Bourke v MacNeil - [2000] NSWCA 144

NEW SOUTH WALES COURT OF APPEAL

CITATION: Bourke v MacNeil [2000] NSWCA 144

FILE NUMBER(S):
40657/98
40666/98

HEARING DATE(S): 23/03/00

JUDGMENT DATE: 14/06/2000

PARTIES:
Steven Gowan Bourke - Appellant
Peter MacNeil - Respondent
Peter MacNeil - Appellant
Steven Gowan Bourke - Respondent

JUDGMENT OF: Mason P Heydon JA Rolfe AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20391/97

LOWER COURT JUDICIAL OFFICER: Murray AJ

COUNSEL:
Mr B.M.J. Toomey QC/Mr R.L.Ingram - Bourke
Mr A.J. Sullivan QC/Mr I.F. Butcher - MacNeil

SOLICITORS:
Denniston & Day - Bourke
Blake Dawson Waldron - MacNeil

CATCHWORDS:
Medical - medical negligence - specialist general surgeon - alleged failure to warn about possible post-operative complication - dispute about whether such complication occurred - plaintiff's history to several treating doctors inconsistent with evidence given at much later trial - importance of admissions - trial Judge's findings overturned - (ND).

LEGISLATION CITED:

DECISION:
1. The appeal by Dr MacNeil be allowed
2. In lieu of the orders made by Murray AJ set aside the judgment in favour of Mr Bourke in the sum of $358,608 and order judgment for Dr MacNeil in the proceedings
3. Mr Bourke's appeal be dismissed
4. Mr Bourke pay Dr MacNeil's costs of the proceedings at first instance, and of the appeals and have a certificate pursuant to the Suitors Fund Act if otherwise entitled.

JUDGMENT:

114

I N D E X

Para

Introduction 3

An Analysis Of His Honour’s Reasons 15

The Histories 29

The Evidence Of Dr Fleming 34

The Evidence Of Dr Childs 52

The Evidence Of Mr Bourke 71

The Evidence Of Professor Piper 94

The Evidence Of Dr Bambach 108

The Evidence Of Professor de Carle 130

The Evidence Of Dr MacNeil 151

The Evidence Of Dr Blaxland 175

The Evidence Of Dr Yeo 187

Conclusions Thus Far 191

Evidence Of The Lay Witnesses 208

Conclusions 231

Other Issues Raised 239

Result  241

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40657 of 1998
SC 20391 of 1997
MASON P
  HEYDON JA
ROLFE AJA
Wednesday, 14 June 2000

BOURKE v MacNEIL
JUDGMENT

MASON P: I agree with Rolfe AJA.
HEYDON AJA: I agree with Rolfe AJA
ROLFE AJA:
Introduction
On 10 December 1984, the defendant, Dr Peter MacNeil, a highly qualified Specialist General Surgeon, for whom Mr A.J. Sullivan of Queen’s Counsel and Mr I.F. Butcher of Counsel appeared in this appeal, performed a Nissen Fundoplication operation on the plaintiff, Mr Stephen Gower Bourke, for whom Mr B.M.J. Toomey of Queen’s Counsel and Mr R.L. Ingram of Counsel appeared, to relieve a condition of oesophageal reflux. Mr Bourke alleged that the operation was carried out negligently in that Dr MacNeil performed a vagotomy, which was neither required nor authorised.
Mr Toomey opened the case at trial as one in which Dr MacNeil “inadvertently” performed a vagotomy in the vicinity of the vagus nerve during the fundoplication, and, as Mr Bourke continued to suffer gastric symptoms after the operation, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWCA 144
Decision Date: 14 June 2000

CaseChat Overview and Summary

This case concerned an appeal by Dr MacNeil against a judgment awarded to Mr Bourke in a medical negligence claim. Mr Bourke alleged that Dr MacNeil, a specialist general surgeon, failed to adequately warn him of a possible post-operative complication. The central dispute revolved around whether such a complication had in fact occurred and the nature of Mr Bourke's symptoms both before and after the surgery performed by Dr MacNeil.

The legal issues before the court included determining the accuracy of the trial judge's findings of fact, particularly concerning the plaintiff's pre-operative and post-operative symptoms, and whether the evidence supported the conclusion that Dr MacNeil had been negligent in failing to warn Mr Bourke of a specific post-operative complication. The court was required to assess the weight and reliability of the historical medical evidence, including the plaintiff's accounts to various treating doctors over time, and to consider how this evidence bore upon the allegations of negligence.

The appellate court allowed Dr MacNeil's appeal, overturning the trial judge's decision. The court found that the trial judge had failed to adequately consider crucial evidence regarding Mr Bourke's pre-operative condition, specifically evidence suggesting his symptoms were severe and incapacitating, which contradicted findings that he was not prevented from working. The court also noted inconsistencies in Mr Bourke's historical accounts of his symptoms to treating doctors, which undermined the basis of the original judgment. The court applied principles relating to the assessment of evidence, the importance of admissions, and the duty of a surgeon to warn of material risks.

In lieu of the original orders, the court set aside the judgment in favour of Mr Bourke and ordered judgment for Dr MacNeil. Mr Bourke's own appeal was dismissed, and he was ordered to pay Dr MacNeil's costs of the proceedings at first instance and of the appeals.

Orders

Orders of the court

1. The appeal by Dr MacNeil be allowed

2. In lieu of the orders made by Murray AJ set aside the judgment in favour of Mr Bourke in the sum of $358,608 and order judgment for Dr MacNeil in the proceedings

3. Mr Bourke's appeal be dismissed

4. Mr Bourke pay Dr MacNeil's costs of the proceedings at first instance, and of the appeals and have a certificate pursuant to the Suitors Fund Act if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Nextly, Dr MacNeil relied upon the evidence of Dr Fleming, Black Appeal Book p.85, Dr Fleming having been called in Mr Bourke’s case.The Evidence Of Dr Fleming In his evidence in chief Dr Fleming was taken through a report he prepared on 7 November 1988. He was referred, firstly, to the history of complaints he received on 15 October 1984. He had noted intermittent crampy epigastric and abdominal pain and “crampy belly ache worse over last few months, come and go”. He referred in his notes to indigestion and difficulties after drinking alcohol and to his arranging for Mr Bourke to have a Barium Meal and an ultrasound. His report continued that Mr Bourke’s condition continued to become worse. At Black Appeal Book p.83, he was asked about seeing Mr Bourke on 4 November 1985, when he noted his complaints were “nausea, vomiting and severe central chest discomfort”. He also noted:-“There was also a history of bloating, wind and crampy abdominal pains. That is the same as when first seen on 15 October 1984.” At p.84 he confirmed that his symptoms were the same as when he had first seen him on 15 October 1984, although he made no mention of “bloating” on that date. At p.85 Dr Fleming was asked about referring Mr Bourke to Dr Childs. He said he saw Mr Bourke on 12 September 1986, and he was asked whether he would have referred him for further review if he thought his condition was the same, to which he replied:-“A. His condition - I am not quite - his condition had progressively, from what I can see here since when I saw him, he had his operation on 10.12.84 and I then saw him nearly twelve months later on 4.11.85 and that was when he started to get his nausea, his vomiting and discomfort and he in fact got worse because, as you can see, he was taking increasing amounts of Tagamet trying to relieve himself so that is when I referred him for further review.”He said he referred him because he thought the condition was “deteriorating”. In cross-examination Dr Fleming agreed that in a letter he wrote to an insurer on 15 October 1987 he described a history of “constant epigastric and central chest discomfort for months prior to seeing me on October 1984”, and he confirmed that was the history he received. He also agreed that “constant” meant that the pain was present all the time and not just when Mr Bourke had drunk alcohol to excess, that the epigastric pain was constant and that if Mr Bourke had told him the pain was simply related to drinking his advice would have been to stop drinking. Dr Fleming agreed Mr Bourke’s troubles were much more complicated than that. Dr Fleming had a history on 15 October 1984 of Mr Bourke’s being a concreter and that every time he bent over the pain became worse and:-“Q. Now you have written, do you agree, ‘in view of the severe incapacitating nature of the complaint’?A. Yes.Q. Can the Court take that although he may not have used the word ‘incapacitating’ he described his problems as being so severe that they were incapacitating him?A. Yes.Q. And they were causing him serious problems with his work?A. As far as I am aware, yes.Q. And was that on the basis of what he told you?A. Yes.OBJECTIONQ. And that is on the basis of what he told you in October 1984?A. Yes, as far as I can understand, his condition didn’t greatly alter from over that period of time. That is why he had all the investigations”: Black Appeal Book p.88.Thus, there was evidence in Mr Bourke’s case that in October 1984 he was suffering in a way which caused “serious problems with his work”, evidence to which his Honour made no reference. It is evidence which significantly affects his Honour’s observation (Red Appeal Book p.17P), just before referring to the 15 October 1984 consultation with Dr Fleming, that “the plaintiff was not prevented from working as a result of these pains”. It also sits badly with Mr Bourke’s testimony, which as summarised by his Honour at Red Appeal Book p.25K, was that he “strenuously disagreed that [his discomfort] had prevented him at any time from performing his work as a concreter”. It points against the following finding of his Honour (Red Appeal Book pp.37V-38C): “I do not accept that the plaintiff’s condition was as disabling as the defendant’s counsel contends, such that he would have not tried more conservative means of relieving his condition”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Fleming said that irritable bowel problems were common in his practice and he had a lot of experience treating them, and, Black Appeal Book p.92:- “Q. Given that you took a history that the plaintiff had this abdominal pain, bloating and wind and other symptoms prior to his operation with Dr MacNeil?A. Yes.Q. You would agree he had more than an irritable bowel syndrome before the operation?A. Yes.” Dr Fleming was asked to describe the symptoms of which Mr Bourke told him. He said he had not recorded them but if there was a record of something like irritable colon or irritable bowel in the notes that meant to him:-“.. you have a crampy bowel, abdominal distension and probably alternating constipation and diarrhoea.” Dr Fleming agreed that on 24 June 1988 Mr Bourke was suffering from irritable bowel syndrome, which he treated, and, by 30 June 1988, he again thought Mr Bourke had severe irritable bowel syndrome, which he treated. He continued to treat him for that problem from 28 July 1988 and he considered that his predominant problem was irritable bowel syndrome at that time, and:-“A. But not in - 84 when he presented. He had both excessive acid symptoms as well and crampy pain whereas at this point in time he was going through a bad phase with more irritable bowel syndrome than I thought with constipation as you can see there, a lot of wind and a lot of distension and a lot of pain. I have not recorded a lot of burning and indigestion during that time.” At p.95 Dr Fleming agreed that in 1988, 1989 and 1990 Mr Bourke had far more problems from irritable bowel syndrome than from his acid problem. Dr Fleming was asked what he would have done if Mr Bourke, having undergone a fundoplication, mentioned to him in a car park that he had developed symptoms including severe bloating post-operatively. He said he would have told him to make a time and come back to see him, and if he was satisfied that the symptoms as described to him by the patient were significant, he would recommend he go back and see his surgeon. At Black Appeal Book p.101, Dr Fleming said that on 23 April 1987 he diagnosed irritable bowel syndrome and, in his report of 7 November 1988, he said that he considered Mr Bourke to have gastro-oesophageal reflux with surgery and post-operative gastric stasis with further surgery, although he agreed that in relation to these diagnoses he would defer to surgeons and gastroenterologists. In re-examination, Black Appeal Book p.102, Dr Fleming was asked about the position on 15 October 1984 in which he had referred to nausea, vomiting, severe central chest disorder, bloating, wind and cramping abdominal pain. He said Mr Bourke was distinguishing between two sets of symptoms and, at Black Appeal Book p.103, he said there was a change in Mr Bourke’s condition between the condition before and the condition after operation in that he was better after the operation. He continued that initially Mr Bourke improved:-“.. and then he came back to see me on 13 - 4/11/85 when he obviously started to go bad again.”