Avsar v Westland Healthcare Ltd
[2007] WADC 27
•15 MARCH 2007 typed from tape and edited by the Trial Judge
AVSAR as Administratrix of the estate of Antoinette Maria Cowan -v- WESTLAND HEALTHCARE LTD [2007] WADC 27
| Link to Appeal : | [2008] WASCA 35 [2012] WASCA 125 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 27 | |
| Case No: | CIV:3175/1997 | 1215 MARCH 2007 | |
| Coram: | KEEN DCJ | 14/03/07 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| PDF Version |
| Parties: | JENNIFER PATRICIA AVSAR as Administratrix of the estate of Antoinette Maria Cowan WESTLAND HEALTHCARE LTD |
Catchwords: | Fatal Accidents Act Causation Preliminary issue |
Legislation: | Nil |
Case References: | Chappel v Hart (1998) 195 CLR 232 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Western Australia v Watson [1990] WAR 248 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Naxakis v Western General Hospital (1999) 197 CLR 269 Strempel v Wood [2005] WASCA 163 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WESTLAND HEALTHCARE LTD
Defendant
Catchwords:
Fatal Accidents Act - Causation - Preliminary issue
Legislation:
Nil
Result:
Action dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : In person
Defendant : Ms F C E Davis
Solicitors:
Plaintiff : Not applicable
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Western Australia v Watson [1990] WAR 248
Case(s) also cited:
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Naxakis v Western General Hospital (1999) 197 CLR 269
Strempel v Wood [2005] WASCA 163
(Page 3)
1 KEEN DCJ: In this matter the plaintiff claims damages pursuant to the Fatal Accidents Act 1959 and the Law Reform Miscellaneous Provisions Act 1941 arising out of the death of her mother, Antoinette Maria Cowan. Her mother died on 16 February 1996 in South Australia. Throughout these reasons I will variously refer to her as Mrs Cowan or the deceased.
2 Section 4 subsection (1) of the Fatal Accidents Act provides:
"(1) Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime."
3 The matter came on for trial on 12 March 2007 when the only matter to be dealt with as a preliminary issue was whether the alleged negligence of the defendant caused the death of the deceased. On that day the plaintiff applied to transfer the trial to South Australia, in effect seeking to adjourn the trial. I refused that application for the reasons that I expressed orally on that day.
4 The plaintiff took an active part in the trial on that day, but it is a matter of some considerable regret that thereafter at times she absented herself from the trial with no excuse, save that she had apparently applied to the Court of Appeal to stay the trial.
5 As I understand the position, when the matter resumed on 13 March 2007, no stay had been granted and, as I have noted, the plaintiff did not appear to make any application on that day. Accordingly, the trial proceeded in the absence of the plaintiff. On 14 March 2007 the plaintiff made a further application to adjourn the trial which I again refused. She also made application for evidence to be taken by video-link, which I also refused. I gave reasons in respect of both matters on that day and I need not repeat them here.
The undisputed facts
6 The deceased was at the date of her death aged 69 and a diabetic.
(Page 4)
7 On 21 September 1995 the deceased was admitted into the Applecross Nursing Home, which for the sake of convenience from here on I will call "the home", which was operated and maintained by the defendant who became the deceased's sole carer.
8 On 28 September 1995 the defendant's staff accidentally administered a double dose of insulin to the deceased.
9 That same day the deceased was admitted to Fremantle Hospital where she was treated and she was discharged into the care of the defendant the following day. The deceased returned to Fremantle Hospital on 9 October 1995 where she stayed until 16 October 1995 when again she was discharged back to the home.
10 The deceased left the home on 19 October 1995 and returned with the plaintiff to Adelaide to live with the plaintiff. The deceased died on 16 February 1996.
The pleadings
11 By the statement of claim the plaintiff alleged negligence and breach of implied contractual terms on the part of the defendant.
12 Dealing with the contractual terms, it is said that the term that is to be applied is that the defendant would accurately administer medication to the deceased and to implement a system to ensure the same. As to the former, that is to say, the duty of care, it is alleged that that was to ensure that the deceased received proper medical treatment.
13 The statement of claim at par 16 alleges breach of those implied terms and breach of duty and sets out particulars as follows:
"(a) Failing to provide proper and/or adequate care for the Deceased;
(b) Failing to ensure the Deceased received proper medical treatment;
(c) Failing to ensure that the Deceased's medication was accurately and properly administered;
(d) Failing to adequately and/or properly supervise the administration of medication to the Deceased;
(Page 5)
- (e) Failing to adequately or properly supervise members of staff in the administration of medication to the Deceased;
(f) Failing to ensure members of staff kept written records of all medical treatment and medication administered to the Deceased;
(g) Failing to implement a system of checks and records to prevent the administration of double dosages of medication to the Deceased;
(h) Failing to prevent the Deceased being administered double the prescribed dosage of insulin;
(i) Failing to take any or any adequate care for the health and safety of the Deceased while she was a resident of the Nursing Home;
(j) Failing to take the Deceased immediately to the Hospital for emergency treatment whilst vomiting and being made to wait for over five hours at the Nursing Home and another eight hours after before being stabilised in Fremantle Hospital;
(k) Failing to notify and advise the plaintiff (daughter and only child) about its failure of duty of care in the Nursing Home when the plaintiff came to the Nursing Home from Adelaide to visit the Deceased; and
(l) Failing to allow the family of the Deceased to care or nurse the deceased in the appropriate manner, whilst the duty of care was not disclosed to the family and the deceased's family doctor in Adelaide."
14 The defence denies negligence and breach of contract and sets up what the defendants say was the deceased's condition on admission into the nursing home. By par 2.2 of the defence it is said that the deceased, in addition to suffering multi-infarct dementia and diabetes was obese, suffered from hypertension, had suffered a GI bleed, had suffered from incontinence of both urine and faeces, had previously suffered a number of falls, required assistance when walking due to an unsteady gait and her history of repetitive falls, required assistance to be taken to the toilet, suffered from impaired communication with speech that was difficult to understand and had a tendency to wander.
(Page 6)
15 Relevantly, the defence does not admit the implied terms or the duty of care and denies that there was a breach of either causing the death of the deceased.
The evidence
16 Dr Milligan is a general practitioner. She first saw the deceased in about April 1990. The deceased had been referred to her with a history of raised blood pressure and diabetes which was not well controlled. There appeared to be a deterioration in the deceased's condition towards 1994 and the doctor gave a history of the deceased's blood sugar levels being above normal and her having a raised cholesterol level and of alcohol consumption. The doctor gave advice on the deceased's diet and prescribed appropriate medication.
17 By 1992 the deceased was having dizzy spells and loss of short-term memory. She was referred to the diabetes clinic at Fremantle Hospital.
18 Evidence was given by the doctor of a number of visits to the deceased. The findings of the doctor can be paraphrased as the blood sugar levels being generally stable, blood pressure generally good, there being some increase in weight and she consumed alcohol. The deceased had been started on insulin via injection but had complained of pain at the needle sites. The medication was varied from time to time as needed.
19 The doctor gave evidence that the deceased took part in a study at the Fremantle Hospital in June 1994. That was, as I understand it, in the diabetic clinic. The deceased was found to have hypertension, peripheral vascular disease, retinopathic changes requiring evaluation by an ophthalmologist (the deceased saw Dr Starling in this regard), high cholesterol, elevated uric acid levels and her electrocardiograph showed a heart ventricle which was enlarged as a result of her elevated blood pressure.
20 In November 1994, the deceased was admitted into Fremantle Hospital following a fall. A CT scan was carried out which revealed multiple infarcts which were said to possibly account for the dizzy spells.
21 The doctor's evidence continued that as time passed the deceased's speech deteriorated and from 1995 she became more difficult to manage and irritable. She was eating excessively and respite care was needed for her. The evidence was that she was also aggressive. She could not understand and follow instructions to get out of bed and was incontinent. She was deteriorating cognitively.
(Page 7)
22 On 18 September 1995 Dr Milligan signed a form NH5 to enable the deceased to be considered for nursing home placement. She diagnosed Alzheimer's disease, diabetes and hypertension. The doctor said that the deceased needed nursing home care as she had disruptive behaviour, incontinence and was not able to look after herself. The doctor's prognosis for the deceased was of reduced life expectancy.
23 After admission into the home Dr Milligan did not have anything further to do with the deceased.
24 Some attempt was made by the plaintiff in cross-examination to undermine the reasons for admission into the home by suggestions that the deceased could not communicate effectively in English and that the information provided to the doctor was via Mr Cowan who had some ulterior motive for putting the deceased into the home and had otherwise acted against the deceased's interests. I allowed that cross-examination to a limited extent, but it transgressed beyond the issues revealed by the pleadings and it seemed to me that the source history given to the doctor was immaterial to a large extent, save to the extent that it might reflect upon her findings on examination, but it is those findings which are of more importance.
25 Further, what was behind the entry into the home was irrelevant so far as it concerned this witness and the issued raised in this case, particularly at this preliminary issue level. The fact is that the deceased was admitted to the home for whatever reason and it was there that she received the double dose of insulin.
26 Dr Graham Stewart was called to give evidence on behalf of the defence. At the material time he was the head of the diabetic clinic at Fremantle Hospital.
27 His evidence was given by way of video-link and comprised a report dated 26 March 2004 and a supplementary substance of evidence dated 26 December 2006 and oral examination by way of clarification.
28 He said that the deceased came under his care in about 1992. His evidence was that there had been a diagnosis of diabetes since about 1985 which was not then well controlled. In his supplementary substance of evidence at par 7, he said that the normal range for blood sugar levels is between three and eight millimols per litre.
(Page 8)
29 His evidence was that the effect of a double dose of insulin would be to reduce blood sugar levels below the normal range. In evidence he said that if that reduction was to a level of between two and three, the symptoms might be tremors and sweating. If the level dropped between one and two, it could cause mental confusion, and below one could cause seizure. He said in evidence that there was no evidence of Mrs Cowan experiencing seizure and her blood sugar level did not fall below two.
30 In that supplementary substance of evidence statement at par 8 Dr Stewart said that once the blood sugar level was restored to normal range there should be no permanent effect. He said that rarely would there be permanent brain damage from hypoglycaemia (the effect of the reduction in blood sugar levels), and said in evidence that if a patient had a very low blood sugar level he or she would be confused, drowsy or unconscious. He said that Mrs Cowan was closely observed at the hospital and whilst at times she was drowsy, she was never not able to be aroused.
31 The supplementary statement showed that Mrs Cowan fully recovered and was discharged from hospital on 29 September 1995. The supplementary statement of evidence also shows that the treatment for hypoglycaemia is by way of oral sugars or glucose or intravenous glucose or the administration of intramuscular glucagon.
32 The doctor said that he had reviewed the hospital and home notes. He noted that in the home the blood sugar levels were checked immediately it was discovered that the second dose had been given and then every half hour thereafter, and she was given glucose and glucagon on the advice of her doctor. Dr Stewart said that this treatment and that given by the hospital later was appropriate treatment in the circumstances.
33 In his report Dr Stewart noted that Mrs Cowan was readmitted into hospital on 8 October 1995 with confusion, which was thought to be due to urinary tract infection. She was discharged back to the home on 16 October 1995.
34 Dr Stewart also noted that in 1994 Mrs Cowan had been diagnosed with multi-infarct dementia after investigation follow falls. He also noted the history of hypertension. He said that diabetes and hypertension increased the risk of cerebral infarction. He said that a patient would not expect to recover from multi-infarct dementia which tended to be progressive and ultimately fatal.
(Page 9)
35 Dr Stewart said that the deceased's life expectancy would have been diminished by diabetes and hypertension and in addition the deceased was obese. Dr Stewart's opinion was that the double dose of insulin given on 28 September 1995 did not contribute to the deceased's death some five months later.
36 Helen Huband was also called by the defence. She was the director of nursing at Applecross Nursing Home and she produced the home's records relating to Mrs Cowan. These documents may be properly described as business records. One of those documents is a Data Base Form 1 which was completed. That showed, amongst other things, that the obstacles at home were falls and incontinence; her mental state was very vague and she was non-communicative; as to communication, her speech was difficult to understand; as to her previous medical history, she had multi-infarct dementia, hypertension and diabetes; as to her general appearance, she was obese, flushed and sweating; in respect of gait and mobility, it was noted that she needed assistance when walking due to unsteady gait, repetitive falls; as to safety, it was noted that she tended to wander and there was a history of falls; under the heading of problems as seen by resident, it was noted that the deceased wanted to go home with her husband; as to problem as seen by the family, it was noted that the husband was unable to cope due to deterioration in his wife's health, and as to the problems seen by staff, it was noted that Mrs Cowan had a tendency to wander.
37 Mrs Huband noted that Mrs Cowan was a heavily dependent, high-care patient prior to admission on 21 September 2005.
38 Her evidence dealt with the systems at the home and the procedures following a medication error and that those procedures were carried out following the giving of the double dose of insulin to the deceased, including the administration of glucose drinks and food, and administration of a glucagon hypokit on the advice of Dr Willis. It was on his advice, when the deceased's blood sugar levels did not stabilise, that Mrs Cowan was transferred to Fremantle Hospital.
39 After her return from hospital, according to Mrs Huband, there was nothing to suggest that Mrs Cowan had made anything but a full recovery.
40 As to the readmission to Fremantle Hospital on 9 October 1995, Mrs Huband said that Mrs Cowan was found unconscious and transferred to Fremantle Hospital, but she did not believe that that was anything to do with the double dose of insulin previously administered in September
(Page 10)
- 1995. The integrated progress notes of the home reveal that on 10 October 1995 Mr Cowan said that the doctors at Fremantle Hospital had said that Mrs Cowan had had a CVA (cerebrovascular accident), which seems to be at odds with Dr Stewart's evidence which is supported by the discharge letter from the Fremantle Hospital on 16 October 1995, which refers to UTI, (urinary tract infection). The integrated progress notes at the home reveal that Mrs Cowan left the home on 19 October 2005 to go with the plaintiff to South Australia.
41 Flora Munro was a registered nurse and in September 1995 was employed by the home. She gave evidence that on the day of Mrs Cowan's admission she recorded in the progress notes that Mrs Cowan was diabetic, had a history of hypertension and had Alzheimer's-type dementia and had become distressed when her husband left. She noted that Mrs Cowan had difficulty in mobilising and would fall. She also needed assistance with washing and dressing and did these less and less.
42 On the morning of 28 September 1995 it was Mrs Munro who gave the deceased her morning injection of insulin. Prior to doing so she had checked the medication chart for the deceased which suggested that she had not then had her injection. As Mrs Munro was withdrawing the needle, another nurse came in and advised her that Mrs Cowan had already had her morning dose. Following the home protocols Ms Munro telephoned Dr Willis. Thereafter, she monitored the blood sugar levels every half hour and recorded the findings. Between 9.30 am and 10 30 am the readings varied between 5.6 and 8.2. Ms Munro was aware of the normal range of readings. She administered a glucagon hypokit at 12.15 and at 12.30 Mrs Cowan was transferred to Fremantle Hospital.
43 Helen Simmonds is also a registered nurse and has been since 1967. She gave evidence that she commenced work at the home on 1 August 1995. She recalled that the deceased was difficult to care for, could not walk without assistance and fell out of bed. She found the deceased on the floor next to her bed on 25 September 1995. She had incontinence.
44 After the double dose of insulin on 28 September 1995 and after Mrs Cowan had been returned from the hospital Mrs Simmonds saw her again on 5 October. On that occasion she did not detect any change in Mrs Cowan's condition which was the same the whole time she was at the home.
(Page 11)
45 It was Mrs Simmonds who found Mrs Cowan on 9 October 1995. Mrs Cowan was unconscious. Her blood sugar level was 1.5. Mrs Simmonds administered honey to Mrs Cowan's gums and contacted her doctor, following which Mrs Cowan was given an injection of glucogon but she did not respond. This indicated to Mrs Simmonds that there was not a hypoglycaemic attack but some other condition. Mrs Cowan was transferred to Fremantle Hospital.
46 I now wish to deal with the evidence from the plaintiff, such as it is. As I noted, the plaintiff absented herself from the trial after the first day and took no further part in the proceedings until the hearing of her application to adjourn the trial and the hearing of her application for evidence by video-link on 14 March 2007, which applications I refused. The plaintiff then went into evidence. She had prepared a witness statement dated 10 March 2007 to which were annexed a number of documents, many of which were already in evidence as part of the Fremantle Hospital file or the file of the home.
47 Objection was taken to the statement by counsel for the defendant. The objections were almost entirely well-founded and I gave reasons ex tempore for excluding most of the evidence. Most of that evidence was, amongst other things, a combination of hearsay, comment, argument and irrelevant material. What was left was little more than formal matters, not really having any impact on the issues to be determined at this preliminary hearing.
48 I then invited the plaintiff to give further evidence subject to any just exception or objection from the defendant. I reminded her that that evidence had to be admissible and relevant to the matters in issue in the context of which I had previously advised her. The plaintiff absented herself from the hearing on 15 March 2007 and has given no further evidence.
The legal principles
49 The plaintiff's claim according to the statement of claim is that the defendant's negligence or breach of contract resulted in the deceased's condition deteriorating rapidly, resulting in her death on 16 February 1996. It does not appear from that pleading that the plaintiff is saying that the double dose of insulin directly caused the death, but accelerated the deceased's condition leading to her death, in other words her premature death. Not having had the benefit of evidence or submissions from the plaintiff other than that to which I have referred, I deal with the matter on each basis.
(Page 12)
50 Having said that, the preliminary issue is still whether the death of the deceased occurred as a result of the negligence of the defendant. In this case the only question that arises at this stage of the proceedings is causation. Causation is a question of fact to be determined by applying commonsense to the facts: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
51 It is trite that the onus of proof rests with the plaintiff. As expressed by the defence in its submissions the plaintiff bears the onus of proving that the deceased's death was caused or materially contributed to by the negligence of the defendant and a contribution is material if it is shown on the evidence not to have been negligible, Western Australia v Watson [1990] WAR 248.
52 Counsel for the defence raised other cases in support of these contentions, but it is only necessary for me to mention Chappel v Hart (1998) 195 CLR 232 In Chappel, McHugh J at 26 said:
"Underlying the rejection of the 'but for' test as the determinant of legal causation is the instinctive belief that a person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury that befell the plaintiff."
53 His Honour went on to say at [27]:
"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the
(Page 13)
- plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring."
Findings
54 Having dealt with those principles, I now move on to my findings in this matter. As I have noted, there are a number of admissions. I need only note at this stage that the admission that is material is that the defendant administered what can only be described as a wrongful dose of insulin to Mrs Cowan on 28 September 1995. In relation to causation, I find as a fact that the administration of that double dose of insulin arose out of the negligence of the defendant's servants or agents. Had the nurse who gave the first dose timely completed the medication chart then, on the evidence of Mrs Munro, and having regard to her practice to consult the chart and the application of commonsense, the giving of the second dose would have been avoided.
55 I make no finding as to what, if any terms, were implied into the contract. There is little evidence as to the true nature of the contract and contracting parties and, save for a plea that moneys were paid by the deceased or on her behalf for her accommodation, the contract itself has not been identified in the pleadings or elsewhere. In the end it does not matter in view of my finding of negligence on the part of the defendant in the manner of administering the medication to the deceased.
56 I also find that that administration of the double dose of insulin did cause some injury to the deceased. The records show that her blood sugar level became unstable and she was treated for this. She had to be transferred to Fremantle Hospital where, according to Dr Stewart, she was drowsy. She had become hypoglycaemic and there is no explanation for this, other than the giving of the double dose of insulin.
57 However, my task is to try to find the cause of the deceased's death. The plaintiff's claim is as per the statement of claim that the defendant's negligence or breach of contract resulted in the deceased's condition deteriorating rapidly, resulting in her death on 16 February 1996.
58 As I noted earlier, it does not appear from that pleading that the plaintiff is actually saying that the double dose of insulin directly caused the death, but accelerated her condition leading to death, in other words her premature death. I said that I proposed to deal with this matter on each basis.
(Page 14)
59 As to the causing of death, I find that the evidence clearly establishes that the deceased had diabetes, hypertension and multi-infarct dementia. That is well documented in the doctors' notes and the medical records from Fremantle Hospital.
60 I received no evidence to suggest any reason why I should not accept those records as an accurate record of the deceased's condition and findings on examination from time to time. Those records are business records of the hospital and, apart from having been tendered by Ms Tepania pursuant to subpoena, would be admissible under s 79C of the Evidence Act. By s 79D of that Act, when considering the weight I should give those documents, I should have regard to the factors set out in that section. Those factors include contemporaneity of the entries in the documents, whether those entries were made by qualified persons and whether such information is collected systematically and pursuant to some duty. The file has all those hallmarks and I accept it as an accurate record relating to this patient.
61 I find that the treatment given by the home after the double dose of insulin was appropriate. According to the evidence it was within the protocols of the home and Dr Stewart said in evidence that it was appropriate treatment. There is no evidence to the contrary. I also find that the treatment at the hospital was appropriate and accept the evidence of Dr Stewart in this regard, and again there was no evidence to the contrary. I also accept the evidence of Mrs Huband to the effect that there was nothing about Mrs Cowan's appearance when she returned to the home to suggest that she had not made a good and complete recovery from the double dose of insulin. This is supported by Ms Simmonds and is consistent with the evidence of Dr Stewart that hypoglycaemic attacks are common and are easily treated.
62 I therefore find that the deceased had made a complete recovery from the double dose of insulin by the time that she was discharged from hospital on 29 September 1995.
63 The evidence of Dr Stewart which I accept is that there is very rarely any permanent damage from hypoglycaemia and that he had only seen one such incident of permanent damage in 35 years. The evidence was, and I so find, that the deceased was deteriorating rapidly both physically and mentally prior to her admission to the home and she continued to deteriorate. Dr Stewart's evidence was that her multi-infarct dementia was likely to reduce her life expectancy and that it could be that she had a few
(Page 15)
- months or several years to live. As counsel for the defence put it, she was going to die, it was just a question of when.
64 Multi-infarct dementia is a progressive condition and coupled with her hypertension and diabetes it is clear that Mrs Cowan was very unwell. There is no evidence before me to show, let alone even suggest that the double dose of insulin caused or contributed to the death of Mrs Cowan. In fact, the contrary is the case, namely that she had made a complete recovery from the effects of the overdose.
65 The death certificate, which is Exhibit 8 shows the cause of death in February 1996 to be multi cerebravascular accidents, diabetes mellitus and alcoholism. It is interesting to note the first cause is said to be of a one year duration and the second of two years' duration which would appear to be contrary to all the other evidence.
66 In the circumstances, I find that the double dose of insulin on 28 September 1995 did not cause the death of Mrs Cowan on 16 February 1996.
67 For the sake of completeness, I also find that evidence does not demonstrate that the double dose of insulin contributed in any way to the death of Mrs Cowan and for the reasons expressed by me, in facts demonstrate the opposite.
68 Accordingly, applying the legal principles as enunciated by McHugh J in Chappel's case, there is no evidence to show that the wrongful act of administering the double dose of insulin increased the risk of injury or in fact caused any injury to the plaintiff beyond that which was successfully treated at the hospital.
69 On the issue of whether or not the giving of the double dose of insulin accelerated the death, by reason of my findings that the defendant had made a complete recovery from the double dose of insulin, I find that that episode did not cause any acceleration in the death of the deceased. As I have noted, the deceased had a number of conditions, at least one of which, the multi-infarct dementia, was progressive. I am not satisfied on the evidence that the double dose of insulin had any part to play in the death of the deceased by accelerating that event or otherwise.
70 I now return to the allegations in the pleaded case. The case against the defendant is that the negligence of the defendant resulted in the death of the deceased. Put in the terms of the Fatal Accidents Act the question is did the wrongful act of the defendant cause the death? I have accepted
(Page 16)
- that the act of the defendant was wrongful and I accept that pars (a) to (i) in the particulars of negligence at par 16 of the statement of claim are made out. Paragraph (j) had not been made out. In my opinion the steps taken by home were appropriate. Paragraphs (k) and (l) are not made out as being any wrongful act causative of any damage to the deceased.
71 Notwithstanding that I have found pars (a) to (i) in the allegations of negligence to have been made out, for the reasons I have expressed I find that the death of the deceased was not causally connected to that negligence.
72 The result is that I find that the plaintiff has failed on the preliminary issue directed to be tried before me. Once that issue is determined against the plaintiff there is nothing left within the action to be determined and the action should be dismissed.
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