“The reason why ciprofloxacin is recommended as alternative prophylaxis for open fractures – if there has been significant fresh or salt water exposure – is that aeromonas species and vibrio species of bacteria might be found in fresh or salt water and therefore, might be a risk of infection occurring with these organisms.
My interpretation of the comment in Therapeutic Guidelines – Antibiotic (2010) ‘significant fresh or saltwater exposure’ is that the word ‘significant’ implies immersion in water.
The history given by Robert’s grandmother is that he slipped and fell over on wet cement and this [is] not the same as being immersed in water.
…
The history of the accident as given by Robert’s grandmother on 22/8/11 did not indicate significant fresh or saltwater exposure and my opinion is that ciprofloxacin was not required as anti-microbial prophylaxis.” (original emphasis)
52 Professors Gatus and Raftos participated in an expert conclave on 27 January
2016. Both agreed that, in light of the history given, the administration of
cephazolin at Liverpool Hospital was appropriate. Professor Gatus disagreed
that ciprofloxacin or gentamicin should have been administered as well, giving
as his reasons (1) gentamicin was not recommended in the Therapeutic
Guidelines and (2) ciprofloxacin was only recommended for fractures which
occur in a marine environment. Professor Raftos agreed with Professor
Gatus’s opinion about ciprofloxacin, but added:
“Putting the therapeutic guidelines aside, standard practice in the hospitals in which I work is to consider adding gentamycin for severely contaminated wounds”.
53 That reflected a significant change in the opinion expressed by Professor
Raftos. Initially he had said that administering gentamicin was mandatory in a
case such as this. After considering the views of Professor Gatus, he altered
his opinion: a practitioner should merely consider administering gentamicin in a
case such as this. (No criticism of Professor Raftos is intended; the narrowing
of differences in expert opinions is the ordinary and intended product of the
expert witness guidelines and the process of meeting in conclave with the
experts retained by the other side.)
54 The professors gave concurrent evidence on the fourth day of the trial, most of
which was directed to their competing views as to the cause of the loss of the
plaintiff’s thumb and whether it had been appropriate to defer surgery until the
following morning. Professor Raftos was not asked about his (revised) view
that gentamicin should have been considered, although he maintained that the
administration of flucloxacillin at Campbelltown Hospital was inappropriate. The
first point made by Professor Gatus, when given an opportunity to comment on
Professor Raftos’s evidence, was directed to the administration of antibiotics.
His evidence was as follows:
“WITNESS GATUS: Thank you. Number 1, I disagree with Professor Raftos in his opinion about the administration of prophylactic antibiotics. In 2010 there was an Australian publication called Therapeutic Guidelines - Antibiotic. This book is a de facto standard for the prescribing of antibiotics in this country for a host of infectious conditions. The recommendations are derived by evidence of the literature and past experience and are put together by expert people, experts in microbiology and infectious diseases. In that edition the recommendations for prophylaxis for an open fracture was flucloxacillin.
There is no mention in the guidelines about the use of gentamicin, and there are two reasons for that. Number 1, it is not efficacious for an open fracture, and number 2, it can be a very nasty antibiotic, and it can give you irreversible vestibular toxicity, where you can’t walk for the rest of your life.
As I reiterate, it does not appear in those guidelines. The reason for flucloxacillin being recommended is that the organism we fear is an organism called staphylococcus aureus, and it’s a thing which lives on the skin of maybe 40% of people on the earth. We know from experience that when you have an open fracture this organism residing on your skin can enter that fracture and cause an infection, hence flucloxacillin is the antibiotic of choice. If you’re allergic to flucloxacillin you are given an alternative, and the alternative is cephazolin, and cephazolin has activity against staphylococcus aereus. I disagree with Professor Raftos, who said that cephazolin is a broad spectrum antibiotic and is given to cover other organisms which flucloxacillin does not. In therapeutic guidelines, the recommendations for the use of cephazolin is to patients who are allergic to penicillin and therefore flucloxacillin.
So both these antibiotics are given for the same reason, and I reiterate, to prevent infection with staphylococcus aereus.”
55 However, Professor Raftos said that:
“standard practice at the time in the hospitals in which I worked was to use cephazolin as the primary antibiotic for open fractures and to consider the use of gentamicin”.
Professor Raftos added that he thought that that was:
“standard practice around the world, for the reason that certainly, staphylococcus causes a large proportion of wound infections and osteomyelitis in open fractures, but it’s not the only cause”.
Professor Raftos added that “this injury occurred in dirty water”.
56 The primary judge asked Professor Raftos to make a different assumption,
namely, that the injury occurred with an eight-year-old child playing with a rock,
to which Professor Raftos responded that it did not matter
“whether a person with an open fracture was injured in the dirt or on a street, there was a possibility that bacteria from the environment (as well as from the skin) might cause the infection”
and
“certainly standard practice in the hospitals in which I work would be to treat those patients with a slightly different antibiotic regimen than that which you would use for a person who had an open fracture in an uncontaminated sort of environment.”
57 The primary judge then asked Professor Raftos whether the guidelines for the
use of antibiotics were to be adhered to slavishly, or rather required
interpretation on a case by case basis, to which Professor Raftos responded:
“Very junior doctors may consult the guidelines. Senior doctors tend not to use them, tend to use experience. They are recommendations from a group of people.”
58 Professor Gatus confirmed that there was a low incidence of vestibular toxicity
with the use of gentamicin, but added that “when it happens, it’s irreversible”.
For that reason, and because there were alternative antibiotics, he disfavoured
the use of gentamicin.
59 Professor Gatus said:
“[T]hese guidelines have been established to have standard treatment regimes nationally, and I say nationally. In addition to these guidelines, we have a thing now called antibiotic stewardship. This is a program, it’s national, it’s worldwide. We’re trying to get the use of antibiotics down – the inappropriate use, we’re trying to get it down, because if we don’t, resistance is a huge issue, and we’re going to be in big, big trouble.”
60 The primary judge then asked whether the decision to apply or not apply a
particular antibiotic was to be undertaken on a case-by-case basis, which
Professor Gatus denied, adding that that had been the position for many years,
including in 2011. Professor Gatus reiterated his disagreement with Dr Raftos,
which was on two bases. First, there was a low risk of gross morbidity because
of an impairment to the body’s balance mechanism with the administration of
gentamicin. Secondly, Professor Gatus reiterated that gentamicin did not
appear in the guidelines, and so “the question is a non-starter to begin with,
because it is not there on evidence, and that’s why we don’t use it”.
61 Professor Gatus was then referred to what Professor Raftos had said about
contamination from the environment, to which Professor Gatus responded that
falling on wet cement was not, in his view, the significant exposure to fresh or
salt water referred to in the therapeutic guidelines.
The rejection of Professor Gatus’ evidence as irrational
62 The evidence of Professor Gatus was also admitted without objection. Unlike
Dr Haertsch, Professor Gatus participated in an expert conclave and gave
concurrent evidence with Dr Raftos. Unlike Dr Haertsch, Professor Gatus’
opinions were accompanied by fully articulated reasons. However, no
differently from Dr Haertsch, it was not put to Professor Gatus that his evidence
was irrational.
63 Once again, the primary judge rejected all salient aspects of Professor Gatus’s
evidence as irrational within the meaning of s 5O(2): at [636]-[672]. The
primary judge’s main criticism insofar as was relevant to the appropriate
antibiotic prophylaxis was grounded in his acceptance of Professor Raftos’s
evidence that treatment should be administered on a case-by-case basis rather
than on an epidemiological basis. Thus, at [643], the primary judge said:
“On the issue of antibiotic prophylaxis the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship, without considering the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed, must be seen to be an irrational approach.”
64 In doing so, his Honour referred back to what he had said on this topic
hundreds of paragraphs earlier in his judgment. The fullest statement of the
primary judge’s views is found at [407]-[409]:
“In articulating his view about the inappropriate use of antibiotics, Professor Gatus disagreed with Dr Raftos’ view that the guidelines were to be applied clinically according to the experience of the clinician. In rejecting that proposition, Professor Gatus did not accept that the use of guidelines for determining which antibiotic to use should be considered on a case by case basis, referring to such an approach as being [practice] according to whims: T130.13 – T130.39. I consider that his answer to that effect to be unduly dismissive of the clinical decision-making process. It fails to adequately explain how the relative risk to the patient, and the patient’s specific antibiotic needs, is balanced against the principles of antibiotic stewardship in cases where a clinician gives consideration to the pros and cons of administering an antibiotic to which stewardship considerations might ordinarily apply. Accordingly, I consider Dr Raftos’ views on this issue should be preferred on grounds of rationality.
I considered Professor Gatus’ commentary in that regard to be misdirected, and overstated in the context of determining the reasonable treatment needs of the plaintiff according to the requirements of the need to appropriately discharge the duty of care owed. In that regard, I consider that an analytical process achieved by a reasoned clinical judgment, as explained by Dr Raftos, should prevail over an approach that involves adherence to general guidelines simply because they exist.
This is so especially where there is a risk that if such guidelines are applied according to considerations that place the interest of promoting adherence to guidelines of general application ahead of the best interests of the individual patient. It must be recognised that it is the patient who carries the risk of an adverse outcome if inadequate consideration is applied to the reasonable treatment needs of that patient.”
65 It is difficult to resist the inference that the primary judge conflated the ordinary
process of resolving a conflict between competing expert opinions, with the
entirely different process required by s 5O(2) of determining whether an
opinion is “irrational”. The primary judge regarded Professor Gatus’ views
insofar as they were based on antibiotic stewardship as reflected in the
guidelines as “misdirected” and “overstated” in contrast with those of Professor
Raftos, which were to be “preferred on grounds of rationality”; the sense of his
Honour’s reasons is that because the views of the Professor Raftos were more
rational or better reasoned, those of Professor Gatus were irrational.
66 On the topic of what amounted to “significant fresh or saltwater exposure”, the
primary judge referred at [663] to his earlier analysis at [414], [419], [460]-[461]
and [597]. In those paragraphs Professor Gatus was criticised for concluding
that significant exposure to fresh or salt water required immersion. The fullest
treatment was at [460]-[461]. The primary judge regarded Professor Gatus’s
view as involving “an unreasonable and unduly narrow and subjective
interpretation” of the guidelines, stating that “the logic and subjective nature of
Professor Gatus’s argument on this asserted pre-condition of immersion was
unpersuasive” and adding,
“it is difficult to see how a history of contact with a wet cement or a concrete surface, floor or pathway, which could not reasonably be assumed to have been clean, in a microbial sense, was materially different from immersion in water, when it came to clinically weighing the risks of possible exposure to infection or infection taking hold in the plaintiff’s wound”.
67 It is convenient to say something in relation to this last point immediately. The
primary judge pointed to no evidence supportive of this aspect of his reasoning,
which, at least to my mind, seems contrary to common sense. Immersion of
exposed bone in contaminated water seems substantially more likely to
facilitate transmission of water-borne microbes than exposure of bone to a wet
surface. There must surely be a greater possibility of direct transmission from
water to the exposed bone and bodily fluids in the former case, if only as a
matter of surface area. In the case of contact with wet cement, not all of the
exposed bone would contact the wet surface, but in the case of immersion, all
of the exposed bone would be exposed to water. Certainly, there was no
evidence that the risk of microbial infection was the same for contact with a wet
surface as it was for immersion in contaminated water. And, as will be seen,
there was testimonial evidence to which the primary judge did not refer,
concerning the lamentable reality that wet weather leads to an influx in
emergency departments of motorcycle injuries, which bore directly on this
point.
The reasoning of the primary judge on s 5O should be rejected
68 There are two difficulties with the reasoning process of the primary judge: it
was procedurally unfair and it misapplied the test in s 5O(2).
The rejection of Dr Haertsch’s and Professor Gatus’ evidence was procedurally unfair
69 Mason CJ and Gaudron J said in Banque Commerciale SA en Liquidation v
Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7; [1990] HCA 11:
“[P]leadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.”
See also Krnjulac v Lincu [2015] NSWCA 367 at [15]-[18].
70 If the defendant’s peer professional opinion evidence in support of its defence
under s 5O(1) were to be disregarded because it was irrational within the
meaning of s 5O(2), then one of three things needed to have occurred. Ideally,
s 5O(2) would have been pleaded, and thus whether the evidence was
irrational would have been raised as an issue on the pleadings (in most cases,
including the present, that would have required a reply). Alternatively, the
parties might have chosen to depart from the issues raised in the pleadings to
fight the case on that basis. A further alternative is suggested by the way in
which s 5O(2) is directed to courts. It is possible that both parties might accept
that the peer professional opinion evidence which had been adduced was not
irrational, but that the court might consider that it was. This might be thought to
be unlikely, having regard to the nature of litigation, but it is possible. In that
case, it would be necessary for the court to raise with the parties the prospect
that the evidence might be considered irrational, so as to give them an
opportunity to be heard (and, if appropriate, adduce evidence directed to that
prospect).
71 Section 5O(2) was not pleaded, nor mentioned throughout the trial. Nor was it
suggested at any stage that the defendant’s peer professional opinion
evidence was irrational. After hearing final submissions, the primary judge
invited the parties to provide further submissions directed to whether s 5O was
available to a corporate defendant. The defendant supplied further
submissions; if the plaintiff did, they were not provided to this Court. Once
again, neither in the invitation from the primary judge or in the submissions
supplied was there any mention of irrationality.
72 It was wrong for the primary judge to reject the evidence of Dr Haertsch as
irrational when no complaint was made about it by the plaintiff, and no warning
was given to the defendant or, for that matter, to Dr Haertsch that that might
occur. The same is true of the rejection of Professor Gatus’ views. It was no
part of the plaintiff’s case that his views were irrational, nor so far as the
transcript records did the primary judge advise that he might form that view.
None of this was procedurally fair to the defendant.
73 Further, it may be that the plaintiff would have expressed a view that the judge
not take the course which was taken, which has led to ground 1 of this appeal:
see for example what was said in Farah Constructions Pty Ltd v Say-Dee Pty
Ltd (2007) 230 CLR 89; [2007] HCA 22 at [133] as to the possibility that a
respondent “might have wished to say something against deciding the case on
that basis, or in that particular way”. Plaintiffs seldom wish to obtain judgment
in their favour in circumstances that are procedurally unfair.
74 Although this was ground 1 of the appeal, no submissions were made in writing
or orally seeking to defend the approach taken by the primary judge as
procedurally fair.
75 In those circumstances, it was not open to the primary judge to make the
findings made under s 5O(2).
The test of irrationality applied by the primary judge
76 Moreover, even if a procedurally fair course had been adopted, the test of
irrationality required by s 5O(2) is not that applied by the primary judge. There
were three elements in his Honour’s reasons.
(1) First, the primary judge followed an approach he had previously taken in Hope v Hunter and New England Area Health Service [2009] NSWDC 307 at [174]. In the earlier decision, his Honour said that “irrational” did not mean “without reasons”, but rather referred to “reasons that are illogical, unreasonable or based on irrelevant considerations”. His
Honour gave no explanation for that construction. Likewise, his Honour gave no explanation in the present judgment for applying the same test.
(2) Secondly, his Honour added, at [620], that he regarded the term as being used “in the non-pejorative sense”. What his Honour intended to convey by that is not clear, although this may explain the readiness with which the primary judge was able to be satisfied of irrationality sufficient to engage s 5O(2).
(3) Thirdly, his Honour then proceeded to give dictionary definitions of “unreasonableness”, namely, as meaning “without sound or logical reasons, or not endowed or guided by reason”: at [621].
77 This is a relatively extreme example of reliance on dictionaries as a substitute
for applying the principles of statutory construction. It led to error. Because
variants of it recur, it may be worth seeking to explain the error in some detail.
78 The legal meaning of a statutory term is but rarely assisted by resort to a
dictionary definition. On at least three occasions, joint judgments of a majority
of the High Court have approved Learned Hand J’s statement in Cabell v
Markham 148 F 2d 737 at 739 (1945) to the effect that a mature and developed
jurisprudence does not “make a fortress out of the dictionary”. In Commissioner
of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49],
French CJ, Heydon, Crennan and Bell JJ said that there was a well-recognised
danger in making a fortress out of the dictionary when interpreting a statute.
See also Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000]
HCA 33 at [27] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014]
HCA 12 at [23]. The fact that one of the meanings in a dictionary may support
the legal meaning of a statutory term chosen by a court does little to provide a
basis for a conclusion as to legal meaning. It often does no more than to
provide the illusory comfort that the court’s construction is supported by
common usage. Mason P, with whom Stein and Giles JJA agreed, endorsed
the remark of Randolph J of the United States Court of Appeals for the District
of Columbia Circuit, writing extra-judicially:
“[C]iting ... dictionaries creates a sort of optical illusion, conveying the existence of certainty – or ‘plainness’ – when appearance may be all there is”: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].
79 A dictionary will give a range of meanings of a word. The task of a court is to
identify, from text, context and purpose, the particular meaning that a statutory
provision bears. The function of a dictionary and the function perfomed by a
court construing a statute are utterly different. It must be borne in mind that the
meaning of any word used in a statute depends on the context and purpose of
the legislation in which it appears: Coverdale v West Coast Council (2016) 259
CLR 164; [2016] HCA 15 at [18].
80 That dictionaries tend to be unhelpful is accepted in modern Australian
appellate courts. Mason P said that dictionaries “can illustrate usage in context,
but can never enter the particular interpretative task confronting a person
required to construe a particular document for a particular purpose”: House of
Peace at [25]. In Minister for Immigration and Multicultural Affairs v Khawar
(2002) 210 CLR 1; [2002] HCA 14 at [103]-[111], Kirby J candidly
acknowledged that he was “now inclined to see more clearly than before the
dangers in the use of dictionary definitions”, principally because of the need to
have regard to context and purpose. I respectfully agree with Weinberg J’s
observation in Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at
[163], recently endorsed in Cheryala v Minister for Immigration & Border
Protection [2018] FCAFC 43 at [31] and [44]:
“Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation.”
81 A dictionary may assist if a question truly arises as to the meaning of a word,
especially if it is an historical meaning (in House of Peace, the question was
whether use as a “church” in a 1954 development consent comprehended use
as a mosque). It may also be accepted that a dictionary may assist a court in
identifying the full range of literal meanings a statute might bear, although it is
unlikely that modern statutes, which tend to be drafted by parliamentary
counsel, will use language that requires resort to a dictionary definition. But
even in cases where a dictionary might assist at the outset, the court’s task is
not accomplished by surveying the range of meanings found in a dictionary and
choosing that which seems most apt. Doing so may often disguise the real
reasons which favour a particular legal meaning. As McHugh J said in Kelly v
The Queen (2004) 218 CLR 216; [2004] HCA 12 at [98], “The literal meaning of
the legislative text is the beginning, not the end, of the search for the intention
of the legislature.”
82 But the primary judge did not rely on dictionary definitions of “irrational”. His
Honour resorted to definitions of “unreasonable”. The court’s task of
ascertaining the legal meaning of statutory language is not accomplished by
choosing one possible meaning from a dictionary definition of what is said to be
a synonym of the statutory text. Indeed, in many contexts the words are not
true synonyms, notwithstanding their cognate etymologies.
83 It is trite that statutory construction requires regard to be had to the text,
together with the legislative context and purpose, with context being regarded
at the first stage and in its widest sense: see for example SZTAL v Minister for
Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14], [35]-
[40] and [82]. The approach taken by the primary judge meant that his Honour
made no attempt to identify context or purpose. His Honour disregarded the
extrinsic materials, which are relatively rich and speak directly to why
“irrational” was chosen to qualify the “defence” for which s 5O made provision.
His Honour was not assisted by the parties, but they are certainly not to blame,
because at no stage were they given an opportunity to be heard as to the
proper construction of a section which had not at any time been invoked.
The text, context and purpose of “irrational” in s 5O(2)
84 “Irrational” is a strong word as a matter of ordinary English. It is unquestionably
pejorative in this context. One may disagree with the correctness of the
evidence of a witness without regarding it as irrational, a point noted by Basten
JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 at [89]. In hundreds
of trials each day in Australia, courts reject the evidence of witnesses for
reasons which fall short of considering their evidence to be irrational.
85 Further, the section must be read as a whole. Subsection 5O(2) is to be read
with subsections (3) and (4). It will be seen that s 5O proceeds on the basis
that there may be more than one widely held body of peer professional opinion,
each inconsistent with the other, but none of which is necessarily irrational.
Adherence to any of those bodies of peer professional opinion – so long as it is
widely accepted in Australia – would render a professional defendant not liable.
Perry J made the point in Piwonski v Knight (2002) 83 SASR 400; [2002] SASC
310 at [74] that it was impossible for a surgeon to adopt every procedure which
some but not all competent surgeons recommended, because some were
mutually inconsistent alternatives. That does not mean that any of the mutually
inconsistent views was irrational. To the contrary, it emphasises the strength of
a conclusion that peer professional opinion is irrational.
86 The test of irrationality imposed by s 5O(2) is quite distinct from the test of
admissibility. Indeed, peer professional opinion evidence does not fall to be
considered for the purposes of s 5O until it has been admitted.
87 The test posed by s 5O(2) is not a substitute for rejecting evidence admitted
without objection on the basis that it fails to comply with the exception to the
opinion rule now found in s 79 of the Evidence Act 1995 (NSW). Nor is it
applicable when an expert opinion is dependent upon making good particular
assumptions, which are not established on the evidence.
88 Nor is the test for irrationality under s 5O(2) satisfied when the basis for a
practice is unexplained, or, as the primary judge put it, “oracular”. Competent
professional practice to administer lime juice to treat and to ward off scurvy
amongst sailors preceded by many decades any understanding of the role of
vitamins in human health. The fact that the reasons given in the late 18th and
19th centuries for the practice were wrong, or non-existent, did not make the
practice irrational. (It was known to work.)
89 As is well known, s 5O reflected a recommendation of the panel whose report
of September 2002 is best known as the “Ipp Report”. All Australian States
have enacted provisions resembling s 5O, although with multifarious
differences in detail. The history was summarised by Giles JA in Dobler v
Halverson at [56]-[59] and need not be repeated here. The focus for present
purposes is on the qualification in s 5O(2). The third term of reference included
the following:
“In conducting this inquiry, the Panel must:
…
(d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission.”
90 The recommendation which emerged was:
“Recommendation 3
In the Proposed Act, the test for determining the standard of care in cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be:
(a) A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational.”
Plainly s 5O owes much to that recommendation.
91 The Ipp Report dealt with the qualification which became s 5O(2) in chapter
three as follows:
“3.17 As we have noted, however, under current law a court is never required to defer to medical opinion, although in the normal run of cases, it will. A serious problem with this approach is that it gives no guidance as to circumstances in which a court would be justified in not deferring to medical opinion.
3.18 This problem could be addressed by adding to the rule suggested in paragraph 3.15 the following proviso: ‘unless the court considers that the opinion was ‘irrational’. This proviso follows the law as laid down by the English House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. In the opinion of the Panel, this formula gives doctors as much protection as is desirable in the public interest, because the chance that an opinion which was widely held by a significant number of respected practitioners in the relevant field would be held irrational is very small indeed.
But, if the expert opinion in the defendant's favour were held to be irrational, it seems right (in the opinion of the Panel) that the defendant should not be allowed to rely on it. The Panel therefore recommends that this formula be adopted as the test of standard of care in relation to medical treatment administered by medical practitioners.
3.19 The proviso relating to ‘irrational treatment’ needs further elaboration. Under the recommended rule, it is for the court to decide whether treatment is irrational. It would be rare indeed to identify instances of treatment that is both irrational and in accordance with an opinion widely held by a significant number of respected practitioners in the field. Such a rare instance is the finding of the court in Hucks v Cole [1993] 4 Med LR 393, referred to in paragraph 3.8.
3.20 Although some might think that this proviso is unnecessary, the Panel is of the opinion that there may be very exceptional cases (for example, Hucks v Cole) where such a situation may arise. In those circumstances, the court should have the power to intervene. As was argued in paragraph 3.17, if the court considers that the expert opinion on which the defendant relied is ‘irrational’, it seems right that the defendant should not be allowed to rely on it.”
92 It is clear that by proposing an exception where the court considered that the
peer professional opinion was “irrational”, the Panel had in mind that the
exception would only rarely be available. The words used were “rare indeed”, a
chance which was “very small indeed”, a “rare instance” and “very exceptional
cases”.
93 In Bolitho v City and Hackney Health Authority [1998] AC 232, Lord Browne-
Wilkinson, with the agreement of the other Law Lords, had said that the body of
professional opinion must have a “logical basis” and could not be determinative
if “it is not shown to the Court’s satisfaction to be both reasonable and
responsible” or if it was shown that the opinion “is not capable of withstanding
logical analysis”: see at 242 and 243. The description used by Leveson LJ in
Ministry of Justice v Carter [2010] EWCA Civ 694 at [22] was “could not
withstand logical analysis”. As Dominic Villa has pointed out, this qualification
has antecedents in McNair J's original jury direction in Bolam:
“At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion”: D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Lawbook Co, 2018), p 248.
94 The Ipp Report gave by way of example Hucks v Cole [1993] 4 Med L R 393,
where a doctor failed to administer penicillin despite seeing septic spots on a
patient’s skin which he knew contained organisms capable of causing
puerperal fever. That practice was endorsed by a number of distinguished
doctors, but rejected by Sachs LJ at 397:
“[T]he fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.”
95 It is not entirely clear to me how Hucks v Cole was intended to illustrate the
mischief to which s 5O(2) was directed, save that Sachs LJ’s reference to “very
weighty matter” tends to confirm that the occasions for its use will be rare. In
any event, while the discussion in the Ipp Report and the English decisions to
which it refers assist in confirming the meaning to be given to “irrational” in s
5O(2), they should not be used as a substitute for or a gloss upon the statutory
text. The question in Australia is now the application of statute, namely, does
the court consider the peer professional opinion to be irrational?
96 Text, context and purpose all support the conclusion that it is a seriously
pejorative and exceptional thing to find that a professional person has
expressed an opinion that is “irrational”, and even more exceptional if the
opinion be widely held. To consider a body of opinion to be “irrational” is a
stronger conclusion than merely disagreeing with it, or preferring a competing
body of peer professional opinion.
97 The primary judge said at [407] that he preferred the evidence of Professor
Raftos over that of Professor Gatus “on grounds of rationality”. That is quite
different from finding that the latter’s evidence was irrational for the purpose of
s 5O(2). It appears to give no weight to the force of “irrational”. To the extent it
amounted merely to the preferring the views of one witness over another, it is
inconsistent with s 5O(3) and (4).
Section 5O(1) is made out
98 On the principal disputed issue of competent professional practice, namely the
administration of appropriate antibiotics, the primary judge summarised the
essence of the dispute between Professors Raftos and Gatos as one which
distinguished between the specific antibiotic needs of an individual with
epidemiological principles of antibiotic stewardship. It is plain that there may be
a divergence of professional opinion on a subject of that nature. Should
relatively scarce and expensive antibiotic drugs be administered frequently, to
the advantage of those patients, but to the possible disadvantage of future
patients who are infected with resistant organisms, or cautiously, and in the
light of evidence-based guidelines, so as to preserve the efficacy of existing
antibiotics for a longer term? Such choices, between the immediate interests of
the individual and the broader interests of the community, recur throughout the
field of medicine.
99 If the issue for the Court was merely to determine which of those two views
was preferable, then, as the respondent submitted, it would be one for the
acceptance by the primary judge of the evidence which seemed most
persuasive and cogent. But that is not the issue. I do not consider that either
opinion can be said to be “irrational”. The reasoning of the primary judge at
[643], which is reproduced above, regarded “the generalised consideration of
the desirability of adhering to evidence-based guidelines founded upon
principles of antibiotic stewardship”, which did not consider “the specific
antibiotic needs of the patient after taking into account the likely range of
infective organisms to which the patient has been exposed”, as irrational.
When the true force of “irrational” in s 5O(2) is borne in mind, that reasoning
cannot stand.
100 Ultimately, the dispute was refined. It was whether, as Professor Raftos
maintained, it was appropriate to consider the administration of gentamicin, or
else, as Professor Gatus maintained, in light of the Therapeutic Guidelines –
Antibiotic, it was not necessary even to do that.
101 That more refined dispute need not be resolved, even assuming it were
possible to do so. It is sufficient to conclude that the defendant had established
that there was a practice which was widely accepted in Australia by peer
professional opinion as competent. That practice was to administer the
antibiotics which were in fact administered, and no more, unless there were
significant exposure to water. Further, the evidence of Professor Gatus and Dr
Haertsch supported the conclusion that the practice stated in the Therapeutic
Guidelines – Antibiotic was widely held across Australia.
102 It is true that in many respects Dr Haertsch did not articulate the reasoning
process leading to the conclusions tersely expressed in his two page letter and
supplementary report. But it does not follow that those conclusions were
irrational; it merely follows that it would have been open to the plaintiff to object
to its tender. It was wrong for the primary judge to have rejected unobjected to
opinion evidence, applying the principles governing admissibility, in the guise of
applying s 5O(2).
103 Further, to the extent that Dr Haertsch’s opinion was based on the presence of
dry, as opposed to wet, gangrene, that opinion fell away if wet gangrene were
found (as the primary judge in fact found, albeit the finding is challenged on
appeal). But once again, that is not because of s 5O(2) irrationality. It is
because the assumption on which the opinion is based has not been made out.
It is trite law that for an expert medical opinion (or any other expert opinion) to
be of any value, the facts upon which it is based must be proved by admissible
evidence: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59
ALJR 844 at 846.
104 As noted above, an element of the competent professional practice turned on
“if there has been significant fresh or salt water exposure”. Significant exposure
to water was not indicated in the history provided on 22 August, namely,
slipping on a wet cement floor. It will be recalled that the notes at both
Campbelltown and Liverpool Hospitals recorded a “fall on wet cement floor”.
The primary judge reasoned that that history carried with it an exposure to
water such as to justify additional antibiotic prophylactic treatment. I have
already indicated the absence of evidentiary support for that aspect of the
reasons of the primary judge. His Honour’s conclusion cannot in my opinion be
reconciled with the evidence of Professor Gatus, given in cross-examination:
“Now, if he fell over on wet cement – and every day when it rains in Sydney people have motorbike accidents in the rain, they have car accidents in the rain, they end up with fractures. When they go to hospital, although it’s wet, [t]hey are not given extra prophylaxis above flucloxacillin or cephazolin because it’s wet. You don’t do that.”
105 The primary judge reproduced this evidence at [358], but does not appear to
have had regard to it when making a finding about the risk of exposure to
water-borne bacteria following contact with a wet cement floor. And there was
no cogent evidence to the contrary, for while Professor Raftos disagreed, his
evidence primarily proceeded on the basis that the injury occurred in dirty
water. It is true that at one stage Professor Raftos referred more generally to
exposure to the environment, as opposed to exposure to bacteria living on a
person’s skin, but this does not significantly detract from the force of Professor
Gatus’ opinion, especially when it is recalled that Professor Raftos retreated to
the position merely that it was necessary to consider administering gentamicin.
The evidence of Dr Scott
106 There was further evidence to support the conclusions of a widely accepted
practice which was not irrational, namely, the evidence of Dr Christopher Scott.
He was the surgeon who operated on the plaintiff’s hand on 23 August 2011.
He, together with Dr Geraghty, participated in a decision to administer
cephazolin intravenously commencing shortly before midnight on 22 August. Dr
Scott was asked why he had agreed to that prescription, and said “that’s
standard in my coverage for any traumatic wound in the hand, apart from,
essentially, dog bites”. He confirmed that that was the standard treatment as at
August 2011, and was then asked the following questions by the primary judge:
“HIS HONOUR: When you say standard treatment, do you mean at that hospital?
A: At every hospital I’ve worked at, apart from one in New Zealand. They had a different antibiotic that they were able to give.
Q: So do they follow the Westmead protocols?
A: No. They would follow the ‘Therapeutic Guidelines – Antibiotics’, which I assume Westmead would also cover, but different hospitals might have different guidelines.”
107 He was then asked to what hospitals did his experience relate, and confirmed
that his experience did not merely relate to Liverpool and Fairfield Hospitals,
but also to further hospitals:
“Throughout my training as a registrar. So, when I worked at Westmead we were giving Cephazolin. Royal Prince Alfred, Royal North Shore, St Vincent’s Hospital, Nepean Hospital.”
108 Dr Scott (like all the lay witnesses) had not served a witness statement and his
evidence in chief was led. Immediately before he was called, there was debate
between Mr Sergi and the primary judge as to the content of his evidence. Mr
Sergi confirmed that Dr Scott’s evidence was to be restricted to factual matters,
and the primary judge indicated that, to the extent he might be asked to give
opinion evidence, “the rules must be complied with”. That is to be read as a
reference to UCPR r 31.28, which renders inadmissible oral expert evidence
which has not been the subject of a report served 28 days previously (unless
leave is granted in exceptional circumstances). The primary judge confirmed
that “there’ll be no difficulty over his giving evidence over his treatment plan
and why he selected that plan”, and there was a debate about s 5O:
“HIS HONOUR: There’s one other aspect of Dr Scott’s opinion I need to be informed about. Will you be seeking to elicit from him evidence as to peer professional opinion in Australia?
SERGI: No.
HIS HONOUR: But for the s 5O defence?
SERGI: No.”
109 Dr Scott was also asked about whether he considered administering
gentamicin. He gave this evidence:
“Q: … You told us about the cephazolin, and that it was standard practice in this hospital and a number of other hospitals. Did you consider at all gentamicin?
A: Not for this particular wound. gentamicin we generally – when you talk about the organisms in the wound, gentamicin you would add when you might expect gram-negative organisms such as things contaminated with faecal matter, but certainly not in any standard open wound.”
110 Dr Scott was asked no questions in cross-examination about his evidence of
the practice of administering cephazolin. No limiting order under s 136 of the
Evidence Act 1995 (NSW) was made in relation to any of this evidence. The
primary judge paid no regard to it in assessing any of the issues under s 5O.
111 Mr Stone, who with Mr Masur appeared for the respondent on appeal, but not
at trial, contended that, in light of the express assurances that Dr Scott’s
evidence would not be tendered in relation to peer professional opinion or the s
5O defence it was unnecessary for the primary judge to deal with it. The
premise of the discussion between the primary judge and Mr Sergi about the
use to which Dr Scott’s evidence would be put was that any evidence as to
peer professional opinion in Australia would be opinion evidence. I do not
accept the premise. The question of what in fact is a standard practice of
professional peers throughout Australia is at least in part a question of fact: see
Sparks v Hobson at [345]. It may be that in some cases the distinction between
opinion and fact is difficult to draw. But Dr Scott’s evidence did not fall into this
category. He simply gave uncontradicted evidence of what the standard
antibiotic treatment was for wounds of this kind in the eight hospitals in which
he had worked. That evidence was entirely factual, and squarely relevant to (a)
the issue whether the practice was widespread in Australia, and (b) the point
which first emerged in the judgment, namely, whether the practice was
irrational.
112 The primary judge’s conclusions on irrationality, which paid no regard to the
evidence of Dr Scott, cannot stand for the reasons already given. In the
absence of a limiting order, it is open to have regard to Dr Scott’s evidence to
reinforce the conclusion that not administering gentamicin was a practice which
was widespread in Australia.
Four miscellaneous points
113 The Court was taken to the printed form from Campbelltown Hospital’s
emergency department. The form stated in bold capitals “NO VANCOMYCIN,
GENTAMICIN OR THROMBOLYTIC DRUGS”. The Court was told that no
reliance was placed on this form at the trial, and it may be that it reflected some
qualification not obvious on its face (perhaps it was confined to patients who
were children). I have therefore placed no reliance upon it in reaching the
conclusions expressed above. Nevertheless, it does not detract from the
testimonial evidence that there was a widespread practice that gentamicin was
not administered as a matter of course.
114 Different views have been expressed in this Court as to whether it is necessary
to identify a particular “practice” in order to engage s 5O. The distinction was
captured by Simpson JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA
29 at [335], as to whether the reference to “practice” is a reference to the
practice of the relevant profession, or more narrowly to a particular specific
practice or method of providing the services. The latter was favoured in
McKenna v Hunter & New England Local Health District [2013] NSWCA 476;
[2013] Aust Torts Rep 82-156, however, an appeal was allowed by the High
Court on the anterior question of duty: Hunter & New England Local Health
District v McKenna (2014) 253 CLR 270; [2014] HCA 44. In Sparks v Hobson;
Gray v Hobson, Basten JA and Simpson JA favoured the former, while
Macfarlan JA favoured the latter, with Basten and Simpson JJA expressing
different views as to the precedential weight to be given to this Court’s earlier
decision. That divisive issue may be put entirely to one side for the purposes of
this appeal. On any view, the practice of administering antibiotic prophylactic
following an open fracture which was confined to flucloxacillin and cephazolin
and did not extend to gentamicin – a practice which is set out in the fairly
mechanical decision-tree in the Therapeutic Guidelines – Antibiotic – is a
“practice” capable of engaging s 5O.
115 It may also be noted that the plaintiff’s case was not that gentamicin should
have been considered, but that it should have been administered. As refined in
the expert witness process, Professor Raftos’ opinion did not rise to what was
required to make out the plaintiff’s pleaded case. Thus, based on the history
given to the hospitals, the plaintiff failed to show that it was appropriate to
administer gentamicin.
116 I have not overlooked the fact that the plaintiff had adduced expert evidence
from Dr Mansour, a consultant paediatrician, and his reports were also
admitted without objection and in the absence of any cross-examination. But Dr
Mansour’s untested opinions may readily be put to one side. In his first report,
he said, referring to the antibiotics administered at Liverpool Hospital,
“Inadequate antibiotic cover bearing in mind he was playing in a canal drain”. In
his second report, he elaborated somewhat: “The antibiotic cover when
commenced at Liverpool Hospital was inadequate bearing in mind that he had
been playing [in] a canal drain which would require a much broader spectrum
of antibiotic cover than what he was given”. But those opinions were evidently
based on an assumption that the hospital was told he had been playing in a
canal drain, which was not the history which had been given to the hospital. Dr
Mansour did not express any other opinions relating to the antibiotics given to
the plaintiff at Liverpool. In short, nothing in Dr Mansour’s evidence stands in
the way of the conclusions reached above. But even if he expressed a different
view on accepted facts, that would not demonstrate that other views were
irrational.
The two-stage test applied by the primary judge
117 Ground 2(a) of the appeal was that the primary judge erred in failing to
determine the standard of care by reference to the evidence of what was
regarded by peer professional opinion as competent professional practice.
118 Instead, the primary judge expressly applied a two stage test. First, under the
heading “Issue 3 – Breach of duty of care”, his Honour applied ss 5B and 5C at
[489]-[579] finding a series of breaches, including at [543]-[555] a finding that
the “failure to provide the plaintiff with gentamicin for antibiotic prophylaxis
whilst in hospital constituted a breach of the duty of care” which continued until
the plaintiff was discharged. His Honour’s reasoning and conclusions as to
causation (at [580]-[607]) turn upon the breaches so found. Then, under the
heading “Issue 6 – Defence based on s 5O of the Civil Liability Act 2002”, his
Honour addressed s 5O (at [608]-[693]).
119 The appellant submitted that s 5O altered the standard of care against which
breach of duty was assessed. The respondent did not submit to the contrary.
That submission should be accepted.
120 The issue arose in Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA
335 as to whether, in a case where a defendant invoked s 5O, the plaintiff bore
the onus of proving that the professional services provided by the defendant
were not widely accepted in Australia by peer professional opinion as
competent professional practice, or whether the defendant bore the onus of
making out the converse. The parties appear to have framed that issue as
whether s 5O operated “as a defence”. That can be an ambiguous way of
formulating an issue: see White v Johnston (2015) 87 NSWLR 779; [2015]
NSWCA 18 at [103]-[105]. What matters is which party bears the evidentiary
and legal onus of establishing a particular element of a cause of action or a
defence. Further, the term “defence” may not capture the subtlety of a complex
provision such as s 5O, whose availability turns on establishing the
preconditions in s 5O(1), but which is also subject to disapplication by s 5O(2),
121 Giles JA, with whom Ipp and Basten JJA agreed, rejected the bald submission
that the plaintiff bore the onus of proof. His Honour traced the history of the
“Bolam principle”, its rejection by the High Court in Rogers v Whitaker (1992)
175 CLR 479; [1992] HCA 58 and its partial reinstatement in s 5O. His Honour
said that apart from s 5O, the Court would have regard to evidence as to
acceptable professional practice, but would not be obliged to accept that
evidence. In particular, his Honour said that a court “would not be obliged to
hold against the plaintiff if the defendant’s conduct accorded with professional
practice regarded as acceptable by some although not by others”: at [59]. Giles
JA then stated that, in contrast:
“Section 5O has the effect that, if the defendant’s conduct accorded with professional practice regarded as acceptable by some (more fully, if he “acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice”), then subject to rationality that professional practice sets the standard of care.” [Emphasis added.]
122 Returning to the imprecise way in which the issue of whether s 5O “operated
as a defence” had been framed, Giles JA said at [60]-[61]:
“In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant’s conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.
It follows that I do not accept the appellant’s submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.” [Emphasis added.]
123 Read in proper context, it may be seen that Dobler was a very precise
statement of the operation of s 5O. Only if the preconditions of the section –
namely, that the defendant was “practising a profession” and was doing so “in
a manner that ... was widely accepted in Australia by peer professional opinion
as competent professional practice” – are established does the section apply.
The defendant bears the onus of establishing those preconditions, and if they
are not established, then ss 5B and 5C are to be applied. However, if the
preconditions are established, then the standard of care against which the
defendant’s conduct is assessed is that which was widely accepted by peer
professional opinion as competent professional practice, unless the court
considers that opinion is irrational.
124 In a case (such as the present) where the defendant establishes the
preconditions to s 5O, then there is a single standard against which the
defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what
Giles JA said at [59]: “then subject to rationality that professional practice sets
the standard of care”. That is also what his Honour said at [61]: “Section 5O
may end up operating so as to determine the defendant’s standard of care”.
125 That is what Basten JA and Simpson JA separately suggested in Sparks v
Hobson; Gray v Hobson [2018] NSWCA 29. After reviewing the background to
s 5O, Basten JA concluded at [24]:
“It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case.”
126 To similar effect, Simpson JA said at [329]:
“[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.”
127 The force of those observations is readily demonstrated.
(1) First, it is to be recalled that s 5B (like many other provisions in Part 1A of the statute) is a gateway provision, expressed in terms of a necessary but not sufficient condition for a finding of “negligence” (ie, a failure to exercise reasonable care and skill). Section 5O, in contrast, in the circumstances in which it applies, means that the defendant “is not liable”. That tends to support a construction that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B.
(2) Secondly, there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. There is no reason to add to the complexity of trials, so as to require the evaluation of the professional’s conduct against not one but two separate standards.
(3) Thirdly, there is no good reason for the potential reputational damage which may be suffered by a finding of breach of the test at common law to be incurred when, if s 5O applies, statute has said that “the professional does not incur a liability in negligence”.
(4) Fourthly, that approach is wholly consistent with the terms of reference to which the Ipp Committee was subject. As noted above, those terms required that “in conducting this inquiry, the Panel must … (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission”. Section 5O reflected that term of reference, and I see no reason why it should not be construed accordingly, in accordance with s 34 of the Interpretation Act 1987 (NSW). Its heading is, after all, “Standard of care for professionals”.
128 It is true that on occasion there has been separate treatment of breach in
accordance first with ss 5B and 5C and then with s 5O (see for example Howe
v Fischer [2014] NSWCA 286 at [73]-[78] and Melchior v Sydney Adventist
Hospital Ltd [2008] NSWSC 1282 at [139]-[145], both cases where breach was
not found to have been established under s 5B). But the weight of authority
proceeds on the basis as stated in the Ipp Report, assimilating the standard of
care to that stated by s 5O once the preconditions of the section have been
satisfied. That is the gravamen of the empirical research presented by C Mah,
“A critical evaluation of the Professional Practice Defence in the Civil Liability
Acts” (2014) 37(2) University of Western Australia Law Review 74.
129 In the present case, the separate consideration under ss 5B and 5C, followed
by s 5O, appears to have led to error. The primary judge rejected as irrational
evidence which was contrary to the standard determined in accordance with
s 5B. But the effect of s 5O, in a case where its preconditions are made out, is
to replace the standard of care against which breach is assessed. There is no
occasion to compare the s 5O standard with that which would be considered in
the application of s 5B in a case when the preconditions of s 5O have been
made out.
Conclusions on s 5O
130 For the foregoing reasons, the opinions of Professor Gatus and Dr Haertsch
that gentamicin need not, or even should not, have been administered
accorded with competent professional practice which was, in 2011, widely
accepted in Australia by peer professional opinion, and which was not
irrational. The administration of antibiotics to the respondent conformed with
that practice. It follows that s 5O applied and there was no liability in
negligence. On that basis, the appeal should be allowed.
Balance of the appeal: causation
131 In its other grounds of appeal, the local health district raised a series of
challenges to the factual findings made by the primary judge. In light of the
foregoing, these challenges have no impact upon the outcome of the appeal. It
will be seen that most are capable of being resolved concisely, although some
are more problematic.
Was the plaintiff exposed to contaminated water?
132 The local health district submitted that the evidence did not permit the primary
judge’s finding that the respondent was exposed to contaminated water. The
primary judge found that the history of slipping on a wet cement floor was
incorrect and said at [109] that the unchallenged mechanism of the injury was
as follows:
“On 22nd August 2011, when he was 8 years of age he was playing with his friends in a canal drain. He was throwing huge boulders into the water when he slipped on the slime on the rocks and fell backwards. The boulder he had been holding in his hand came down and crushed his left thumb.”
133 That description leaves unresolved the quality of water in the drain. It also
leaves unresolved whether the plaintiff’s hand came into contact with the water,
or with a wet surface on the drain, or with a surface which had been splashed
by boulders previously thrown into the drain, or with the slime on the rocks, or
else failed to come into contact with any wet surface at all.
134 The local health district pointed to the somewhat different finding at [599]:
“I therefore conclude that at the time of his injury, the plaintiff’s left thumb most probably became infected by environmental exposure to the Aeromonas hydrophila organism, probably in affected water on the concrete or the cement surface with which the plaintiff’s thumb had made contact at the time of injury. I infer that surface was not clean by reason of the fact that it had become wet from water that was most probably not clean by the time such injurious contact occurred.”
135 The appellant supplied a statement in purported compliance with r 51.36(2),
identifying this finding as one which it challenged. However, it failed to identify
all of the evidentiary references bearing on this issue (it pointed to two
paragraphs in its written submissions, but those paragraphs merely referred to
the passages from the judgment at first instance referred to above). There was
a deal of evidence bearing upon what had in fact occurred than is summarised
above, but on the approach taken by the appellant, it is not necessary to
summarise it, and an attempt to do so might well be incomplete. It is not for this
Court, in order to resolve a factual challenge advanced by an appellant, to trawl
through the entirety of the record in order to collect and then evaluate the
relevant evidence. It is open to conclude that the stormwater canal which was
wet and had slime growing on it would, more likely than not, have been
“contaminated” in the presently relevant sense, which is simply to say that it
contained the bacteria ultimately found to have been present on the plaintiff’s
thumb. I do not consider the differences between [109] and [599] disclose
appellable error; the latter is consistent with the former. Based on the limited
submissions advanced on appeal, I would not conclude that the finding of the
primary judge is one which should be disturbed on appeal.
Was there osteomyelitis?
136 The local health district challenged the finding of osteomyelitis. There was
evidence that the only way of definitively testing for osteomyelitis was
microscopic examination of the bone. That did not occur. However, there was
also contemporaneous evidence from a record made by Dr Scott, immediately
after the amputation, of “probable osteomyelitis”, in connection with advice that
the plaintiff would need further antibiotics. Osteomyelitis was not seen on x-
rays at the time, but Dr Sathasivam said, uncontroversially, that “osteomyelitis
only appears on X-ray [when] well advanced”. That was more than sufficient to
ground a finding of osteomyelitis.
Would administration of gentamicin have made a difference?
137 The local health district submitted that if the thumb had been crushed, such
that there was no blood supply, then no administration of any intravenous
antibiotic would be effective, because it would not be conveyed to the site of
the injury. It was said that the plaintiff bore the onus of proving, on the balance
of probabilities, every fact relevant to the issue of causation and had not
adduced evidence to say that the crush injury, although serious, would still
have left his capillaries sufficiently intact to transport the drug to the plaintiff’s
thumb.
138 I would reject this submission. It is inconsistent with the contemporaneous
notes, and inconsistent with competent practice. The plaintiff’s injury was
assessed, in difficult circumstances, when two “category 2” patients were
occupying the operation theatres. A decision was made for him to be operated
on the following morning. That decision was made after Dr Scott tested the
thumb for blood supply and made a note to the effect that “capillary return
present in digit”. I would not set aside the judge’s finding that there was blood
supply to the thumb in the evening of 22 August 2011.
Wet or dry gangrene?
139 The causal mechanism found by the judge was that the failure to administer
gentamicin more likely than not led to infection of the bone and consequent
gangrene in the left thumb leading to its amputation. The parties treated
aspects of the challenge to causation as binary: was there “wet gangrene” or
“dry gangrene”? The local health district submitted that the plaintiff’s thumb
was lost because it was necrotic as a result of irreparable damage to the
vascular system, rather than an infection. It is not clear to me that these issues
are as clearcut as the parties regarded them, but I proceed on the basis
adopted by the parties and the primary judge.
140 A symptom of a gangrenous digit is that it appears black. There is no doubt
that the plaintiff’s thumb appeared black some days after the surgery. There
was conflicting contemporaneous evidence as to whether the death of tissue at
the tip of the thumb was caused by infection or lack of blood. There was one
contemporaneous note which went directly to the issue. On 6 September 2011
Dr Sathasivam inspected the thumb and recorded:
“Post crush injury l thumb
Necrotic dorsal distal aspect of thumb
Dry gangrene
P will discuss [Dr Scott]
→ repeat x-ray”
141 Dr Sathasivam was called in the defendant’s case and gave evidence that by
recording “dry gangrene” he was recording that there was no evidence of any
wet gangrene, which he identified by certain signs. He had no independent
recollection of attendance upon the plaintiff and was merely interpreting his
notes from that occasion. He stated that his “P” indicated a plan to discuss with
Dr Scott, following which discussion both agreed on a plan to repeat an x-ray. It
was not put to Dr Sathasivam that his record of “dry gangrene” could have
been erroneous.
142 The primary judge was conscious that the factual correctness or otherwise of
Dr Sathasivam’s note was not challenged by cross-examination: at [15].
Nevertheless, his Honour rejected it at [569] as not being reliable. His Honour
favoured various competing pieces of evidence, including other
contemporaneous records of symptoms consistent with wet gangrene.
143 Mr Stone submitted that the failure to confront Dr Sathasivam with the
evidence supporting a diagnosis of wet gangrene did “not matter very much”,
because the doctor had made it plain that he had no distinct recollection of
what had occurred some five years earlier when he had examined the plaintiff’s
thumb.
144 Mr Stone’s response is not without force. The present case is much removed
from the cases where an “extremely serious allegation” is made, as was
indicated by this Court in Bale v Mills (2011) 81 NSWLR 498 at [66], or where it
is to be put that the witness is deliberately withholding the truth: Kuhl v Zurich
Financial Services Australia Ltd (2011) 243 CLR; [2011] HCA 11 at [67]. Even
so, it would have been desirable for Dr Sathasivam to have been directed to
the contemporaneous notes of observations of others, and asked whether he
could reconcile that with the conclusion of “dry gangrene” noted by him. That
would have provided some direct evidence as to the reliability of his note.
145 The larger difficulty here is that it may be inferred that this did not occur
because the plaintiff’s case was one based on dry gangrene. The plaintiff’s
closing submissions drew attention to Dr Mansour’s evidence that by 6
September “dry gangrene had set in”. On two occasions thereafter, the Court
raised a question as to wet gangrene. Apparently in response to an email
dated 31 October 2016 (the parties were asked, but were unable to provide a
copy to this Court) the defendant maintained that it was not open not to accept
as factually accurate Dr Sathasivam’s note (paragraph 14 of the defendant’s
“Third Supplementary Submissions”). Then, apparently in response to a
further email dated 16 November 2016 (once again, the parties were unable to
provide a copy of this email), the defendant’s “Fourth Supplementary
Submissions” reiterated the position. The plaintiff did not respond to either
email, at least so far as the submissions provided to this Court disclose. The
point was made by the appellant in its written submissions and oral
submissions in chief, to which no response was given. No explanation given for
the failure by counsel then appearing for the plaintiff to respond.
146 Thus the plaintiff appears to have run his case in a particular way. That may
have been a forensic decision based upon the other ways in which a breach of
duty was asserted (including the failure to arrange for surgery on the evening
of 22 August). There are limitations on the extent to which a primary judge can
make findings inconsistent with the plaintiff’s choice. I am inclined to conclude
that this is a case where such a course was not open, and that the primary
judge was wrong to proceed as his Honour did.
147 I am conscious of the desirability of dealing with all grounds of appeal,
including those which are non-dispositive: Kuru v State of New South Wales
(2008) 236 CLR 1; [2008] HCA 26 at [12]; Australian Securities and
Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and
Managers Appointed) (2011) 244 CLR 1; [2011] HCA 18 at [56]. However, I am
reluctant to express a concluded view on a non-dispositive issue on the
challenge to this finding, in circumstances where the appellant has failed to
provide the emails which emanated from the chambers of the primary judge to
which these submissions were made, and the Court does not have the benefit
of any explanation from counsel formerly retained to appear for the plaintiff at
trial as to why (so far as appears from the material available to this Court on
appeal) no response was made to at least three requests for submissions by
the primary judge. It does not seem to me to be appropriate to express a
concluded view which turns on an inference as to a deliberate forensic decision
in the absence of hearing from the counsel involved.
Orders
148 For those reasons, the appeal must be allowed, the judgment in favour of the
respondent set aside, and instead the proceedings must be dismissed.
149 Section 77 of the Civil Procedure Act 2005 (NSW) required any money paid
pursuant to the judgment to be paid into court or to the NSW Trustee and
Guardian. Order 5 made on 30 May 2017 reflected that obligation. It is not
clear from the materials whether any money has in fact been paid, or whether
there has been a stay of execution. But whether or not that is so, it seems
unlikely that orders need to be made for restitution. In any event, no such
orders were sought in the notice of appeal.
150 There seems to be no reason to displace the ordinary rule in UCPR r 42.1 that
costs follow the event at first instance and on appeal. However, the respondent
should have a certificate under the Suitors’ Fund Act 1951 (NSW). The orders
made at first instance suggest that one or more offers of compromise or
Calderbank offers were made, the details of which this Court is unaware. If
there be a basis for altering the orders as to costs, that may be made by notice
of motion filed within 14 days’ of judgment, in accordance with UCPR r 36.16.
151 I propose these orders:
1. Appeal allowed.
2. Set aside the judgment and orders 1, 2 and 5 made on 30 March 2017,
and in lieu thereof, order that the proceedings be dismissed.
3. The respondent to pay the appellant’s costs at first instance and on
appeal, but to have a certificate under the Suitors’ Fund Act 1951 (NSW).
**********
ANNEXURE “A”“COMPOUND (OPEN) FRACTURES
Management of compound (open) fractures requires urgent orthopaedic consultation. Irrigation is a key component in preventing infection after an open fracture, as it serves to decrease bacterial load and remove foreign bodies. There is insufficient evidence to support the use of local antibiotic therapies such as beads.
The patient with a compound fracture should have their immune status to tetanus assessed (see Table 19, p.294). Prophylaxis or early treatment directed particularly against Staphylococcus aureus should be given:
di/flucloxacillin 2 g (child: 50 mg/kg up to 2 g) IV, 6-hourly.
For patients hypersensitive to penicillin (excluding immediate hypersensitivity, see Table 2, p.40), use:
cephazolin 2 g (child: 50 mg/kg up to 2 g) IV, 8-hourly.
For patients with immediate penicillin hypersensitivity (see Table 2, p.40), use:
Clindamycin 450 mg (child: 50 mg/kg up to 450mg) IV or orally, 8-hourly
OR
Lincomycin 600 mg (child: 15mg/kg up to 600 mg) IV, 8-hourly.
Prophylaxis should be continued for up to 72 hours following injury, and discontinued 24 hours after wound closure. If presentation is delayed (8 hours or more), presumptive early treatment should be given for 5 to 7 days, but continued for longer if bone infection is established (see Table 3, p.44).
If wound soiling or tissue damage is severe and/or devitalised tissue is present, use:
piperacillin+tazobactam 4+0.5 g (child: 100+12.5 mg/kg up to 4+0.5g) IV, 8-hourly
OR
ticarcillin+clavidanate 3+0.1 g (child: 50+1.7 mg/kg up to 3+0.1 g) IV, 6-hourly
FOLLOWED BY
amoxycillin+clavulanate 875+125 mg (child: 22.5+3.2 mg/kg up to 875+125 mg) orally, 12-hourly.
For patients with penicillin hypersensitivity (excluding immediate hypersensitivity, see Table 2, p.40), use:
cephazolin 2 g (child: 50 mg/kg up to 2 g) IV, 8-hourly
PLUS
metronidazole 500 mg (child: 12.5 mg/kg up to 500 mg) IV, 12-hourly
FOLLOWED BY
cephalexin 500 mg (child: 12.5 mg/kg up to 500 mg) orally,
PLUS
Metronidazole 400 mg (child: 10mg/kg up to 400 mg) orally, 12-hourly.”
For patients with immediate penicillin hypersensitivity (see Table 2, p.40), or if there has been significant fresh or salt water exposure, use:
Ciprofloxacin 400 mg (child: 10 mg/kg up to 400 mg) IV, 12-hourly or ciprofloxacin 750 mg (child: 20 mg/kg up to 750 mg) orally, 12-hourly
PLUS EITHER
Clindamycin 450 mg (child: 10 mg/kg up to 450 mg) IV or orally, 8-hourly
OR
Lincomycin 600 mg (child: 15 mg/kg up to 600 mg) IV, 8-hourly then clindamycin 450 mg (Child: 10 mg/kg up to 450 mg) orally, 8-hourly.
Duration of treatment should be for 5 to 7 days, or longer if bone infection is
established (see Table 3, p.44).”
Amendments
16 April 2018 - [77] - change "reliance of dictionaries" to "reliance on
dictionaries"
[82] - correct misspelling of "etymologies"
[84] - change "evidence of witness" to "evidence of a witness"
[137] - change "adduced adduce evidence" to "adduce evidence"
[137] - change "in sufficient tact" to "sufficiently intact"
[144] - change "to be have been" to "to have been"
26 April 2018 - [145] - fourth line - "not open to accept" corrected to "not open
not to accept";
[145] - seventh line - quotation marks added after the words "Third
Supplementary Submission"
26 April 2018 - [145] - fourth line - "not open to accept" corrected to "not open
not to accept".
[145] - sixth line - quotation marks added after the words "Third
Supplementary Submission"
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.