Alicia Francisca Varela as the Executrix of the Estate of Carlos Arturo Varela v Sons of Gwalia (Murchison) Nl (Administrator Appointed) - [2002] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALICIA FRANCISCA VARELA as the Executrix of the Estate of CARLOS ARTURO VARELA -v- SONS OF GWALIA (MURCHISON) NL (Administrator Appointed) [2002] WADC 116

CORAM: COMMISSIONER GREAVES

HEARD: 8-10 APRIL 2002

DELIVERED : 18 JUNE 2002

FILE NO/S: CIV 424 of 2000

BETWEEN: ALICIA FRANCISCA VARELA as the Executrix of the Estate of CARLOS ARTURO VARELA
Plaintiff
AND
SONS OF GWALIA (MURCHISON) NL (Administrator Appointed)
Defendant

Catchwords:

Negligence - Fatal accident - Failure of first aid officer at mine site to recognise and provide accurate information by telephone about patient's complaints of cardiac-related condition to medical practitioners - Whether death of patient from that condition would not have occurred but for such failure - Liability established - Quantum agreed

Legislation:

Fatal Accidents Act 1959

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr A J Power

Solicitors:

Plaintiff: Leonard Cohen & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191

Case(s) also cited:

Nil

COMMISSIONER GREAVES: In March 1997, Carlos Arturo Varela, deceased ("Mr Varela") was employed by Gold Mines of Australia Ltd, subsequently acquired by the defendant, as a mechanic at the Reedy Gold Mine. Mr Varela died at the mine on 1 April 1997. The plaintiff is the widow and executrix of the estate of Mr Varela and brings this action on her own behalf under the Fatal Accidents Act 1959 as the sole dependant of Mr Varela. Exhibit 2 reveals that the forensic pathologist, Dr K A Margolius, at the direction of the Carnarvon Coroner, made a post mortem examination on the body of Mr Varela on 2 April 1997. At the conclusion of that examination, the pathologist formed the opinion that the cause of Mr Varela's death was "coronary ateriosclerosis and chronic obstructive airways disease".
By par 4 of the statement of claim, the plaintiff alleges Mr Varela died at the mine of a myocardial infarction on 1 April 1997. The defendant denies this allegation and alleges the cause of death was coronary arteriosclerosis and chronic obstructive airways disease.
The case for the plaintiff is pleaded as follows in par 5 of the statement of claim:
"The death of the deceased would not have occurred but for the negligence of Michael John Ryan ('Ryan'), the defendant's Occupational Health & Safety Coordinator at the project, in that:
(a)Ryan failed to conclude that the deceased was suffering from pre‑infarction symptoms on 29 March, 30 March or 1 April 1997.
Particulars
(i)Ryan ought to have concluded that the deceased was suffering from pre‑infarction angina or cardiac arrhythmia when he presented to Ryan on 29 March 1997 complaining of pain in the chin/jaw radiating to the chest, pain in both arms and lethargy and exhibiting agitation, raised blood pressure and pulse variability.
(ii)Further or alternatively to particular (i), Ryan ought to have concluded that the deceased might have been suffering from pre‑infarction angina when he presented to Ryan on 1 April 1997 complaining of continued chin/jaw pain, continuing pain in both arms and deep, sharp chest pain and exhibiting raised blood pressure.
(b)Further or alternatively to subparagraph (a), Ryan failed to supply pertinent information to Dr Colin Lee ('Lee') on 29 March and Dr Charles Thelander ('Thelander') on 30 March 1997 for the purpose of obtaining advice in connection with the deceased's symptoms and thereby failed to obtain accurate diagnosis (that the deceased was suffering pre‑infarction symptoms) or advice (as to the actions discussed in subparagraph (c), below).
Particulars
(iii)Ryan failed to inform Lee that the deceased exhibited pulse variability.
(iv)Ryan failed to inform Lee that the deceased had been complaining of chin/jaw pain.
(v)Ryan failed to inform Lee that the deceased was overweight and had recently been a heavy smoker.
(vi)Ryan failed to inform Lee that the deceased's chest pain had remained constant between the two telephone consultations (at approximately 2:00 and 2:25 pm).
(vii)Ryan failed to inform Lee that the deceased had complained of lethargy, generalised ache and nausea on 24 March 1997.
(viii)Ryan failed to inform Lee of his suspicion that the deceased's symptoms were cardiac‑related.
(ix)Ryan failed to inform Thelander of the quality of neck/jaw pain complained of by the deceased (ie. like being strangled).
(x)Ryan failed to inform Thelander that the deceased's neck and/or jaw pain had been radiating to his chest.
(xi)Ryan failed to inform Thelander that the deceased had presented to him on 29 March 1997 complaining of a burning sensation in the chest or that such pain had persisted.
(xii)Ryan failed to inform Thelander that the deceased had exhibited pulse variability on 29 March 1997.
(xiii)Ryan failed to inform Thelander that the deceased had presented on 29 March 1997 complaining of pain in both arms.
(xiv)Ryan failed to inform Thelander of his suspicion that the deceased's symptoms were cardiac‑related.
(c)Further or alternatively to subparagraphs (a) and (b), Ryan failed to administer any appropriate treatment to the deceased on 29 March, 30 March or 1 April or to evacuate the accused to a hospital.
Particulars
(xv)Ryan ought to have administered aspirin to the deceased 29 March, 30 March and/or 1 April 1997.
(xvi)Ryan ought to have administered oxygen to the deceased on 1 April 1997.
(xvii)Ryan ought to have closely monitored the condition of the deceased on 1 April 1997 and should not have permitted him to be alone.
(xviii)Ryan ought to have evacuated the deceased to a hospital on 29 March, 30 March or 1 April 1997.
(d)Further or alternatively to subparagraphs (a) – (c), Ryan failed to seek medical advice and/or permission to administer either of nitroglycerine or morphine from a hospital other than Meekatharra District Hospital when, on 1 April 1997, he was unable to speak to a doctor."
The defendant denies par 5 of the statement of claim and in the alternative pleads that negligence was not the cause of the death of Mr Varela. The defendant alleges Mr Varela died as a consequence of the natural progression of a pre‑existing condition, being coronary arteriosclerosis and chronic obstructive airways disease and would have died regardless of any negligence of the defendant or its employees. The defendant further alleges that the defendant and its servants and agents performed their functions with reasonable care and an appropriate level of skill.
The plaintiff's case, therefore, is pleaded in the alternative and the court must determine whether the defendant by its employee, Mr Ryan, was negligent in failing to conclude that Mr Varela was suffering from pre‑infarction symptoms on 29 March, 30 March or 1 April 1997, by failing to supply pertinent information to Dr Lee on 29 March 1997 and Dr Thelander on 30 March 1997 and thereby failing to obtain an accurate diagnosis that Mr Varela was suffering from pre‑infarction symptoms, or by failing to administer appropriate treatment to Mr Varela on 29 March, 30 March or 1 April 1997 or to evacuate him to a hospital.
In his written outline, counsel for the plaintiff submitted the defendant had a system whereby Mr Ryan was interposed between Mr Varela and the Royal Flying Doctor Service. He expanded that submission when he said: (T9)
"In this case the system that the defendant had in place was to have what was effectively a first aid officer to interface between those attending I suppose what we can call the sick bay and the Royal Flying Doctor Service and the communications with them, so having a system like that, it was incumbent on them to ensure that the information was correctly supplied."
He referred to the judgment of Lord Hoffman in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 214, where his Lordship distinguished between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. In this case, counsel submitted the defendant was under a duty to provide information to Dr Lee and to Dr Thelander, and to take reasonable care to ensure the information was correct. He submitted the defendant is liable for all the foreseeable consequences of the information being wrong.
I turn first, therefore, to consider whether the information of Mr Varela provided to Mr Ryan was correctly conveyed to Dr Lee and to Dr Thelander. The following three questions of fact arise on the evidence:
(a)What did Mr Varela tell Mr Ryan?
(b)What did Mr Ryan tell Drs Lee and Thelander?
(c)Did Mr Varela speak to De Lee on 29 March 1997 and to Dr Thelander on 30 March 1997?

What did Mr Varela tell Mr Ryan?

The evidence in relation to this question is contained in the defendant's answers to interrogatories in Exhibit 3 and in the evidence for the defendant of Michael John Ryan, which begins at p 82 of the transcript. Mr Ryan gave evidence he was employed by the defendant between April 1994 and February 1998 as its occupational health and safety coordinator. Among his other duties, Mr Ryan said he was responsible for the First Aid Room and the Royal Flying Doctor Service ("RFDS") medical chest. He said he spent five per cent of his time attending to his first aid duties. Speaking of his experience, he said he first became a volunteer ambulance officer with a Senior First Aid Certificate in about 1982. He completed levels 1 and 2 of the volunteer ambulance officer training courses. He qualified as a first aid instructor and carried out "quite a few" one day refresher and three day full first aid courses over the years. He said as a volunteer ambulance officer he received training in relation to cardiac conditions and the recognition of cardiac‑related conditions. He said he learnt of three basic signs or symptoms of cardiac‑related conditions, namely "pain radiating to the arms; chest pains; breathlessness; shock". (T86) He estimated this part of his training course occupied some 15 minutes.
Mr Ryan said in March 1997 he had a general idea "of signs and symptoms indicative of cardiac‑related conditions". To those already mentioned, he added he thought "the patient … quite often is quite frightened and in distress …". (T87) He said his understanding of chest pain had always been it was "a vice‑like pain." (T88) He said he understood the type of arm pain associated with cardiac‑related conditions was "just radiated pains". (T88) He said he did not know jaw pain was indicative of cardiac‑related conditions in 1997.
The evidence of Mr Ryan was he developed a "Patient Information for RFDS Calls" form while in the employment of the defendant. He said he used this form to "make notes on BP's, pulse rates, temperatures … so that I could make accurate notes on my findings when I was checking a person before actually talking – contacting the doctor so that I had the information at hand when I spoke to them." (T88 ‑ 89) He said he also recorded "basically what the patient told us." (T90) He said he tried to document what the patient actually told him, "because basically that's the information that I felt the doctor would need to be told." (T90)
The first such "Patient Information for RFDS Calls" form in this case came into existence on 24 March 1997 and became Exhibit 6. Mr Ryan said he had no clear recollection of what occurred on that day. He identified Exhibit 6. He said he made notes on the form having talked to Mr Varela. Mr Ryan said he next spoke to Mr Varela in the First Aid Room on 28 March 1997 when he presented with "a minor problem with one of his eyes". He said he saw Mr Varela again in the First Aid Room on 29 March 1997 when he completed a "Patient Information for RFDS Calls form". He said he had no independent recollection of that day without referring to the form, which became Exhibit 8. He said the document contains notes which he made on 29 March 1997 in relation to a visit by Mr Varela to the First Aid Room. He said he also made notes on Exhibit 8 on Sunday, 30 March 1997 at the foot of Exhibit 8. He said he was not sure when he made the notes in the top left hand corner of Exhibit 8 which he said was information from 24 March 1997. He also said he was not sure where he obtained the information "shooting type pain in both arms, did not last long". At p 99 of the transcript, Mr Ryan explained the observations recorded on Exhibit 8 on 29 March 1997. The observations were made between 1328 and 1425 hours. He explained the notation "every fourth or fifth weaker" when he said: (T100)
"It was an irregularity that I thought that I'd detected in that it seemed to be every fourth or fifth beat didn't seem as strong as the other ones."
Mr Ryan referred to the lower part of Exhibit 8 under the sub‑heading "Main problems" and his notation after the question "What does the patient complain of" which reads:
"Pain in neck area (as if someone trying to strangle) moving down to chest; burning sensation plus pain. Chest still uncomfortable but improving."
Mr Ryan said he obtained this information from Mr Varela on 29 March 1997. He could not explain the meaning of the information "lying 5 – 10 minutes".
The following evidence of Mr Ryan at p 105 of the transcript describes the manner in which Mr Varela presented to Mr Ryan on 29 March 1997 and expands upon the notes which are contained in Exhibit 8, so it is material to set that evidence out in detail:
"When you saw Mr Varela on 29 March 1997, how did he come across to you?‑‑‑A little bit emotional.
What do you mean by that?‑‑‑He didn't seem to take being unwell very well.
Had you seen him like that before?‑‑‑The previous week when he came in with the viral infection.
What date was that?‑‑‑Sorry?
What date was that?‑‑‑That was 24th March.
When you were speaking with Mr Varela on 29 March did you ask him questions to find out what was wrong with him?‑‑‑Yes, I did.
Was he forthcoming in his answers?‑‑‑I had to probe and question him again and again to get what I thought were clear indications from him.
You said that between about 1.25 and about 2.30 Mr Varela was with you. What were you doing with Mr Varela during that time?‑‑‑Writing up notes, doing vital sign checks. We even discussed, because of the run of medical problems that he seemed to be having, organising for him to have a medical check next time he went to Perth.
All right. Now I want to take you to Exhibit 8. I want to have you just concentrate at this stage on the notes that you made on 29 March. By reference to those notes can you tell his Honour what, as best as you can recall, Mr Varela told you, what readings or observations you took or made and what happened?‑‑‑Mr Varela basically complained of pain in his neck area and with a little bit of drawing out described it as someone was trying to strangle him, moving down to the chest a burning sensation and pain.
Did he tell you where the burning sensation and pain was?‑‑‑In the centre of the chest."
Mr Ryan then gave evidence that he called in to see Mr Varela in the evening of 29 March 1997. The defendant's answers to interrogatories became Exhibit 3. The defendant recites the fact that Mr Ryan gave a statement to the police following the death of Mr Varela in which Mr Ryan stated he made a contact call on Mr Varela at approximately 6.00 pm on 29 March 1997. By its answer to interrogatory 21, the defendant also acknowledges that Mr Ryan told the police that during this contact call Mr Varela said words to the effect he was still having pains under the chin and jaw area and the muscles in this area were contracting. Before me, Mr Ryan stated, as far as he could remember, Mr Varela said he felt a little bit better. His evidence was Mr Varela came to see him again in the early morning of Sunday, 30 March 1997. He said as far as he could recall he thought Mr Varela came to see him in the First Aid Room two or three times that day. He said the first visit was between 8 and 9 o'clock. He said he rang the Meekatharra District Hospital during that first visit. He said he wished to speak to a doctor. A doctor was not available. He called back at 9.30 am but a doctor was still not available. He said he wanted to speak to a doctor "Because I wasn't happy with Carlos's condition at that stage … . He was indicating that his jaw was aching. I can't remember, just basically that he didn't feel he was getting any better at that stage." (T111)
On Monday, 31 March 1997, the evidence of Mr Ryan was that Mr Varela came to see him before he started work in the morning and Mr Ryan had a meal with him in the evening. He said as far as he could recall, Mr Varela was feeling a little bit better, but still not too well. On Tuesday, 1 April 1997, the evidence of Mr Ryan was Mr Varela came to see him in the First Aid Room. He said he was able to remember Mr Varela was more distressed than he had been the day before. He referred to Exhibit 9 which reads:
"Carlos          1/4/97  0635
Unable to sleep
Pain in jaw
Pain in chest – very deep, sharp
BP160/100 — P 68  T 36.5               0635
BP 160/100 — P 64  0645"
Having referred to these notes, Mr Ryan said: (T115)
"He was complaining of pain in the jaw. He'd had a very restless night. He'd had trouble sleeping and he was complaining about the pain in the chest which was, at that stage, deep and sharp."
Mr Ryan said as a result he "basically wanted to get him to the hospital as soon as I could". He rang the Meekatharra Hospital. A doctor was not available. An appointment was made for 11.15 or 11.45. He said he considered taking Mr Varela to the hospital before the appointment because it was his intention to get away from the camp as quickly as he could and because "he wasn't getting any better with the treatments that he'd been given over the previous few days".
In cross‑examination, Mr Ryan identified Exhibit 10 as a record of his training and his work as an instructor. He accepted that as part of his training as a volunteer ambulance officer he was required to be able to assess a scene of injury or illness and gather a clear and concise history in respect of a patient's injuries or illnesses. He accepted he was required to be able to determine a number of conditions including shock, myocardial infarction, cardiac arrest, and angina. He agreed that apprehension was one of the signs of such condition and likewise a severe crushing pain under the breast bone which radiated to the arms.
Mr Ryan agreed when Mr Varela came to see him on 29 March 1997, Mr Varela was in "an agitated condition". He agreed that condition is not noted on Exhibit 8. He said from what Mr Varela told him on 29 March 1997, he wasn't sure what was wrong with Mr Varela. Mr Ryan agreed that on 1 April 1997 he made a statement to the Police as follows:
"I also explained that Varela was complaining of pain in the chin and jaw area. He described the pain as someone trying to strangle him." (T130)
Mr Ryan accepted that this information is not recorded in Exhibit 8. In relation to the notation "Every fourth or fifth beat weaker", Mr Ryan said he made this note because "It was just what I could hear through the stethoscope when I was taking – checking the blood pressure. (T135)
Mr Ryan acknowledged that without Exhibit 8 he remembered "very little" about Saturday, 29 March 1997. He said he was not sure how the pain in Mr Varela's jaw on Sunday, 30 March 1997 compared with the pain at 6.00 pm the previous evening. He said he did not create a new "Patient Information for RFDS Calls" form on 30 March 1997 because he regarded what occurred that day as a continuation of what had occurred on Saturday, 29 March 1997. He said that on 1 April 1997, he regarded the pain which Mr Varela was experiencing as a continuation of his pain on 29 and 30 March 1997. He accepted the fact that Mr Varela was unable to sleep and was experiencing pain in the jaw and chest which was deep and sharp suggested his condition had deteriorated. Counsel for the plaintiff asked him (T163):
"A description of pain in the chest very deep and sharp. What did that suggest to you, Mr Ryan?---By that stage I wasn't too sure about what the problems were."

He accepted that Exhibit 9 reflects that Mr Varela's blood pressure was elevated at 6.45 am on 1 April 1997.
In order to make findings of fact and determine what Mr Varela told Mr Ryan, it will be necessary to assess the credibility of Mr Ryan on all the evidence and I shall, therefore, return to make those findings of fact upon all the evidence.

What did Mr Ryan tell Drs Lee and Thelander?

Dr Colin Lee began employment with the RFDS on 4 February 1997, approximately six weeks before the events the subject of this action. He gave evidence he was at the operation centre of the RFDS at Jandakot on 29 March 1997. He referred to Exhibit 4. He said he had no recollection of the events of 29 March 1997. He said Exhibit 4 is a copy of the original Remote Consultation Report and gives details of the call made on 29 March 1997 at 2 o'clock in the afternoon. He identified his signature and continued at p 20 of the transcript as follows:
"The call was Mike Ryan from Reedy mine site, as I say on 29 March 1997, at 2 o'clock in the afternoon, details relating to Carlos Varela, date of birth 24 November 1945. The history and assessment part states there's a half an hour of neck pain which spread to the chest retrosternally. There were sharp, shooting pains, bilaterally in both arms. There was no nausea, no vomiting, no shortness of breath, no pallor, no sweating. There was a burning sensation. This is his first attack and he'd had a recent viral illness earlier in that week. There's no rash, no neck stiffness, no neck tenderness. He'd been feeling exhausted. His vital signs were a temperature of 36.7, a pulse of 78, respiratory rate of 16. His blood pressure fluctuated between 145 over 90 and 160 over 100. Diagnosis: there's a query viral myositis/myalgia. The treatment I suggested was to give the patient some codeine phosphate, 30 milligram tablets and to be reviewed again in 2 hours. Then I've made another note and it's reviewed at 1430 or 2.30, which is half an hour later, that says the pain was settling and that he'd had no help from some Mylanta which was also given."
Dr Lee went on to explain that "retrosternally"refer to pain behind the sternum or the middle part of the chest. He said he prescribed codeine phosphate to "settle down the muscle pain that he had been describing or that were described to me." He was asked whether Mr Ryan told him that Mr Varela was complaining of pain in the chin and jaw area and he said he did not recall and he had not mentioned it in his notes. He said he did not recall Mr Ryan telling him Mr Varela described the pain as someone trying to strangle him. He said he did not recall Mr Ryan telling him that Mr Varela said the pain was extending from his jaw and throat towards the chest area. He said Mr Ryan did not inform him that he had observed that every fourth or fifth heartbeat was weaker. He said Mr Ryan did not tell him that Mr Varela had been a smoker.
In cross‑examination, Dr Lee accepted he had not recorded every word of the conversation between him and Mr Ryan on 29 March 1997. He confirmed his recollection is limited to his notes. He said he had no recollection of the conversation at all, "Not specifically as to the detail". He confirmed he could not recall whether Mr Ryan told him Mr Varela complained of jaw pain. He confirmed he could not recall one way or the other whether Mr Ryan told Mr Varela complained of a strangling pain. He confirmed he could not recall one way or the other whether Mr Ryan told him Mr Varela had complained of jaw and throat pain going to the chest area. He confirmed he had no recollection one way or the other whether Mr Ryan told him about a weaker fourth or fifth heartbeat.
In re‑examination, Dr Lee said if Mr Ryan had informed him that every fourth or fifth heartbeat was weaker, it was likely he would have recorded that fact. Likewise, he said if Mr Ryan had informed him that Mr Varela described the pain as someone trying to strangle him, that was a fact which it was likely he would have noted, because "It's much less likely to have been related to a viral cause". Dr Lee said he would similarly have noted the fact that Mr Varela complained of pain extending from his jaw and throat towards his chest area, if Mr Ryan had told him that fact.
Dr Charles Thelander gave evidence he joined the RFDS in October 1995. He explained that his duties involved a lot of remote consultations by telephone. He identified Exhibit 5 as a Remote Consultation Report he completed on 30 March 1997. He said he had no independent recollection of that telephone call. He said in completing such a remote consultation report, he wrote down what he regarded as relevant at the particular time.
Exhibit 5 reads as follows:
"Name – Carlos Varela DOB 24/11/45 Age – 51 years
Location type
Address:
Vehicle Mechanic
History and Assessment:
(Emotionally excitable man with much stress at present)
BP 160/100:
Yesterday upset by pain in neck & jaw (Mike spoke to Dr Lee @ JKT)
Treated with Codeine phosphate & Panadol – This helped but still pain in lower jaw
& query has gingival infection lower jaw
Continue Panamax & Codeine Phosphate but commence Amoxicillin tid
Diagnosis:
? dental infection
Treatment:
Amoxil 25(3?)07 tid
Chest Items: 129
Signature: (of Dr Thelander)"
At 43 – 44 of the transcript, Dr Thelander gave the following evidence about the contents of Exhibit 5:
"The date was 30th of the 3rd, 97. The time was 11.33 hours. I wrote my name at the top and the Meekatharra base, which is a bit indistinguishable on this photocopy. The name of the person about whom the consultation was was Carlos Varela, date of birth 24 November 1945. I have written his occupation underneath, which was vehicle mechanic. His age was 51 years. He was of the male sex and he was of non‑Aboriginal background. And then in history and assessment I have written in brackets, 'Emotionally excitable man. Much stress at present. Yesterday upset by pain in neck and jaw,' and then in brackets, 'Mike spoke to Dr Lee at Jandakot. Treated with codeine phos and Panadol. This helped, but still pain in the lower jaw and query has gingival infection of the lower jaw.' I made a diagnosis of a query dental infection. He was to continue with the Panamax and codeine phos and to commence Amoxyl because it was apparent at that stage that he may well have had a dental infection causing pain in his gums and jaw. If the pain persists he is to be seen here at Meekatharra District Hospital. Would need ECG. Diagnosis, query dental infection. Treatment Amoxyl 250 milligrams TID, which is just Latin for three times a day. The chest item was 129 which is the Amoxycillin, the penicillin, which is appropriate for dental infections, and my signature follows."
Dr Thelander said all of the information in Exhibit 5 came from Mr Ryan. Dr Thelander then continued at p 44:
"What I said to him was that this was – he had raised the possibility of a dental infection and I said jaw pain, dental infections are not uncommon, particularly for mine sites. This was not an unreasonable diagnosis. I had suggested ongoing management of the discomfort and instituted some antibiotics and told him that if the pain persists he was to be seen at the hospital. I wrote the note to myself, 'Would need ECG.' I was aware that that mine site, along with many others, do not have electrocardiograph machines."
Dr Thelander gave evidence that according to his notes Mr Ryan had spoken to Dr Lee the previous day about pain in the jaw. There was no mention of chest pain. Dr Thelander said he would have recorded that if there had been. Dr Thelander said Mr Ryan did not inform him on 30 March 1997 that on the previous day Mr Varela had described the pain as a burning sensation. He said he had no record of Mr Ryan telling him that on the previous day Mr Varela had described the pain as if someone were trying to strangle him. He said pain in the jaw and neck was mentioned. He said Mr Ryan did not inform him that on 30 March 1997 Mr Varela had described a shooting pain in both arms that did not last long. He said Mr Ryan did not inform him that Mr Varela's temperature was about 36.7 degrees Centigrade, his pulse was 78 beats per minute and his blood pressure had been fluctuating between 145/90 and 160/100. He said Mr Ryan did not inform him that on the previous day, 29 March 1997, Mr Ryan had detected that every fourth or fifth heartbeat appeared weak.
Dr Thelander said if such information was not recorded in his remote consultation report it would be correct to assume Mr Ryan did not give him the information on that day.
The doctor went on to say that the possibility Mr Varela's condition might be cardiac‑related had occurred to him. He did not recall whether he mentioned that possibility to Mr Ryan.

Did Mr Varela speak to Dr Lee on 29 March 1997 and to Dr Thelander on 30 March 1997?

The evidence of Mr Ryan was Mr Varela spoke to Dr Lee from the First Aid Room on 29 March 1997. In cross‑examination, he accepted he made no note of such conversation in Exhibit 8 and he may be wrong in his recollection. He accepted he did not tell the Police of the conversation and he did not mention the conversation during his evidence before the coroner. Dr Lee said he had no recollection of speaking to Mr Varela. He believed the absence of a note to that effect in Exhibit 4 suggested he did not speak to Mr Varela.
The evidence of Mr Ryan was Mr Varela spoke to Dr Thelander by telephone on 30 March 1997 in the presence of Mr Ryan. Mr Ryan said he did not hear what Mr Varela told Dr Thelander on the telephone. Dr Thelander gave evidence he did not speak to Mr Varela by telephone on 30 March 1997.

Findings of fact in relation to what Mr Varela told Mr Ryan, what Mr Ryan told Drs Lee and Thelander, and whether Mr Varela spoke by telephone to the doctors

In cross‑examination, Mr Ryan accepted that Mr Varela came to see him on 29 March 1997 in an agitated condition. He accepted that he did not record his opinion of Mr Varela's condition in Exhibit 8. He accepted also he gave a statement to Police on 1 April 1997 to the effect that Mr Varela had complained of pain in the chin and jaw area and had described the pain as someone trying to strangle him. Mr Ryan accepted that Exhibit 8 does not record pain in the jaw. Mr Ryan said he read his notes from Exhibit 8 to Dr Lee. He accepted he did not tell Dr Lee Mr Varela had complained of pain in the chin and jaw. On his evidence and that of Dr Lee I so find. Mr Ryan further acknowledged he did not tell Dr Lee Mr Varela appeared to him to be in an agitated state and I so find.
On the evidence of Dr Lee and Mr Ryan, I also find Mr Ryan did not inform Dr Lee Mr Varela described the pain as someone trying to strangle him. Mr Ryan's evidence that he gave this information to Dr Lee was based upon his belief that he read his notes in Exhibit 8 to Dr Lee. His evidence (T106) was "I basically read from the sheet." This evidence is to be compared with his evidence that when he spoke to Dr Thelander the following day he "went through the contents of the document with him". I find it is more likely than not Mr Ryan did not literally read his notes in Exhibit 8 to Dr Lee. I also find it is more likely than not that Dr Lee would have noted down the information that the pain was as if someone were trying to strangle Mr Varela, if that were the fact. The evidence of Mr Ryan was that he informed Dr Lee that he believed every fourth or fifth heartbeat was weaker. Once again, I find it is more likely Dr Lee would have noted such information if Mr Ryan had given it to him.
Mr Ryan was asked why he contacted Dr Lee when Mr Varela came to see him on 29 March 1997 to which he replied: "I felt it was a medical condition that needed a doctor's opinion." He was then asked "Was there anything about his condition on 29 March 1997 that concerned you in particular?" He replied "I really can't recall." I found the answer to this question material for two reasons. Firstly, it is inconsistent with the notes of his observations of Mr Varela in Exhibit 8. Secondly, I made particular note that Mr Ryan took several seconds to consider his answer to the question, only to say he really could not recall.
I also found the evidence of Mr Ryan to be unreliable in relation to the question whether Mr Varela spoke to Dr Lee on 29 March 1997 and to Dr Thelander on 30 March 1997. I find the fact that neither doctor made a note of the conversations is significant in the circumstances. On the balance of probabilities, I find neither conversation took place.
It is common ground in this action that Mr Ryan spoke to Dr Thelander by telephone on 30 March 1997. Mr Ryan gave evidence he wanted to speak to a doctor that morning because he was not happy with Mr Varela's condition at that stage and he said he needed a doctor's opinion on what the problem was. He said Mr Varela was with him in the First Aid Room and he had Exhibit 8 in front of him when he spoke to Dr Thelander. He said he could not remember whether he repeated any or all of the comments he had made to Dr Lee the day before. He said Mr Varela spoke to Dr Thelander on the telephone.
In cross‑examination, Mr Ryan said he did not recall Dr Thelander informing him that Mr Varela was to be seen at Meekatharra District Hospital if the pain persisted. Mr Ryan agreed he did not prepare a new patient information form for the telephone conversation of 30 March 1997 because he regarded the events of 30 March 1997 as a continuation of what had occurred on 29 March 1997. He agreed with Dr Thelander it was about 11.33 am and he agreed he told Dr Thelander Mr Varela was "emotionally excitable and under much stress at present". He agreed he told Dr Thelander that Mr Varela's blood pressure was 160/100 but that this information was not noted on Exhibit 8. He agreed Dr Thelander obtained the information contained in Exhibit 5 from Mr Ryan. He agreed the note "Treated with codeine phosphate and Panadol" was correct. He agreed the note "This helped but still pain in lower jaw" was correct. He agreed Dr Thelander may have mentioned the possibility of gingival infection. He agreed with the doctor's note of his prescription in Exhibit 5. He said he could not remember whether Dr Thelander told him that if pain persisted Mr Varela was to be seen at the Meekatharra District Hospital. He said it was possible. Mr Ryan said he could not remember exactly what he told Dr Thelander but he was using Exhibit 8 as his "guidance note".
On the evidence of Dr Thelander, I find Mr Ryan did not tell him that Mr Varela had stated he had pain which extended from the jaw and throat towards the chest area, that Mr Varela described the pain as burning in nature, that Mr Varela had described to Mr Ryan shooting type pain in both arms that did not last long, that Mr Varela described the pain as someone trying to strangle him, and that every fourth or fifth heartbeat appeared weaker. I accept the evidence of Dr Thelander, as Exhibit 5 suggests, that he told Mr Ryan that if pain persisted, Mr Varela was to be seen at the Meekatharra District Hospital.
These findings of fact in relation to what Mr Varela told Mr Ryan and in relation to what Mr Ryan told doctors Lee and Thelander establish on the balance of probabilities that Mr Ryan failed to supply the information I have identified to Dr Lee and Dr Thelander on 29 and 30 March 1997 for the purpose of obtaining advice in connection with Mr Varela's symptoms.

The negligence alleged in par 5 of the statement of claim and the defence in par 7 of the amended defence

As I have explained, the case for the plaintiff on the pleadings and the evidence is that the defendant was under a duty to provide information to Dr Lee and to Dr Thelander, and to take reasonable care to ensure that information was correct. It is alleged that but for the failure of Mr Ryan to provide the information that I have found he did not provide do the doctors, the death of Mr Varela would not have occurred on 1 April 1997,
The plaintiff alleges the existence of the duty in this case because she says the defendant through Mr Ryan failed to conclude the deceased was or might be suffering from pre‑infarction symptoms on 29 March, 30 March or 1 April 1997. While par 5(a) of the statement of claim is couched in the imperfect tense, it was common ground before me that the pleading includes an allegation that Mr Ryan failed to conclude that Mr Varela might be suffering from pre‑infarction symptoms on the dates alleged.
It is implicit in this allegation that Mr Ryan's training and experience was sufficient to enable him to conclude Mr Varela was or might be suffering from pre‑infarction symptoms on the relevant dates. The evidence of Mr Ryan is that he did not recognise the symptoms as cardiac‑related. I do not accept this evidence of Mr Ryan for the following reasons. Firstly, his own evidence was he had been trained to recognise cardiac-related symptoms. Secondly, he noted a number of symptoms which the evidence establishes are cardiac‑related, although he did not provide them to the doctors. Thirdly, his evidence was that, he felt at the time, Mr Varela's condition was such that he needed a doctor's opinion. Fourthly, he embarked upon obtaining that opinion. Fifthly, I have already said I do not accept the evidence of Mr Ryan he could not recall whether there was anything about the condition of Mr Varela on 29 March 1997 that concerned him in particular. His course of conduct (other than his failure to provide pertinent information to the doctors) all suggests Mr Ryan did recognise Mr Varela's condition as cardiac-related on the dates alleged, but failed for some unexplained reason to provide the symptoms to the doctors.
If it is not open to conclude on the evidence that Mr Ryan recognised the symptoms as cardiac‑related, I find on his evidence he was sufficiently trained and experienced to recognise such symptoms and ought in the circumstances to have done so, or ought at the very least to have recognised that the symptoms might be cardiac‑related. It was not necessary for him to come to the diagnosis of a medical practitioner. In addition, Mr Ryan was not required to express an opinion to Dr Lee or Dr Thelander about the origin or diagnosis of Mr Varela's symptoms. As Dr Cumpston, for the defendant, said at p 180 of the transcript, it was not for Mr Ryan to say to Dr Lee or Dr Thelander "This is a heart problem. I need you to take this man right away."
As I have explained, it is then alleged in par 5(b) of the statement of claim, the defendant failed to supply the pertinent information to the doctors on 29 and 30 March 1997 for the purpose of obtaining advice in connection with Mr Varela's symptoms and thereby failed to obtain an accurate diagnosis or advice. I have already found Mr Ryan failed to provide the pertinent information alleged. There is no question on the evidence that the diagnosis and advice obtained from the doctors on the information provided was in the event not accurate. In the absence of the pertinent information, that is hardly surprising given that the consultation was by telephone at a distance. I reject any suggestion that it was for the doctors to probe Mr Ryan about any number of possible symptoms of which, unbeknown to the doctors, Mr Varela may have complained to Mr Ryan.
The existence of the duty of the defendant to provide accurate information to Dr Lee and to Dr Thelander and to take reasonable care to ensure the information was correct is not in issue. I accept the submission for the plaintiff that the defendant is liable for all the foreseeable consequences of the information being incomplete and wrong. It is not necessary for the plaintiff to establish that Mr Ryan should have foreseen the death of Mr Varela, but only that his death was one of the kind of consequences that might occur if the information he provided was incomplete and wrong. On the evidence, I find the death of Mr Varela was such a consequence, on the balance of probabilities.

The ultimate issue on the pleadings in this case is one of causation. It is alleged that but for the failure of Mr Ryan to recognise Mr Varela's symptoms as cardiac‑related and his failure to provide information about the symptoms to the doctors, Mr Varela would not have died on 1 April 1997. The amended defence pleads that the cause of death was coronary arteriosclerosis and chronic obstructive airways disease. On the evidence there can be no doubt about this is so and I so find. Such was the medical cause of Mr Varela's death. It is then pleaded in par 7 of the amended defence:
"Further or in the alternative, if the Defendant or its servants or agents, were negligent, which is denied, that negligence was not the cause of the death of the deceased. The deceased died as a consequence of the natural progression of a pre‑existing condition, being coronary arteriosclerosis and chronic obstructive airways disease and would have died regardless of any negligence of the Defendant or its employees."
The onus is upon the plaintiff to establish on the balance of probabilities that but for the failure of Mr Ryan to recognise Mr Varela's symptoms as cardiac-related and his failure to provide accurate information about them to the doctors for the purpose of enabling the doctors to diagnose Mr Varela's condition and to advise, if necessary, upon a course of action to treat him, it is more likely than not that Mr Varela would not have died on 1 April 1997.
Dr Max Traub gave evidence for the plaintiff, having seen Exhibit 2, that if Mr Varela's condition had been investigated appropriately, it could have been easily treated in hospital on 29 and 30 March 1997. He explained the procedures which could have been completed within 24 hours. He expressed the opinion if Mr Varela had been taken to Meekatharra Hospital on 29 March 1997, it was "highly probable" he would have survived and "still quite probable" on 30 March 1997. He said if Mr Varela had been evacuated to Royal Perth Hospital on 29, 30 or 31 March 1997, Mr Varela would have had a "very good chance" of survival. There is no evidence to the contrary and, as I say, I find it is more likely than not Mr Varela would have survived. I find he would not have died regardless of any negligence of the defendant or its employees. In case it is necessary, I also find that the journey from the mine site to Meekatharra Hospital was a distance of some 80 kilometres over a good road which in the circumstances would have incurred no unreasonable inconvenience or expense.
Upon this evidence, I find that but for the failure of Mr Ryan to recognise that Mr Varela's symptoms might be cardiac‑related and his failure to provide accurate information about those symptoms to Drs Lee and Dr Thelander, it is more likely than not the death of Mr Varela would not have occurred on 1 April 1997.
Accordingly, I find the negligence of the defendant alleged in par 5 of the statement of claim to be established on the evidence. The quantum of damages to which the plaintiff is entitled has been agreed. There will therefore be judgment for the plaintiff in the sum of $240,000.