Child and Adolescent Health Service v Mabior
[2019] WASCA 151
•27 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHILD AND ADOLESCENT HEALTH SERVICE -v- SUNDAY JOHN MABIOR by next friend MARY KELEI [2019] WASCA 151
CORAM: QUINLAN CJ
MURPHY JA
PRITCHARD JA
HEARD: 19-20 MARCH 2019
DELIVERED : 27 SEPTEMBER 2019
FILE NO/S: CACV 21 of 2018
BETWEEN: CHILD AND ADOLESCENT HEALTH SERVICE
Appellant
AND
SUNDAY JOHN MABIOR by next friend MARY KELEI
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DERRICK DCJ
Citation: MABIOR by her Next Friend MARY KELEI -v- CHILD AND ADOLESCENT HEALTH SERVICE [2018] WADC 12
File Number : CIV 3062 of 2008
Catchwords:
Tort - Negligence - Medical negligence - Allegation of failure of doctors to recognise that patient had sepsis - Whether patient was suffering from sepsis - Challenge to findings of fact - Advantages of trial judge - Whether adequate reasons for findings of fact
Negligence - Breach of duty of care - Standard of care for health professionals - Whether act or omission in accordance with a practice widely accepted by peers as competent professional practice - Requirement for evidence of a practice
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5PB
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr G R Donaldson SC |
| Respondent | : | Mr T Lampropoulos SC |
Solicitors:
| Appellant | : | Panetta Mcgrath Lawyers |
| Respondent | : | Maurice Blackburn |
Case(s) referred to in decision(s):
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Brett v Rees [2009] WASCA 159
Browne v Dunne (1894) 6 R 67
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Christos v Curtin University of Technology [2017] WASCA 110
Davids Holdings Pty Ltd v Attorney-General (Cth) (1994) 49 FCR 211
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
DRA Industries Pty Ltd v Kuredale Pty Ltd [2018] WASCA 17
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392
Lee v Lee [2019] HCA 28
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McKenna v New England & Hunter Local Health District [2013] NSWCA 476
New England & Hunter Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270
Smart v Power [2019] WASCA 106
South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513
Sparks v Hobson [2018] NSWCA 29; (2018) 361 ALR 115
Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Western Australia v Watson [1990] WAR 248
Wyong Shire Council v Shirt [1980] HCA 12
X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26
Table of Contents
Introduction
The appeal in overview
Background
The course of the respondent's condition
The expert evidence
Dr Andrew Numa
Professor Alison Kesson
Dr Jeffrey Prebble
Dr Hugh Allen
Associate Professor Mike Starr
Professor Roy Kimble
Associate Professor John Harvey
Findings and reasons of the trial judge
Reasons as to whether the respondent had sepsis
Reasons as to breach of duty of care
Grounds of appeal
Grounds 1 to 11 - challenge to the finding of fact that the respondent had sepsis
Ground 1 - The relevance of the extent of the respondent's burns
Ground 2 - The absence of reported cases of ARDS in the absence of sepsis
Ground 3 - Experts best qualified to given an opinion on sepsis
Ground 4 - Assessment of the evidence of Dr Numa
Ground 5 - The case report relied upon by Professor Harvey
Ground 6 - Enterobacter and cytokines
Ground 7 - The clinical signs of sepsis
Elevated temperature
C-reactive protein
Neutropenia
Ground 9 - The relevance of the post antibiotic neutrophil count
Ground 10 - The timing of bacterial infection
Ground 11 - The sepsis finding
Grounds 12 to 16 - breach of duty and s 5PB of the Civil Liability Act
Section 5PB - legislative history
Section 5PB - preliminary matters
Ground 12 - 'a practice' vs 'practice'
Ground 13 - were Dr Numa and Professor Kesson relevantly 'peers'?
Ground 14 - application of s 5PB
Ground 15 - finding of breach at 3.00 am on 11 December 2005
Ground 16 - challenge to the critical finding of fact on breach
Notice of contention
Conclusion
JUDGMENT OF THE COURT:
Introduction
On 2 February 2018, Derrick DCJ (as his Honour then was) ordered that judgment be entered for Sunday John Mabior (the respondent) against the Child and Adolescent Health Services (the appellant) with damages to be assessed.[1] Judgment was entered in respect of serious injuries suffered by the respondent while she was a patient at Princess Margaret Hospital (the Hospital) in December 2005.
[1] Mabior v Child and Adolescent Health Service [2018] WADC 12 (Primary reasons). The Primary reasons, at [74] to [95] contain a glossary of relevant medical terms. Unless otherwise stated, those definitions have been used in these reasons.
The respondent, who was 16 months of age at the time, was being treated at the Hospital as a result of having suffered superficial and partial thickness burns to approximately 18% of her total body surface area (TBSA).[2] The injuries in relation to which the respondent sued the Hospital were a consequence of her having developed Acute Respiratory Distress Syndrome (ARDS). ARDS is an acute, diffuse and inflammatory lung injury that can lead to hypoxia. The ARDS in turn caused the respondent to suffer cardiac arrest, multi-organ failure, brain damage and cerebral palsy.[3]
[2] Primary reasons [9].
[3] Primary reasons [61].
The appellant is the legal entity responsible for medical and nursing care provided by the Hospital, including the team of doctors responsible for the care of the respondent while she was in the burns ward at the Hospital from 9 to 11 December 2005.
The learned trial judge found that the respondent's injuries were caused by the negligence of the doctors in the burns ward responsible for the care of the respondent. His Honour was satisfied on the balance of probabilities that, but for the negligence of those doctors, the respondent would not have developed ARDS, to the extent that she did, and consequently would not have suffered the injuries.[4]
[4] Primary reasons [844].
The appellant appeals the learned trial judge's decision.
The appeal in overview
The appellant's amended grounds of appeal include 16 individual grounds of appeal. One of those grounds (ground 8) was not pursued at the hearing of the appeal.
The grounds of appeal relate to two broad issues.
First, a number of the grounds (grounds 1 to 11) are directed at challenging a critical finding of fact made by the learned trial judge; namely, that by the evening of 10 December 2005 the respondent had sepsis and that her sepsis continued to evolve up until the time she was transferred to, and treated in, the Intensive Care Unit (ICU) at the Hospital.[5]
[5] Primary reasons [667].
The significance of that finding of fact arises in this way: the respondent's case at trial was that the cause of the respondent's ARDS was Systemic Inflammatory Response Syndrome (SIRS) in the presence of sepsis. Sepsis is a serious complication of, and a systemic response to, the presence of infection. SIRS is an inflammatory response of the body that can, relevantly, be caused by infection or sterile burns (or both). ARDS is a condition that can be caused by sepsis, but can also be caused by SIRS (as a result of burns), with or without the presence of sepsis.
There was no contest at trial that the respondent developed both SIRS and ARDS. The contest was whether she developed those conditions solely by reason of her burns or whether they were also the result of her having sepsis (ie. a serious complication of, and systemic response to, the presence of infection).
If, as the respondent contended, she had sepsis by the evening of 10 December 2005, she could, on the respondent's case, have been treated with antibiotics, so as to potentially avoid her developing ARDS.
If, however, the respondent did not have sepsis, and the cause of her SIRS and ARDS was (as the appellant contended at trial) solely due to the respondent's burns, the administration of antibiotics could have made no difference to her condition.
Accordingly, whether the respondent in fact had sepsis was, as the case was fought, a necessary finding for the respondent to succeed at trial. In detailed reasons, the learned trial judge identified thirteen matters that, in combination, persuaded him, to the required standard, that the respondent in fact had sepsis by the evening of 10 December 2005 (the sepsis finding). Grounds 1 to 11 challenge that ultimate finding and many of the individual matters that led to that finding.
The second broad issue, raised by grounds 12 to 16, concerns the learned trial judge's finding that the appellant was in breach of its duty of care to the respondent. The relevant breach was, in summary, the failure of the doctors treating the respondent to recognise, by around 2.00 am on 11 December 2005, the possibility that the respondent had sepsis and by failing to administer antibiotics as quickly as was reasonably possible.[6]
[6] Primary reasons [804].
The principal focus of the appellant's case in relation to these grounds concerns the proper construction, and application, of s 5PB(1) of the Civil Liability Act 2002 (WA) (Civil Liability Act). Section 5PB(1) provides that:
An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice.
Aside from the challenge to the sepsis finding itself, there is no appeal from the learned trial judge's finding that the negligence found by him, relevantly, 'caused' the respondent's ARDS and injuries, within the meaning of s 5C of the Civil Liability Act. In that regard, the learned trial judge found that but for the failure by the doctors to administer antibiotics to the respondent, she would not have developed ARDS to the extent that she did and consequently would not have suffered the injuries.[7] Underpinning that finding, of course, is the finding that the respondent had sepsis and that it was negligent not to have administered antibiotics, both of which are challenged by the grounds of appeal.
[7] Primary reasons [844].
For the reasons set out below, none of the grounds of appeal have merit and the appeal must be dismissed.
Before turning to the grounds of appeal, it is necessary to set out, in some detail, the relevant background, including the learned trial judge's reasons for the critical findings challenged by the appellant.
Background
The course of the respondent's condition
The learned trial judge set out the non-contentious factual background at [3] to [56] of the Primary reasons.
The relevant timeline can be summarised as follows:
Date Time Event 9/12/2005 1700 hrs The respondent suffers hot water scald burns to chest, forearms, and proximal regions of both hands and knees.[8] 1820 hrs The respondent arrives at the Hospital.[9] 1900 hrs The respondent is seen by a surgery burns registrar in the emergency department.
Registrar assesses superficial and partial thickness burns to approximately 18% of the respondent's total body surface area.
Temperature: 36.9º C.
Heart rate: 190 beats per minute (bpm).
Respiratory rate: 50 breaths per minute.
The respondent is put on oxygen therapy. Her lungs were clear.[10]
2040 hrs The respondent is admitted to the Hospital's burns ward.
Temperature: 36.6º C.
Heart rate: 144 bpm.
Respiratory rate: 28.
The respondent is taken off oxygen therapy.[11]
2050 hrs Swabs taken from the respondent's chest, left and right knee burns and a screen for Multi Resistant Staphylococcus Aureus (MRSA) conducted.
All swabs and MRSA screen came back negative, save for right knee swab.
Right knee swab produced positive result for Enterobacter bacteria with '+++ growth'.[12]
2105 hrs Blood samples are taken from the respondent to ascertain full blood picture (FBP).[13]
White cell count: 10.7.
Neutrophil count: 6.0.
Neutrophils showed 'left shift with toxic changes'.
The respondent's burns are dressed with silver sulfadiazine cream.[14]10/12/2005 0800 hrs Temperature: 38.6º C.
Heart rate: 182 bpm.
Respiratory rate: 40.
Oxygen saturation: 95%.
The respondent is put on oxygen therapy.[15]
0820 hrs Temperature: 39.4º C.[16] 0900 hrs Temperature: 39.3º C.
Heart rate: 178 bpm.
Respiratory rate: 36.
Oxygen saturation: 100%.[17]
0900 - 2100 hrs Heart rate: 157 - 197 bpm.
Respiratory rate: 22 - 38.
Oxygen saturation: 89 - 99%.[18]1000 hrs Temperature: 39.4º C.[19] 1000 - 2100 hrs Temperature: 36.7 - 38.8º C.[20] 1825 hrs Blood samples are taken from the respondent - C-reactive protein level (CRP) was 108 mg/L.[21] 2100 hrs Chest X-ray of the respondent is performed. X-ray reveals mild patchy change in right lung base medially. Lungs otherwise 'well expanded and essentially clear'.[22] 2200 hrs Blood samples are taken from the respondent
White cell count: 4.9
Neutrophil count: 0.7.[23]
Haematology report notes 'mild neutropenia'.[24]
The respondent remains on oxygen therapy.[25]
11/12/2005 0800 hrs Temperature: 38.4º C.
Heart rate: 178 bpm.
Respiratory rate: 34.
Oxygen saturation: 98%.
The respondent remains on oxygen therapy.[26]
0900 hrs The respondent receives a burns bath and her wounds are dressed.[27] 1100 hrs Heart rate: 182 - 192 bpm.
Respiratory rate: 40.
Oxygen saturation: 84 - 95%.[28]
1200 hrs Oxygen saturation: 72 - 92%.[29] 1300 - 2100 hrs Heart rate: 167 - 192 bpm.
Respiratory rate: 32 - 74.
Oxygen saturation: 89 - 100%.[30]
1600 hrs Temperature: 37.8º C.[31] 1755 hrs The respondent receives Frusemide (a diuretic).[32] 1800 hrs The respondent is noted to have crepitation (crackling sounds) at base of both lungs.[33] 2000 hrs Temperature: 37.1º C.[34] 2030 hrs Chest X-ray of the respondent is performed. X-ray reveals widespread patchy areas of alveolar consolidation in both lungs, particularly left lung.[35] 2055 hrs The respondent receives Frusemide.[36] 2145 hrs The respondent is admitted to the Hospital's paediatric intensive care unit (ICU).[37] 2200 hrs Temperature: 37.8º C.
Heart rate: 187 bpm.
Respiratory rate: 42.
Oxygen saturation: 95%.
The respondent remains on oxygen therapy.[38]
2300 hrs Heart rate: 187 bpm.
Respiratory rate: 48.
Oxygen saturation: 85 %.
The respondent remains on oxygen therapy.[39]
2315 hrs Blood samples are taken from the respondent for FBP and culturing.
White cell count: 1.3.
Neutrophil count: 0.1.
CRP level: 242 mg/L.
Blood culture negative for bacteria.[40]
2400 hrs The respondent is intubated. 12/12/2005 0100 hrs The respondent is administered Ceftriaxone (a broad‑spectrum antibiotic).[41] 0200 hrs The respondent is placed on a ventilator.[42] 0300 hrs The respondent is administered Gentamicin (a broad‑spectrum antibiotic).[43] 0500 hrs The respondent receives blood infusion of packed red cells.[44] 0600 hrs The respondent is administered Vancomycin (a broad‑spectrum antibiotic).[45] 0800 hrs The respondent is administered Meropenem (a broad‑spectrum antibiotic).[46] 0900 hrs Oxygen saturation: 33%.[47] 1100 hrs Oxygen saturation: 68%.
The respondent goes into cardiac arrest and is resuscitated.[48]
1330 hrs The respondent goes into cardiac arrest and is resuscitated.[49]
The respondent develops multi-organ failure and brain damage secondary to hypoxia (lack of oxygen to bodily tissues).[50]
1430 hrs Blood samples are taken from the respondent for FBP.
White cell count: 6.3.
Neutrophil count: 0.5.[51]
1830 hrs Blood samples are taken from the respondent for FBP.
White cell count: 12.6.
Neutrophil count: 1.6.
Neutrophils showed a left shift with marked toxic changes.[52]
13/12/2005 Samples are taken from the respondent's peritoneal fluid, post-nasal aspirate, tracheal aspirate, pleural fluid and endotracheal aspirate and tested for bacteria.[53] Prior to 0900 hrs Blood samples taken for FBP analysis.
White cell count: 8.5.
Neutrophil count: 2.0.[54]1045 hrs Swabs are taken from the respondent's burn wounds to right and left arm, right and left leg, chest and left knee.
Culturing of all swabs produced negative results for bacteria.
Blood cultures produced negative results for bacteria.[55]
29/12/2005 The respondent is extubated and transferred to the Hospital's rehabilitation ward.[56] [8] Primary reasons [6].
[9] Primary reasons [8].
[10] Primary reasons [9].
[11] Primary reasons [10] - [12].
[12] Primary reasons [13] - [15].
[13] All FBP results would have been available to medical staff within hours of the sample taken: Primary reasons [16].
[14] Primary reasons [16] - [17].
[15] Primary reasons [19].
[16] Primary reasons [20].
[17] Primary reasons [21].
[18] Primary reasons [24].
[19] Primary reasons [22].
[20] Primary reasons [23].
[21] Primary reasons [26].
[22] Primary reasons [27].
[23] Primary reasons [28].
[24] Primary reasons [28].
[25] Primary reasons [29].
[26] Primary reasons [30].
[27] Primary reasons [31].
[28] Primary reasons [33].
[29] Primary reasons [33].
[30] Primary reasons [34].
[31] Primary reasons [34].
[32] Primary reasons [35].
[33] Primary reasons [36].
[34] Primary reasons [34].
[35] Primary reasons [37].
[36] Primary reasons [35]
[37] Primary reasons [38].
[38] Primary reasons [40].
[39] Primary reasons [41].
[40] Primary reasons [42].
[41] Primary reasons [45].
[42] Primary reasons [44].
[43] Primary reasons [45].
[44] Primary reasons [46].
[45] Primary reasons [45].
[46] Primary reasons [45].
[47] Primary reasons [44].
[48] Primary reasons [47].
[49] Primary reasons [48].
[50] Primary reasons [49].
[51] Primary reasons [50].
[52] Primary reasons [51].
[53] Primary reasons [52].
[54] Primary reasons [53].
[55] Primary reasons [54] - [55].
[56] Primary reasons [56].
The expert evidence
Leaving aside (for the moment) the legal issues arising under s 5PB of the Civil Liability Act, the findings of the learned trial judge challenged by the appellant largely turned upon his Honour's assessment of the expert evidence. The expert evidence was critical to the determination both as to whether the respondent had sepsis by the evening of 10 December 2005 and in relation to whether the appellant was in breach of its duty of care.
The respondent called the following expert witnesses:
(a)Dr Andrew Numa, an intensive care and paediatric respiratory physician;
(b)Professor Alison Kesson, a paediatric infectious diseases physician; and
(c)Professor Michael Ditchfield, a paediatric radiologist.
The appellant called the following expert witnesses:
(a)Dr Jeffrey Prebble, a consultant paediatrician;
(b)Dr Hugh Allen, a respiratory and general paediatrician;
(c)Associate Professor Mike Starr, a consultant paediatrician, infectious diseases physician and consultant in emergency medicine;
(d)Professor Roy Kimble, a paediatric surgeon;
(e)Associate Professor John Harvey, a general, thoracic and burns paediatric surgeon;
(f)Dr Fiona Bettenay, a consultant radiologist; and
(g)Dr Conor Murray, a paediatric cardiothoracic and general radiologist.
It will be necessary to refer in detail to parts of the experts' evidence in the context of the grounds of appeal. For present purposes, it is sufficient to summarise the effect of their evidence by reference to their written reports. [57]
Dr Andrew Numa
[57] The radiological evidence did not feature in the issues raised in the appeal, nor were the reports of the radiologists (Professor Ditchfield, Dr Bettenay and Dr Murray) in the appeal books. The evidence of those witnesses is, accordingly, not included in the summary that follows.
Dr Numa provided three expert reports prior to trial, dated 5 November 2016,[58] 26 December 2016[59] and 27 July 2017[60] respectively.
[58] Exhibit 19.4; GAB 585 - 626.
[59] Exhibit 19.6; GAB 627 - 661.
[60] Exhibit 19.8; GAB 662 - 716.
Dr Numa's opinion was that the deterioration in the respondent's condition from 7.00 pm on 9 December 2005 to 9.30 pm on 11 December 2005 was almost certainly related to either sepsis or toxic shock syndrome. He was of the opinion that the former diagnosis (sepsis) was more likely, by a significant margin, as an organism was identified on one of the wound swabs taken from the respondent soon after her admission to the Hospital (the organism being 'Enterobacter species +++ growth').[61]
[61] Exhibit 19.4; GAB 585; Primary reasons [110].
Dr Numa's report of 5 November 2016 identified and discussed a variety of evidence in support of that opinion, including several significant spikes of temperature over the first 48 hours, persistent tachycardia, elevated inflammatory markers (elevated C-reactive protein), evolving neutropenia, evolving respiratory distress, a requirement for oxygen, and subsequent progression to multi-organ failure including circulatory collapse and ARDS in the ICU.[62]
[62] Exhibit 19.4; GAB 586 - 588; Primary reasons [111].
Two particular matters in Dr Numa's opinion require further explanation.
First, his reference to evolving neutropenia. This is a reference to low neutrophil counts (neutrophils being a sub-set of white blood cells). Dr Numa stated that 'Low neutrophil counts (neutropenia) are a hallmark of sepsis' and that 'neutropenia is highly correlated with sepsis (but not burns alone) in animal models as well as adult and paediatric case series', in support of which he cited a number of publications.[63]
[63] Exhibit 19.4; GAB 587; Primary reasons [118].
Secondly, in a passage particularly relevant to a number of the grounds of appeal, Dr Numa expressed a view as to the improbability of a patient developing ARDS as a result of burns alone (i.e. in the absence of sepsis), with burns to the extent suffered by the respondent (18% TBSA). In this regard, Dr Numa stated: [64]
[T]he risk for ARDS is closely related to the area and severity of burns and in the case of [the respondent], described as having 12% to 18% superficial and partial thickness (i.e. no full thickness), the probability of ARDS developing purely as a response to the tissue injury alone is vanishingly small. In a recent series, burns patients who developed ARDS had substantially more full thickness burn area than patients who did not develop ARDS (median 20.5% full thickness burn area in ARDS patients vs median 7% full thickness burn area in non-ARDS patients). Similarly, the total burn area was significantly larger in patients developing ARDS … In this case where the plaintiff had no full thickness burns and burns to no more than 18% of her TBSA, ARDS is unlikely to have developed as a result of the burn itself. (citations omitted)
[64] Exhibit 19.4; GAB 588; Primary reasons [120].
Dr Numa returned to this opinion in his subsequent report of 26 December 2016, which responded to opinions expressed by Dr Prebble, Professor Kimble and Professor Harvey.
In relation to the suggestion that the respondent's burns alone may have caused her developing ARDS, Dr Numa repeated that this was not supported by the literature. He stated that he not been able to find any case reports of ARDS secondary to burns of the nature and area suffered by the respondent, unless accompanied by sepsis. He concluded that the balance of probabilities overwhelmingly favoured sepsis as the cause of the respondent's ARDS rather than the burns per se.[65]
[65] Exhibit 19.6; GAB 629-630; Primary reasons [123].
He again referred to the 'quite striking neutropenia' as proving strong evidence for sepsis and noted that none of the other experts had addressed the heavy growth of Enterobacter.[66] Dr Numa reiterated the various evidence he identified for infection, adding an additional factor: the respondent's severe coagulopathy on her admission to the ICU, which he described as a common finding in severe sepsis. [67]
[66] Exhibit 19.6; GAB 630; Primary reasons [124] - [125].
[67] Exhibit 19.6; GAB 630-631; Primary reasons [126].
In that report Dr Numa expressed the view that it was 'beyond any doubt' that the respondent's deterioration was related to sepsis. [68]
[68] Exhibit 19.6; GAB 631; Primary reasons [127].
Dr Numa's final report, dated 27 July 2017, responded to reports from a number of the other experts. He adhered to his view as to the cause of the respondent's ARDS, which he stated was never a primary problem but was always secondary to some triggering disease or insult, for which, in the paediatric population, the most common cause was infection. [69]
[69] Exhibit 19.8; GAB 662; Primary reasons [131].
In relation to the treatment provided by the Hospital (i.e. beyond the question of whether the respondent's ARDS was caused by sepsis), Dr Numa expressed the opinion that the constellation of signs and symptoms present over 10 to 11 December 2005 should have been sufficient to trigger a clinical concern of sepsis and that on the evening of 10 December 2005 (or at the very latest the morning of 11 December 2005), a prudent physician would have obtained blood cultures and commenced antibiotic therapy.[70]
[70] Exhibit 19.4; GAB 588-589; Primary reasons [720] - [721].
Dr Numa agreed with Professor Starr that prophylactic antibiotics should not be given to every burns patient but should be reserved for cases where there is a suspected or proven infection. Dr Numa believed that the respondent's was such a case. [71]
[71] Exhibit 19.8; GAB 663; Primary reasons [728].
Dr Numa stated that the key issue was: at what stage did that the diagnosis of sepsis become sufficiently likely to warrant commencement of antibiotics; at the time of the precipitous collapse that culminated in the ICU admission, or earlier? He believed that there were enough symptoms and signs to justify commencement of antibiotics at an earlier stage. [72]
Professor Alison Kesson
[72] Exhibit 19.8; GAB 663; Primary reasons [727].
Professor Kesson provided two expert reports prior to trial, dated 25 January 2017[73] and 21 July 2017[74].
[73] Exhibit 9.2; GAB 353 - 371.
[74] Exhibit 10.3; GAB; Primary reasons [217] - [220].
Professor Kesson's opinion was that the respondent's vital signs on 10 December 2008 (particularly her temperature and pulse rate) suggested clinical sepsis. She considered that the respondent's full blood count (showing 'Marked neutropenia. Moderate leucopaenia') was a very strong indication of overwhelming sepsis.[75]
[75] Exhibit 9.2; GAB 354; Primary reasons [212] - [215].
Professor Kesson confirmed these views in her subsequent report. She stated that, individually, the observations of the respondent's temperature, heart rate and respiration could have a multitude of causes, but taken together with the burn injury had a very strong positive predictive value for sepsis.[76]
[76] Exhibit 10.3; GAB 383; Primary reasons [220].
In relation to the treatment provided by the Hospital, Professor Kesson expressed the opinion that a two-hour delay between prescribing antibiotics and administering antibiotics to a patient with a high risk of having sepsis, a life-threatening condition, was in 2005, and still is, unacceptable and poor medical care. She said that, as sepsis is a life-threatening condition, any delay in the administration of antibiotics increases the risks of morbidity (injury to tissues and organs) and mortality. When a patient is considered septic, antibiotics should be administered immediately and without delay.[77]
[77] Exhibit 10.3; GAB 382; Primary reasons [738].
In her second report Professor Kesson also drew the distinction, referred to by the learned trial judge,[78] between sepsis and septicaemia (a distinction that was not consistently observed in some of the evidence). 'Sepsis', Professor Kesson said, was a clinical syndrome caused by infection where the patient is hyperthermic (body temperature above normal) or hypothermic (body temperature below normal) and has tachycardia (fast heart rate), tachypnoea (fast breathing rate), together with a high neutrophil count (neutrophilia) or a low neutrophil count (neutropenia). 'Septicaemia', on the other hand, was the presence of replicating bacteria or their products in the bloodstream itself with a systemic response and evidence of altered organ function.
[78] Primary reasons [86] - [91].
There was no suggestion in the present case that the respondent had septicaemia, as so defined.[79]
Dr Jeffrey Prebble
[79] Primary reasons [238], [300]. As the learned trial judge noted, however, at least Professor Harvey used the terms 'sepsis' and 'septicaemia' interchangeably (Primary reasons [91], [552]).
Dr Prebble provided four reports prior to trial, dated 5 May 2010,[80] 18 May 2010,[81] 20 February 2016[82] and an undated report prepared in August 2017.[83]
[80] Exhibit 3; GAB 24 - 28.
[81] Exhibit 4; GAB 2 9- 31. This report was substantially concerned with whether the respondent had fluid overload, an allegation that was abandoned prior to trial (Primary reasons [66]).
[82] Exhibit 5; GAB 32 - 40. This report was also substantially concerned with the abandoned allegation that the respondent had fluid overload.
[83] Exhibit 6; GAB 41 - 71.
Dr Prebble stated that, under most circumstances, the respondent's burns would not have been life threatening. He said that she was most unfortunate to develop ARDS which, although a recognised complication of burns of her severity, was more commonly associated with more extensive burns. [84]
[84] Exhibit 3; GAB 25; Primary reasons [298].
Dr Prebble stated that the cause of the respondent's hypoxia (lack of oxygen reaching the tissues) was ARDS. ARDS usually develops within 72 hours of the initial illness. ARDS can be associated with sepsis, but in the case of the respondent, he said, septic screens were always negative. Dr Prebble said that ARDS was more usual in more extensive burns, but certainly had been associated with burns of similar severity to the respondent's. [85]
[85] Exhibit 3; GAB 25; Primary reasons [299].
Dr Prebble returned to the question of whether the respondent had sepsis in his August 2017 report. He stated that sepsis is 'SIRS + documented infection site' and that in the respondent's case there was no documented infection site. Dr Prebble observed that the blood culture performed on the blood sample obtained on 11 December 2005 showed no growth, that the pleural fluid sample obtained on 12 December 2005 showed no growth, that the peritoneal fluid sample obtained on 13 December 2005 showed no growth and that endotracheal tube aspirate obtained on 13 December 2005 showed no growth. [86]
[86] Exhibit 6; GAB 42; Primary reasons [307].
Dr Prebble stated that Enterobacter (from the skin swab taken from the respondent's right knee) was a skin contaminant not an infection. He stated that, while it is acknowledged that negative results can uncommonly occur in overwhelming sepsis, 'there still remains no proof' of sepsis as the cause of the respondent's collapse. [87]
[87] Exhibit 6; GAB 42; Primary reasons [307].
Finally, Dr Prebble remarked on Dr Numa's opinion that the probability of ARDS developing purely as a response to the tissue injury alone was 'vanishingly small' (see [30] above). Dr Prebble stated that while it was true that ARDS is seen more frequently in larger surface area burns, there were several reports of ARDS in burns to less than 20% of the TBSA. [88]
Dr Hugh Allen
[88] Exhibit 6; GAB 41; Primary reasons [306]
Dr Allen provided four reports prior to trial, dated 15 July 2010,[89] 9 May 2016,[90] 18 October 2016[91] and 26 April 2017.[92]
[89] Exhibit 13.2; GAB 407 - 415.
[90] Exhibit 13.3; GAB 416 - 447.
[91] Exhibit 13.4; GAB 448 - 472.
[92] Exhibit 13.5; GAB 473 - 476.
Dr Allen found, in his report dated 15 July 2010, that the measurement of the respondent's burns (18%) was accurate and, therefore, large.[93] As such, the extent of the burns to the respondent meant that there were irreversible local thermal injuries and a systemic response.[94] In relation to the respondent's diagnosis of ARDS, he found that the 'large burn and the metabolic response to it caused the ARDS'.[95]
[93] Exhibit 13.2; GAB 410.
[94] Primary reasons [357] - [359].
[95] Exhibit 13.2; GAB 412; Primary reasons [361].
In his report dated 9 May 2016, Dr Allen stated that the greater the percentage of the burn, the greater the risk of ARDS and infection, including pneumonia, and that these outcomes do occur in burns of 15% or more.[96] He found that, while there may have been pulmonary oedema, there was also ARDS, and possible infection, complicating the respondent's pulmonary conditions.[97]
[96] Exhibit 13.3; GAB 419; Primary reasons [362].
[97] Exhibit 13.3; GAB 419; Primary reasons [362].
In his report of 18 October 2016, Dr Allen expressed the opinion that the respondent's system failure occurred in the time frame consistent with ARDS.[98] There was biochemical evidence of increasing CRP, which suggested 'a massive inflammatory response suggestive of ARDS'.[99] Dr Allen observed that the radiology reports confirmed that the most likely diagnosis was ARDS, not pulmonary oedema.[100] He remarked that, on the basis of the clinical progress, the respondent suffered from ARDS, which was supported by the multi-organ failure that occurred.[101]
[98] Exhibit 13.4; GAB 449; Primary reasons [365].
[99] Exhibit 13.4; GAB 450; Primary reasons [365].
[100] Exhibit 13.4; GAB 450.
[101] Exhibit 13.4; GAB 450; Primary reasons [368].
Dr Allen's final report of 26 April 2017, considered expert witness medical reports prepared by Dr Numa and Professor Kesson.[102]
[102] Exhibit 13.5; GAB 473; Primary reasons [369].
In relation to Professor Kesson's report, Dr Allen found that in retrospect, while administering antibiotics earlier may have made a difference (as suggested by Professor Kesson), equally it may not have altered the outcome.[103]
[103] Exhibit 13.5; GAB 474.
Dr Allen's preferred explanation for whether the failure to treat the infection caused septic shock (and in turn the acquired brain injury), was that the hypoxic brain injury was caused by the septic shock and may have been alleviated by earlier administering of antibiotics.[104] He agreed with Professor Kesson's recognition that the blood cultures taken produced negative results, and that there are commonly false negative results in blood cultures.[105]
[104] Exhibit 13.5; GAB 475.
[105] Exhibit 13.5; GAB 475; Primary reasons [370].
Dr Allen identified the other experts' reports as identifying an 'inflammatory cytokine cascade-like response' being the cause of the respondent's deterioration, in relation to which he agreed that there is no doubt that infection can cause such a deterioration.[106] Dr Allen surmised that the medical and nursing staff believed that the respondent's tachycardia and tachypnoea were caused by the activation of the inflammatory cascade, not by impending septicaemia. In the context of the inflammatory cascade, Dr Allen recognised that the blood cultures did not grow a pathogenic bacteria, and while there are false negatives, in severe sepsis one would expect to find a pathogen.[107]
Associate Professor Mike Starr
[106] Exhibit 13.5; GAB 475.
[107] Exhibit 13.5; GAB 476; Primary reasons [370].
Professor Starr wrote a report dated 25 June 2017[108] which referenced four articles, including some referred to by Dr Prebble.
[108] Exhibit 12; GAB 393 - 398.
Professor Starr considered that the respondent's primary problem may have been neither sepsis nor fluid overload, but rather ARDS.[109] While fever, tachycardia and raised inflammatory markers are 'almost universal in burns patients', and can be signs consistent with infection, Professor Starr found those signs to also be consistent with an inflammatory response to significant burns with associated ARDS.[110]
[109] Exhibit 12; GAB 394.
[110] Exhibit 12; GAB 395; Primary reasons [403].
Professor Starr did not agree with Professor Kesson that the respondent most likely had overwhelming sepsis.[111] Given the respondent's presentation, Professor Starr found sepsis to be a possible complication,[112] however, not the primary problem.
Professor Roy Kimble
[111] Exhibit 12; GAB 397; Primary reasons [404].
[112] Exhibit 12; GAB 397.
Professor Kimble prepared two reports dated 28 October 2016[113] and 2 June 2017.[114]
[113] Exhibit 16.2; GAB 574 - 556.
[114] Exhibit 16.3; GAB 577.
Professor Kimble found the respondent's percent body surface burn to be 19%, but that the initial assessment of 18% was very accurate.[115] It was his opinion that the respondent had a systemic inflammatory response to her burns, possibly with a concurrent infection (early high fever within the first 24 hours of her burn injury).[116]
[115] Exhibit 16.3; GAB 574; Primary reasons [453].
[116] Exhibit 16.3; GAB 575; Primary reasons [455].
Upon reading the reports of Dr Numa and Professor Kesson, Professor Kimble prepared a short second report dated 2 June 2017, where he confirmed that neither experts' report altered his original statement,[117] and that he was in complete agreement with Professor Harvey.
[117] Exhibit 16.3; GAB 577.
Professor Kimble was of the opinion that the burn was a mixture of superficial partial thickness and deep dermal burns, and that the depth and size of the burn in a child of the respondent's age, frequently leads to a systemic inflammatory response which can result in ARDS.[118] He stated that he had witnessed many similar scenarios in small children with moderate size burns where they had developed similar severe systemic inflammatory responses resulting in ARDS.[119]
Associate Professor John Harvey
[118] Exhibit 16.3; GAB 577; Primary reasons [458].
[119] Exhibit 16.3; GAB 577; Primary reasons [458].
Professor Harvey prepared four reports dated 13 April 2015,[120] 9 September 2015,[121] 23 March 2016,[122] and 27 April 2017.[123]
[120] Exhibit 21.2; GAB 723 - 728.
[121] Exhibit 21.3; GAB 729.
[122] Exhibit 21.4; GAB 730 - 731.
[123] Exhibit 21.5; GAB 732 - 737.
In his 13 April 2015 report, he supported the finding that the respondent suffered an 18% burn to her TBSA.[124] As Professor Harvey found no evidence that the respondent was given excess fluid,[125] he was of the opinion that acute respiratory deterioration occurred after the bath of the respondent on 12 December 2015, which was most likely due to rapid progression of an unusually severe systemic inflammatory response which led to ARDS.[126]
[124] Exhibit 21.2; GAB 723; Primary reasons [504].
[125] Exhibit 21.2; GAB 725, 726.
[126] Exhibit 21.2; GAB 726 - 727; Primary reasons [506].
In his report dated 23 March 2016, Professor Harvey confirmed his original opinion that there was no evidence that too much fluid was given to the respondent to cause fluid overload,[127] and that the rapid progression of the respiratory distress and pulmonary oedema, despite proper management, predominately reflected the unusual severity of the SIRS in the respondent.[128]
[127] Exhibit 21.4; GAB 731; Primary reasons [512].
[128] Exhibit 21.4; GAB 731; Primary reasons [512].
Professor Harvey's fourth report was a response to the reports of Dr Numa.[129] He found that the respondent did not deteriorate over the first 48 hours.[130] Such deterioration was related to signs of respiratory distress with basal lung crepitations, suggestive of pulmonary oedema. The differential diagnosis was sepsis/ARDS.[131]
[129] Exhibit 21.5; GAB 732.
[130] Exhibit 21.5; GAB 732; Primary reasons [514].
[131] Exhibit 21.5; GAB 732; Primary reasons [514].
At the time of admission to PICU, Professor Harvey was of the opinion that there was no absolute evidence of sepsis. While the elevation of CRP and neutropenia may represent sepsis, in the setting of burns Professor Harvey stated that there was no evidence from the literature that either of those parameters were specific to sepsis, rather than the SIRS associated with burns.[132]
[132] Exhibit 21.5; GAB 732; Primary reasons [515].
After reviewing the evidence relating to sepsis, Professor Harvey found that there was not 'good evidence' to invoke sepsis as a cause of the respondent's deterioration, in the face of 'repeated clinical evidence of a respiratory basis for her deterioration'.[133] He then turned to the evidence of the respondent's respiratory distress and outlined that, as diuretics had failed to resolve it, her deterioration was likely related to an evolving ARDS.[134] Further, he stated that while ARDS is more common in major burns and associated with inhalation injury, it may occur in more minor burns (20%), although the exact incidence is unknown.[135]
[133] Exhibit 21.5; GAB 732; Primary reasons [516].
[134] Exhibit 21.5; GAB 732; Primary reasons [517].
[135] Exhibit 21.5; GAB 732; Primary reasons [518].
Professor Harvey stated that in retrospect it is likely that ARDS was the cause of the respondent's deterioration. Finally, he stated that while ARDS may be exacerbated by the presence of sepsis and antibiotics may have benefited the respondent, there was no evidence at the time of infection nor of signs that would lead clinicians to start antibiotic treatment before 11 December 2005.[136]
[136] Exhibit 21.5; GAB 733; Primary reasons [519].
Findings and reasons of the trial judge
The learned trial judge structured his reasons in the following way:
(a)first his Honour addressed the question as to whether the respondent in fact had sepsis on 10 December 2005 or thereafter;[137]
(b)secondly, having concluded that the respondent did have sepsis by the evening of 10 December 2005, his Honour considered whether the appellant was in breach of its duty of care in failing to detect and treat the sepsis with antibiotics;[138] and
(c)finally, his Honour addressed whether the breach of the duty of care caused the respondent's injuries.[139]
[137] Primary reasons [96] - [696].
[138] Primary reasons [697] - [805].
[139] Primary reasons [806] - [845].
In relation to each of these issues, his Honour separately set out the evidence relevant to the issue, before setting out his Honour's analysis and decision.
Reasons as to whether the respondent had sepsis
In the course of setting out the evidence of each of the expert witnesses in relation to the question as to whether the respondent had sepsis, the learned trial judge made express findings concerning his assessment of each witness. In that regard, his Honour referred to the quality of their reports, the extent to which their opinions were supported by relevant research articles, the manner and clarity with which they gave their evidence and the extent to which they demonstrated an understanding of their areas of specialisation.
By way of two examples, his Honour made the following findings in relation to Dr Numa and Dr Prebble respectively:[140]
Dr Numa was, in my respectful view, a very impressive witness. His reports, subject to one qualification, clearly exposed his process of reasoning and the bases for reaching the conclusions that he did, including by reference to articles and publications. The fact that the articles and publications cited by him supported the propositions for which they were cited was at no stage challenged. Further, Dr Numa also gave his oral evidence in a clear and unambiguous way. He demonstrated an intimate understanding of his areas of specialisation. He was able to explain clearly without any difficulty whatsoever the bases for the opinions and conclusions that he had expressed in both his reports and during the course of his evidence even when these opinions and conclusions were subjected to challenge in cross-examination.
…
Dr Prebble was a measured, cautious and conscientious witness. I have no doubt, having read his reports and having watched and listened to him give evidence, that the opinions that he expressed are the result of careful and detailed consideration by him of the circumstances of the plaintiff's case. Nonetheless, the weight that can appropriately be placed on his evidence is, in my view, reduced by reason of the fact that the opinions that he expressed were not based on any practical experience in the management or treatment of ARDS or burns in paediatric patients. That this is the case is reflected, in my view, by the fact that the defendant's counsel did not in his closing submissions endeavour to place any great reliance on the evidence of Dr Prebble, at least in relation to the question of whether or not the plaintiff had sepsis.
[140] Primary reasons [199], [350]. The 'one qualification' referred to by his Honour is referred to at [192] below.
When it came to his analysis and decision, his Honour commenced by recognising that the respondent bore the onus of proving, on the balance of probabilities, that she had sepsis on 10 December 2015 and that it was necessary that his Honour feel an actual persuasion of the existence of that fact.[141]
[141] Primary reasons [666], referring to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 361 ‑ 362.
The learned trial judge then recorded his critical finding: [142]
Ultimately, I have come to the conclusion that I am satisfied that the plaintiff did by the evening of 10 December 2005 have sepsis and that her sepsis continued to evolve up until the time that she was transferred to and treated in the ICU. I am persuaded of this fact.
[142] Primary reasons [667].
His Honour then proceeded to give 13 reasons which, in combination, satisfied him of that fact. Most of those reasons are the subject of individual grounds of appeal. In summary, the 13 reasons given by his Honour were:
1.the respondent suffered superficial partial thickness and deep dermal burns to approximately 18% of her TBSA and, in any event, to less than 20% of her TBSA;[143]
[143] Primary reasons [668].
2.the evidence established that although SIRS and ARDS can develop in the absence of sepsis, the more common, if not most common, cause of SIRS, and consequentially ARDS, in paediatric patients is sepsis;[144]
[144] Primary reasons [669].
3.the evidence established that where a child of around the respondent's age suffers partial thickness and deep dermal burns to less than 20% of her body, the chance of the child developing ARDS as a result of SIRS in the absence of sepsis is, if not 'vanishingly small', very low indeed;[145]
[145] Primary reasons [670].
4.out of the three expert witnesses who were, in his Honour's view, best positioned and best qualified to express an opinion as to whether the respondent did have sepsis on the evening of 10 December 2005 or at any time thereafter (namely Dr Numa, Professor Kesson and Professor Starr) two of them, namely Dr Numa and Professor Kesson, were of the opinion that it was more probable than not that the respondent did have sepsis;[146]
5.out of all the highly qualified and generally impressive expert witnesses who gave evidence, Dr Numa was, in his Honour's opinion, for reasons he had given, the most impressive;[147]
6.none of the appellant's expert witnesses expressed the opinion that the respondent definitely did not have sepsis;[148]
7.on the night of her admission the respondent did have an 'Enterobacter +++' infection in her right knee burn wound. His Honour found that this infection was more than a mere skin contaminant and was capable of contributing to, or causing, the respondent's ARDS in one of two ways: either by the bacteria making its way into the bloodstream or, as explained by Dr Numa, by the infection resulting in the release of cytokines into the bloodstream, which caused the respondent's SIRS (which in turn caused the ARDS);[149]
8.by the evening of 11 December 2005 there were several features of the respondent's case which, viewed collectively, were not only consistent with, but also suggestive of, the respondent having a bacterial infection and sepsis rather than simply a severe inflammatory response to sterile burns. His Honour elaborated on this reason by reference to the respondent's vital signs and the evidence of the expert witnesses;[150]
9.the respondent's coagulation profile taken on 12 December 2005 was indicative of sepsis;[151]
10.within a relatively short time of the respondent being placed on antibiotics her white blood cell count and neutrophil count began to rise. This, as was explained by Dr Numa, was consistent with the antibiotics killing the bacteria, with the result that the respondent's bone marrow was able to start replenishing the respondent's neutrophils;[152]
11.although the single blood culture produced from the sample of blood taken from the respondent returned a negative result for bacteria, the evidence adduced revealed, in his Honour's view, credible explanations for the result;[153]
12.although the blood cultures produced from samples taken from the respondent after she had been admitted to the ICU returned negative results for bacteria his Honour was satisfied, on the basis of the evidence given by Dr Numa and Professor Kesson, that there was a credible explanation for those results;[154] and
13.although the samples of fluid taken from various regions of the respondent's body on 13 December 2005 returned negative results for bacteria, his Honour was satisfied on the basis of the evidence given by Dr Numa that those samples were unlikely to return positive results even in the presence of infection and sepsis.[155]
[146] Primary reasons [672]. In this context, his Honour expressly recognised that the relevant question was not to be decided solely on the basis of the numbers of experts favouring one view or the other.
[147] Primary reasons [675].
[148] Primary reasons [676].
[149] Primary reasons [677].
[150] Primary reasons [678].
[151] Primary reasons [684].
[152] Primary reasons [685].
[153] Primary reasons [687].
[154] Primary reasons [690].
[155] Primary reasons [691].
Having identified these reasons for the sepsis finding, the learned trial judge went on to make a number of additional points, including that he did not accept the evidence of the radiologist Dr Murray to the effect that that the nature, tempo and persistence of the respondent's pulmonary opacification were typical of a sterile inflammatory process.[156]
Reasons as to breach of duty of care
[156] Primary reasons [696].
In relation to the issue of breach, the learned trial judge commenced by identifying the relevant standard of care that was required of the individual doctors who were responsible for the care and treatment of the respondent while she was a patient in the Hospital's burns ward, and hence the standard of care that was required of the appellant. His Honour found that that was the standard of the ordinary skilled practitioner working within the specialist field of paediatric burns.[157]
[157] Primary reasons [704].
The learned trial judge identified the relevant provisions of the Civil Liability Act, including s 5B and s 5PB. In relation to the latter section, his Honour indicated that he would proceed on the basis that, in order to prove the alleged breach of duty, the respondent was required to prove that the conduct of the doctors who were responsible for the care and treatment of the respondent was not in accordance with a practice which is widely accepted by their peers as competent professional practice. [158]
[158] Primary reasons [714].
After reviewing the expert evidence in relation to the care provided to the respondent, the learned trial judge concluded:[159]
Having reviewed the PMH medical records relating to the plaintiff, I am satisfied beyond any doubt that prior to the plaintiff being admitted to the ICU no consideration was given by any of the doctors who, to that point, had been responsible for her care and treatment to the possibility that her deterioration was due to sepsis as opposed to fluid overload.[160] …
In addition, the doctors responsible for the care and treatment of the plaintiff while she was in the burns ward did not commence the plaintiff on antibiotics. The fact that they did not do so is, of course, consistent with the fact that they all considered the cause of the plaintiff's problems to be fluid overload.
[159] Primary reasons [794] - [795].
[160] Primary reasons [794].
In light of those findings, the learned trial judge identified the relevant question under s 5PB(1) as being whether the failure to recognise that the respondent might be suffering from sepsis, the failure to test for sepsis and the failure to commence her on antibiotics, was conduct that was in accordance with a practice that was widely accepted by peers of the doctors responsible for the care and treatment of the respondent in the burns ward as competent professional practice.[161]
[161] Primary reasons [799].
His Honour answered that question 'no', observing that unsurprisingly, none of the medical witnesses who gave evidence suggested that it was widely accepted by peers of doctors working in a paediatric burns unit as competent professional practice to fail to recognise that a patient is, or might be, suffering from sepsis and in those circumstances to fail to test for sepsis and to fail to administer antibiotics.[162]
[162] Primary reasons [800].
Having concluded that the respondent had discharged the onus of excluding the operation of s 5PB(1) of the Civil Liability Act, the learned trial judge turned to the general issue of breach (i.e. under s 5B of the Civil Liability Act); namely, whether the burns ward doctors, in failing to recognise by 10 December 2005, or at any time thereafter, that the respondent was, or might be, suffering from sepsis, and from that time in failing to test for sepsis and commence administering antibiotics to the respondent, fell below the standard of care required of them. [163]
[163] Primary reasons [800].
In that regard, his Honour stated that he was satisfied that:[164]
(a)in burns cases antibiotics should not be given prophylactically;
(b)infection and sepsis is always a concern in burns cases, even in cases involving burns of the nature and extent suffered by the respondent;
(c)sepsis can progress to severe sepsis and ARDS quickly;
(d)where infection and sepsis in a paediatric burns patient is suspected on clinical grounds, the appropriate course of action is, given the potential severity of the consequences of sepsis and the speed with which it can evolve, to take a sample of the patient's blood for culturing and to commence the patient on broad spectrum antibiotics as quickly as possible without waiting for the blood culture results;
(e)the downside of not administering antibiotics to a paediatric burns patient who on clinical grounds is suspected to be suffering from sepsis far outweighs the potential benefits of adopting such a course of action; and
(f)the signs and symptoms which the respondent had exhibited on 10 December 2005 should, by no later than around 2.00 am on 11 December 2005, have caused the team of doctors responsible for the respondent's care and treatment in the burns ward to recognise the possibility (that is, the foreseeable and not insignificant risk) that she did have evolving sepsis and, in light of this possibility, to take a sample of her blood for culturing and to commence administering to her as quickly as was reasonably possible (say, within an hour) broad spectrum antibiotics pending the receipt of the results of the blood culture.
[164] Primary reasons [803] - [804].
Ultimately, the learned trial judge was satisfied that by failing to recognise, by around 2.00 am on 11 December 2005, the possibility that the respondent had sepsis and by failing to administer antibiotics as quickly as was reasonably possible, the team of doctors responsible for the care and treatment of the respondent in the burns ward did not meet the standard of care that was required of the ordinary skilled practitioner working within the specialist field of paediatric burns.
These being the findings that are the subject of the appeal, we turn to the grounds of appeal.
Grounds of appeal
The grounds of appeal that were maintained at the hearing of the appeal are as follows (particulars omitted):
1.The trial judge erred in law by failing to consider and determine an essential issue, being that for a child of the Respondent's… age who suffers partial thickness and deep dermal burns to less than 20% of her body, the chance of developing [ARDS] as a result of [SIRS] in the absence of sepsis is very low; Judgment [670]. The trial judge ought to have found that the fact that [the respondent] had partial thickness and deep dermal burns to less than 20% of her body, and had developed ARDS as a result of SIRS, was not relevant to whether on the evening of 10 December 2005 [the respondent] had sepsis.
…
2.The trial judge erred in fact in finding that for a child of [the respondent's] age who suffers partial thickness and deep dermal burns to less than 20% of her body, the chance of developing ARDS as a result of SIRS in the absence of sepsis is very low, was evidenced by the absence of such cases reported in the academic literature; Judgment [670]. The trial judge ought to have found that the fact that the absence of such cases being reported in academic literature was irrelevant to whether on the evening of 10 December 2005 [the respondent] had sepsis.
…
3.The trial judge erred in law and in fact in finding that that the expert medical paediatric burns specialists, Professors Harvey and Kimble, were not qualified to express an opinion as to whether it was more probable than not that [the respondent] suffered from sepsis on the evening of 10 December 2005 or less qualified than other expert medical witnesses, Dr Numa, Professor Kesson and Professor Starr; Judgment [672] - [673]. The trial judge ought to have found that the expert witnesses with the greatest relevant expertise to express an opinion as to whether [the respondent], with partial thickness and deep dermal burns to less than 20% of her body, had developed ARDS as a result of SIRS caused by sepsis, on the evening of 10 December 2005 were Professors Harvey and Kimble.
…
4.The trial judge erred in law in finding that Dr Numa's opinions were to be preferred to those of all other expert witnesses whose opinions differed; Judgment [675]. The trial judge ought to have found that Dr Numa's opinions were of no greater probative value in determining whether on the evening of 10 December 2005 [the respondent] had sepsis, than those of Professor Starr and of less probative value than those of Professors Kimble and Harvey.
…
5.The trial judge erred in fact in finding that the probative value of Professor Harvey's opinion as to the cause of [the respondent] suffering ARDS was adversely affected by Professor Harvey incorrectly recalling details of a case about which he gave evidence to support his opinion; Judgment [588] - [596]. The trial judge ought to have found that there was no basis to question any opinion of Professor Harvey.
…
6.The trial judge erred in law and in fact in finding that the Enterobacter infection of [the respondent's] right knee burn wound caused the release of cytokines into her bloodstream which caused SIRS which caused ARDS prior to the evening of 10 December 2005; Judgment [677]. The trial judge ought to have found that the respondent had not proved that Enterobacter infection of [the respondent's] right knee burn wound caused [the respondent's] ARDS prior to the evening of 10 December 2005.
…
7.The trial judge erred in law and in fact in finding that by the evening of 11 December 2005 there were several features which collectively were suggestive of [the respondent] having by the evening of 10 December 2005 a bacterial infection and sepsis and not SIRS without infection; Judgment [678]- [682]. The trial judge ought to have found that the respondent had not proved that by the evening of 11 December 2005 there were several features which collectively were suggestive of [the respondent] having by the evening of 10 December 2005 a bacterial infection and sepsis and not SIRS without infection.
…
8.[Not pursued]
9.The trial judge erred in law and fact in finding that changes to [the respondent's] white blood cell count and neutrophil count on 12 and 13 December 2005 was indicative of her having sepsis on the evening of 10 December 2005; Judgment [685]. The trial judge ought to have found that changes to [the respondent's] white blood cell count and neutrophil count on 12 and 13 December 2005 were irrelevant.
…
10.The trial judge erred in law and fact in rejecting the evidence of Professor Starr that bacterial infection of the bloodstream caused by infection on the surface of the skin does not usually occur within the first 24 to 48 hours of infection on the surface of the skin; Judgment [694] - [695]. The trial judge ought to have found that bacterial infection of the bloodstream caused by infection on the surface of the skin does not usually occur within the first 24 to 48 hours of infection on the surface of the skin and that thereby it was unlikely that Enterobacter infection of [the respondent's] right knee burn wound caused [the respondent's] ARDS prior to the evening of 10 December 2005.
…
11.The trial judge erred in law and fact in finding that by the evening of 10 December 2005 or by 3.00am on 11 December 2005 [the respondent] had sepsis; Judgment [692]. The trial judge ought to have found that the respondent had not proved that that by these times [the respondent] had sepsis.
…
12.The trial judge erred in law in construing s 5PB(l) of the Civil Liability Act 2002 as requiring that the Appellant prove the existence of a practice that was widely accepted by the burns ward doctors' peers as competent professional practice, in accordance with which the Appellant's officers acted; Judgment [796].
13.The trial judge erred in law and fact in finding that for the purpose of s 5PB(l) of the Civil Liability Act 2002, the burns ward doctors peers included Dr Numa and Professor Kesson; Judgment [715], [717] ‑ [743].
…
14.The trial judge erred in law and fact in finding that the alleged breaches of duty by the burns ward doctors prior to the evening of 10 December 2005 were negligent in that the treatment of [the respondent] prior to the evening of 10 December 2005 was contrary to practice widely accepted by the burns ward doctors' peers as competent professional practice; Judgment [793], [801]. The trial judge ought to have found that [the respondent's] treatment by the burns ward doctors prior to the evening of 10 December 2005 was not negligent.
…
15.The trial judge erred in law and fact in finding that the alleged breaches of duty by the burns ward doctors prior to 3.00am on 11 December 2005 were negligent in that the treatment of [the respondent] prior to 3.00am on 11 December 2005 was contrary to practice widely accepted by the burns ward doctors' peers as competent professional practice; Judgment [804]-[805]. The trial judge ought to have found that [the respondent's] treatment by the burns ward doctors to 3.00am on 11 December 2005 was not negligent.
…
16.The trial judge erred in fact in finding that prior to the respondent being admitted to the ICU no consideration was given by any of the doctors who had been responsible for her care and treatment to the possibility that deterioration in the respondents condition was due to sepsis as opposed to fluid overload; Judgment [794].
Grounds 1 to 11 - challenge to the finding of fact that the respondent had sepsis
As noted above, grounds 1 to 11 are all directed towards the learned trial judge's finding that, by the evening of 10 December 2005, the respondent had sepsis and that her sepsis continued to evolve up until the time she was transferred to, and treated, in the ICU at the Hospital (the sepsis finding). As can be seen from those grounds, many of them challenge the individual reasons identified by his Honour for reaching that finding.
Before turning to the individual grounds, it is appropriate to make three general observations in relation to the challenge to the learned trial judge's finding of fact in this regard.
First, the sepsis finding was to a substantial extent informed by the learned trial judge's assessment of the credibility and reliability of the parties' expert witnesses. In particular, the learned trial judge was impressed with the credibility and reliability of Dr Numa's testimony. The general principles relevant to appellate restraint in this context were summarised most recently by this court in Smart v Power.[165] The principles have also more recently been restated by the High Court in Lee v Lee:[166]
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". (footnotes omitted)
[165] Smart v Power [2019] WASCA 106 [100] - [105] (Murphy, Beech, Pritchard JJA).
[166] Lee v Lee [2019] HCA 28 [55] (Bell, Gageler, Nettle, Edelman JJ).
These principles apply equally to the testimony of expert witnesses.[167]
[167] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178 - 179; Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [131]; DRA Industries Pty Ltd v Kuredale Pty Ltd [2018] WASCA 17 [52]; Christos v Curtin University of Technology [2017] WASCA 110 [104]; Western Australia v Watson [1990] WAR 248, 305; X and Y (by her tutor X) v Pal (1992) 23 NSWLR 26, 34, 49; Davids Holdings Pty Ltd v Attorney-General (Cth) (1994) 49 FCR 211, 243 ‑ 244.
In this context, due regard must be had to the advantages of the learned trial judge. In that regard, it would:[168]
be wrong to limit 'the advantages which the primary decision-maker has' to demeanour as a guide to credibility assessment and to ignore the 'feeling of a case' that usually emerges from running a trial. The primary decision-maker is able to assess testimony against the entirety of the evidence and in a situation in which she or he has an appreciation of the way the trial was run. There may, for example, be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript. Similarly, the effect of evidentiary rulings or rulings about the pleadings made at one stage of a trial may have a greater impact at another point in the proceedings than will be apparent from the record. In carrying out its duty to decide for itself on the proper inference to be drawn from facts an appellate court must be alive to the entire context in which findings were made.
[168] Brett v Rees [2009] WASCA 159 [69] (Owen JA, Martin CJ & Miller JA agreeing).
In the present case, a number of the grounds of appeal, in substance (if not in form) proceeded upon an analysis of the competing evidence, and choices made by the learned trial between competing evidence, without clearly articulating why his Honour was wrong to have made those choices. In that regard, it is not sufficient, for example, to submit that his Honour should have accepted certain evidence without demonstrating why his Honour was in error not to have done so.
Secondly, in relation to a number of the learned trial judge's findings of fact it is apparent that his Honour preferred the evidence of some experts over others. This was particularly the case in relation to the learned trial judge's fifth reason for the sepsis finding, namely that Dr Numa was, in his Honour's assessment, and for reasons he had given, the most impressive witness.[169] This finding and the adequacy of the reasons for it, in particular, are challenged by ground 4, which we will deal with in more detail later.
[169] Primary reasons [675].
For present purposes, however, it is sufficient to observe that, in a number of respects, the appellant's complaint that the learned trial judge gave inadequate reasons for preferring one expert's evidence over another was that his Honour did not give reasons for aspects of (or for the use of particular words in) those reasons. The fact that Dr Numa was found by his Honour to be the most 'impressive' witness, for example, was said to be inadequate because 'impressive was not a reason',[170] notwithstanding that his Honour identified a number of matters arising from Dr Numa's reports, and the manner in which he gave his evidence, for expressing confidence in his evidence.[171]
[170] Appeal ts 47-50.
[171] See, for example, at [76] above.
The principles relevant to an evaluation of the adequacy of reasons, are well known and were recently summarised in Chief Executive Officer, Department for Child Protection and Family Support v IGR.[172] They include the need to disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
[172] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 [112] (Quinlan CJ, Murphy & Beech JJA).
Nevertheless, where a primary court does set out that intellectual process, including by reference to the demeanour of witnesses,[173] the obligation to give adequate reasons does not involve, or require, an elaborate explanation of each expression used to describe that evidence, as if by an infinite regression of 'reasons for reasons'. At some point a trial judge reaches bedrock and his or her spade is turned.[174]
[173] Which, in the case of experts, will include the clarity of their opinions, their evident familiarity with the subject matter (including any relevant academic or professional literature) in the course of giving evidence, their responsiveness to cross‑examination, their apparent ease of explaining their opinions, and the apparent care taken in expressing their opinions.
[174] Wittgenstein L, Philosophical Investigations (1953), §217.
Finally, in relation to the grounds challenging the sepsis finding, it is to be recalled that the learned trial judge expressly stated that the reasons he set out persuaded him of that fact 'considered not in isolation from each other but rather in combination'.[175]
[175] Primary reasons [692].
In considering the individual challenges made to the 13 reasons given by his Honour, therefore, it is important to remember that the extent to which a particular reason might be said to have supported the overall sepsis finding is not to be judged in isolation. It may be that an individual matter might not, on its own, support a finding to the required standard that the respondent had sepsis but, nevertheless, provide support for the ultimate finding (in combination with all of the other matters).
We turn, then, to the individual grounds of appeal in relation to the sepsis finding.
Ground 1 - The relevance of the extent of the respondent's burns
A significant issue at trial was the likelihood that a child around the respondent's age with partial thickness and deep dermal burns to less than 20% TBSA, would develop ARDS as a result of SIRS in the absence of sepsis. The issue was relevant because, to the extent that the chance of that occurring (i.e. ARDS developing without sepsis) was very low, it supported (albeit did not compel) the inference that the respondent, who did develop ARDS, had sepsis.
This consideration was clearly identified by Dr Numa in his first report, in which he said that 'where the [respondent] had no full thickness burns and burns to no more than 18% of her TBSA, ARDS is unlikely to have developed as a result of the burn itself'.[176]
[176] See [30] above.
The rarity of that occurrence was contested by the appellant at trial, including by reference to articles and case studies referred to by its expert witnesses (the relevance of which were rejected by the learned trial judge).[177]
[177] Primary reasons [595], [671].
In the appeal the appellant did not challenge the learned trial judge's finding that the chance of a child of the respondent's age with partial thickness and deep dermal burns to less than 20% TBSA developing ARDS as a result of SIRS in the absence of sepsis was, if not 'vanishingly small', very low indeed.[178]
[178] Primary reasons [670].
Rather, by ground 1, the appellant submits that the learned trial judge erred in taking into account the very low probability of ARDS in the absence of sepsis, because the probability of a child in the respondent's position 'developing ARDS in the relevant circumstances by reason of sepsis and in the absence of sepsis were equally low'.[179] In essence, the appellant alleged that, despite the significant contest at trial in relation to the likelihood of developing ARDS in the absence of sepsis, that contest was irrelevant because the likelihood of a child in the respondent's circumstances developing ARDS with sepsis, was the same as it developing without sepsis.
[179] Appellant's amended submissions [15]; WAB 14.
There was no finding by the learned trial judge that the likelihood of those two outcomes were the same. The respondent submits that this is not surprising as that assertion was not explored in the evidence at trial;[180] that is, the suggestion of equal probabilities was not raised in the expert reports, put to the expert witnesses at trial or put in submissions.[181]
[180] Respondent's amended submissions [18]; WAB 76.
[181] Respondent's amended submissions [20]; WAB 78.
The respondent's submission in this regard should be accepted. There was no suggestion at trial that the likelihood of a child with burns to less than 20% TBSA developing ARDS in the presence of sepsis, was the same as the likelihood of ARDS developing in the absence of sepsis.
Indeed, the very premise of the debate between the expert witnesses as to whether there were any reported cases of a child developing ARDS with burns to less than 20% TBSA in the absence of sepsis, was that any such cases (if they existed) would be a subset of all cases in which ARDS developed in the case of burns to less than 20% TBSA. And in that context his Honour found, contrary to the evidence of Dr Prebble and Professor Harvey, that there were no cases reported in the literature of a child with burns to less than 20% TBSA developing ARDS in the absence of infection.[182] Those reported cases in which persons with burns to less than 20% TBSA did develop ARDS did not support that proposition, because those cases were concerned with either infection or direct injury to the lungs (which the respondent did not have).[183]
[182] Primary reasons [670] - [671].
[183] Primary reasons [671].
The fact that there were reported cases of ARDS developing in persons with burns to less than 20% TBSA with infection (such as that referred to by Professor Harvey),[184] rather supports the notion, implicit in the debate between the experts, that the presence of infection increases the likelihood of ARDS in a patient with such burns, not that the likelihood of ARDS is the same whether infection is present or not.
[184] Primary reasons [595].
In any event, the evidence at trial did not support the conclusion that the probabilities of developing ARDS in the respondent's circumstances were the same, with or without sepsis. Professor Starr for example, expressly agreed that it was likely to be true that 'it was far more common for ARDS and SIRS to develop if the burns are less than 20% if there is also sepsis present'.[185]
[185] Trial ts 221; Primary reasons [434].
The evidence relied upon by the respondent in support of the proposition that the probabilities were the same, with or without infection, was the following evidence of Professor Kimble:[186]
We treat 1,100 children with new burns every year. So over the last two years, that would be 2,200 children, new burns.
And are you personally involved with each patient?---I'm director of the - the service, and so I am not involved with every single patient. But I will know about them all because they're all discussed. There's only five paediatric burns surgeons here and we have a meeting every week where we discuss all the significant patients and that we - you know, so although I'm not the permanent clinician for all these patients, I make myself aware of them all. And I am personally involved with all the significant burns. That's something which I've done for the last - years that - but for kids with larger burns, you always require two consultant burns surgeons to - to deal with them. And so I can fairly happily say that I've been involved with all the major burns patients really since 1999 in this institution.
And you gave a statistic that only half a dozen of those patients have developed serious ARDS. Is that right?---Yes. Every year, we - we'll only have maybe a half a dozen patients who we'd have enough respiratory compromise to - to require intensive care treatment.
And of those half a dozen, you say that three had problems with infection?---This is over the last two years that we've had three who we felt had significant infections. And - and sometimes you've got to presume these things because cultures don't always - they're not always as helpful as you would think. But we presumed that three of them had the problems partially due, or totally due, to the presence of sepsis: two of them bacterial, one of them viral.
All right. And of the - the other three of that half dozen you say was unexpected ARDS and you didn't find evidence of infection. Is that what you're saying?---Yeah. A number of the infections over the last two years were - we have half a dozen who will require intensive care support. So, you know, all I can say about the others, we have not identified positive organisms. And, you know, these - these are estimates I'm giving that - I was never asked to provide accurate statistical data. This is just going from my experience of treating major burns in this hospital.
[186] Trial ts 313-314 (see Appeal ts 21-22).
His Honour clarified this evidence, with the agreement of the witness:[187]
DERRICK DCJ: No. But, Mr Lampropoulos, that's the point. The doctor hasn't given - the doctor is not saying that three of the six didn't have infection. What he's saying is over the past 12 months, six had developed respiratory compromise, and over the last two years, three had presumed infection. He's not saying three of the six.
LAMPROPOULOS, MR: All right.
DERRICK DCJ: At least, that's not what he's said thus far?---That's - that's absolutely correct.
LAMPROPOULOS, MR: Well, if I can just get my mind on that, how many in the last one or two years do you say did not have infection?---As I said, I don't have accurate numbers.
[187] Trial ts 315.
This evidence does not support an equivalence of the likelihood of developing ARDS with burns to less than 20% TBSA with infection, with the likelihood of developing ARDS in such a case without infection. On the contrary, it is not addressing cases of ARDS in patients with burns to less than 20% TBSA at all. The evidence was dealing with the incidence, in Professor Kimble's hospital, of respiratory distress and infection generally, without reference to the size of the burns. Indeed, as he stated, Professor Kimble's own personal involvement was with 'kids with larger burns'.
For these reasons, the learned trial judge did not err in taking into account the very low probability of ARDS in the absence of sepsis, or in failing to find that probability of a child in the respondent's position developing ARDS by reason of sepsis, and in the absence of sepsis, were equally low.
Ground 1 is not made out.
Ground 2 - The absence of reported cases of ARDS in the absence of sepsis
Ground 2 is related to ground 1, and concerns the learned trial judge's conclusion that the chance of a child of the respondent's age with partial thickness and deep dermal burns to less than 20% TBSA developing ARDS as a result of SIRS in the absence of sepsis was, if not 'vanishingly small', very low indeed.[188]
[188] Primary reasons [670].
In that context, the appellant challenges the learned trial judge's reference to, and apparent reliance upon, the 'fact that there are no such cases reported in the literature'. The appellant does not appear to challenge the finding that the relevant chance was 'very low' (which it earlier stated was expressly not challenged)[189] but rather that it was low 'in comparison' to those cases in which there is an infective process involved.[190]
[189] Appellant's amended submissions [12]; WAB 13 ('This finding is not challenged').
[190] Appeal ts 28.
The ground of appeal, accordingly, raises essentially the same issue as ground 1, namely that the learned trial judge erred in not finding that the probabilities of a child in the respondent's position developing ARDS by reason of sepsis, and in the absence of sepsis, were equally low. For the reasons set out in relation to ground 1, his Honour did not err in this regard.
The additional feature raised by ground 2, is the submission that the learned trial judge did not refer to the 'plainly credible and probative' explanation given by Professor Kimble for there being an absence of reported cases in the literature.
The evidence of Professor Kimble relied upon by the appellant in this regard was as follows:[191]
Have you ever published in relation to ARDS in burns patients in any peer-reviewed publication?---No, and the reason why we don't is because we publish on areas where we have that critical mass of patients, and so the ARDS area in burns is best done by the large - very large paediatric institutes, such as Shriners in the USA and the major burns institutes in China that really, our contribution to the world literature for ARDS in burns, you know that you're not going to get that critical mass to make meaningful studies from this country. And that's why - you know, I'm one of the most published people in the world in paediatric burns, but I will not publish on areas that we don't have that critical mass. You know, we will generally talk about the numbers of our patients and what happened to them, but I do not know any specific publications on ARDS.
[191] Trial ts 317 (see Appellant's amended submissions [19]; WAB 14).
This evidence, with respect, is not an explanation as to why there are no reported cases of a child of the respondent's age with burns to less than 20% TBSA developing ARDS in the absence of sepsis. It is simply an explanation as to why Professor Kimble had not published in the field. It says nothing of the extent of the research literature generally or what that literature reveals.
The remarks were, of course, made in the context of s 5O of the NSW Act, which transfers the onus of proof onto the defendant. Nevertheless, they are equally applicable in a case under the Civil Liability Act. Indeed, they may be more so. Given that the plaintiff is required to negative s 5PB(1) where it is successfully invoked, it is important, in order to avoid surprise, that a plaintiff is on notice that the defendant relies upon s 5PB(1), and upon what basis.
This is particularly the case given that, as we have concluded in relation to ground 12, for s 5PB(1) to operate it is necessary to identify 'a practice' that existed at the time of the events in question, rather than some more generic reference to 'professional practice'. In those circumstances, as a matter of fairness, the plaintiff will need to address the 'practice' upon which the defendant relies.
Nevertheless, as we have stated at [332], we have qualified the answer to this question with the word 'generally'. That is because, there may well be circumstances in which, by reason of the exchange of expert evidence (for example), the particular basis upon which s 5PB is invoked will be readily apparent without the need for it to be specifically pleaded.
Much, of course, will depend upon the particular circumstances of each case.
We raise the issue of pleading, however, because the appellant in the present case did plead s 5PB. Paragraph [30] of the Re-Amended Defence provided:[319]
Further, the Defendant says that, pursuant to section 5PB of the Civil Liability Act 2002 (WA), at all material times it acted in accordance with a practice that was widely accepted as competent professional practice.
[319] BAB 168.
The respondent sought further and better particulars of the relevant 'competent professional practice' which request was answered as follows:[320]
1.The relevant competent professional practice includes:
1.1Assessment of total body surface area burnt using a Lund and Browder Burns Chart;
1.2Provision of initial intravenous fluid replacement in accordance with the Parkland Formula;
1.3Provision of maintenance fluids in accordance with the Modified Parkland Formula and by assessment of urine output and adjustment of the rate of fluid replacement to maintain a urine output of approximately 1ml/kg/hour; and
1.4Regular observation and monitoring of clinical signs including hydration, urinary output, urine specific gravity, haemodilution, and for the presence of peripheral oedema; and
1.5Adjustment of intravenous infusion rates in response to signs of fluid retention and increased urinary output.
[320] BAB 170 - 171.
These particulars, it should be emphasised, were given at a time when the respondent's case included an allegation that the appellant was in breach as a consequence of the respondent being administered with too much fluid in the course of her treatment (fluid overload). That allegation was abandoned prior to trial.[321] In those circumstances, the learned trial judge was correct to observe that the practice referred to in the particulars provided by the appellant were not really to the point.[322] That is because the relevant practice, for the purposes of s 5PB, must relate to the act or omission that is alleged to be negligent. It is that act or omission that must be in accordance with the relevant practice.
[321] Primary reasons [66]. See Appeal ts 150 - 151.
[322] Primary reasons [799].
In the present case, there was (by the time of trial) no allegation of a negligent act or omission of the appellant in relation to the administration of fluid to the respondent. Widely accepted practice in relation to the administration of fluid was therefore irrelevant.
At trial, the relevant acts or omissions were the failure to recognise that the respondent might be suffering from sepsis; the failure to test for sepsis; and the failure to commence her on antibiotics. It was, accordingly, those acts or omissions that the learned trial judge focussed on:[323]
The question that must be considered under s 5PB(1) in the present case is whether the alleged negligent conduct (that is, the failure to recognise that the plaintiff might be suffering from sepsis, the failure to test for sepsis and the failure to commence her on antibiotics) was conduct that was in accordance with a practice that was widely accepted by peers of the doctors responsible for the care and treatment of the plaintiff in the burns ward as competent professional practice.
[323] Primary reasons [799].
This leads us to a consideration of ground 12.
Ground 12 - 'a practice' vs 'practice'
Ground 12 alleges that the learned trial judge erred in law in construing s 5PB(l) of the Civil Liability Act as requiring that the appellant prove the existence of a practice that was widely accepted by the burns ward doctors' peers as competent professional practice, in accordance with which the appellant's officers acted.
This ground of appeal refers in particular to the passage at Primary reasons [796], in which, consistent with the passage reproduced at [342] above, his Honour said: [324]
[T]he first question that must be considered in deciding if the plaintiff has established the alleged breach of duty is whether the plaintiff has proved that the conduct of doctors in the burns ward in failing to recognise that she might be suffering from sepsis, in failing to test for sepsis and in not commencing her on antibiotics, was not in accordance with a practice that was widely accepted by their peers as competent professional practice.
[324] Primary reasons [796].
In its terms, ground 12 is clearly misconceived. It suggests that the learned trial judge required the appellant to prove the existence of the relevant practice. The learned trial judge did no such thing. It is clear that his Honour, correctly, identified that the onus was on the respondent to prove that the conduct was not in accordance with any such a practice.
As developed in the appellant's submissions, however, it is clear that ground 12 is not concerned with the onus of proof but rather with whether, for the purposes of s 5PB, it is necessary to identify 'a practice', in the sense of a regular course of conduct in particular circumstances or, alternatively, whether s 5PB operates where the defendant's conduct accords with 'practice' in a general sense, i.e. 'practice that is widely accepted by peers as competent professional practice'.[325]
[325] Appellant's amended submissions [128]; WAB 33.
The appellant submits that s 5PB does not require the identification of 'a practice'.
By way of shorthand, then, the issue raised by ground 12 is whether, properly construed, s 5PB is concerned with 'a practice' or simply with 'practice'?
The distinction between the two was usefully articulated by Basten JA in Sparks v Hobson:[326]
To speak of 'a practice' adopted by a group of professional persons suggests a regular course of conduct adopted in particular circumstances. By contrast, the phrase 'competent professional practice' is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice.
[326] Sparks v Hobson [31] (Basten JA).
In this regard the current state of authority in New South Wales, in relation s 5O of the NSW Act, albeit with some controversy, favours the requirement for 'a practice'. The appellant submits that that is 'plainly wrong' and should not be followed.
The requirement for 'a practice' in New South Wales may be traced to the decision of the Court of Appeal in McKenna v Hunter & New England Local Health District.[327] In McKenna, Macfarlan JA (with whom Beazley P agreed) stated:[328]
To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice. (original emphasis)
[327] McKenna v New England & Hunter Local Health District[2013] NSWCA 476 (McKenna).
[328] McKenna [160] (Macfarlan JA).
The decision in McKenna was overturned by the High Court on grounds unrelated to s 5O.[329]
[329] New England & Hunter Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270.
Following the High Court's decision, the authority of McKenna in relation to the construction of s 5O was considered by the Court of Appeal in Sparks v Hobson.
In Sparks v Hobson, Macfarlan JA adhered to the construction he had reached in McKenna: [330]
Section 5O uses the past tense ('at the relevant time ... was widely accepted') to refer to the relevant peer professional opinion. Thus, the opinion about the manner in which the defendant acted must have existed, and been widely accepted, at the time the conduct occurred. It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct.
[330] Sparks v Hobson [211] (Macfarlan JA).
Basten JA disagreed. His Honour concluded that:[331]
although the language used in McKenna may well sufficiently describe many circumstances in which s 5O is invoked, I would not understand it as a general proposition as to the constraints imposed by s 5O(1).
[331] Sparks v Hobson [34] (Basten JA).
The third member of the court in Sparks v Hobson, Simpson JA, disagreed with the reasoning in McKenna but considered that she was obliged to accept it as stating the proper construction of s 5O. Her Honour said:[332]
I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277] ‑ [279]. But for that constraint, I would have considered that the language of s 5O makes it plain that 'competent professional [here, medical] practice' is intended to denote 'the practice of a profession [here, medicine]', and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with 'professional practice', and the use instead of the adjective 'competent', which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.
[332] Sparks v Hobson [332] (Simpson JA).
It will be apparent, therefore, that there is a divergence, in Sparks v Hobson, between the reasoning of the members of the Court and its authority for the prevailing construction of s 5O of the NSW Act.
Following Sparks v Hobson, Leeming JA described this divergence in South Western Sydney Local Health District v Gould as:[333]
[W]hether 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.
[333] South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 [114].
As Leeming JA went on to note, in South Western Sydney Local Health District v Gould, the divisive issue could be entirely put to one side for the purpose of that appeal.
The division of opinion in New South Wales, therefore, remains unresolved.
Whether the reasoning in McKennaultimately prevails in New South Wales is, of course, not the concern of this Court. That reasoning, and the division in relation to it, concerns the particular statutory text of s 5O of the NSW Act.
The text of s 5PB of the Civil Liability Act is different. However, fortuitously (in the sense that there is no necessity for this Court to enter the sphere of debate in New South Wales), it is different in a manner that makes the reasoning in McKenna even more applicable to s 5PB of the Civil Liability Act than it is to its New South Wales counterpart.
Put another way, whether the approach in McKenna is ultimately held to reflect the proper construction of s 5O of the NSW Act, it is apparent that all of the different approaches in New South Wales support the approach in McKenna as the proper construction of s 5PB of the Civil Liability Act.
That is because, unlike s 5O of the NSW Act, s 5PB of the Civil Liability Act expressly refers to 'a practice' widely accepted by peers as competent professional practice.
The controversy in relation to s 5O of the NSW Act in fact only exists because the provision does not refer to 'a practice' but rather refers to the professional having acted 'in a manner' that was widely accepted in Australia by peer professional opinion as competent professional practice.
The members of the New South Wales Court of Appeal who have expressed disagreement with the approach in McKenna have expressly done so for the reason that, unlike s 5PB of the Civil Liability Act, the NSW Act provision does not refer to 'a practice'.
Basten JA, for example, having set out the central holding in McKenna (reproduced at [352] above) commenced his discussion of the issue by noting that 'there is a risk in reformulating the statutory language'.[334] As the passage immediately following (reproduced at [350] above) makes clear, the 'reformulation' Basten JA was referring to was use of the expression 'a practice'.
[334] Sparks v Hobson [31] (Basten JA).
In s 5PB of the Civil Liability Act, to refer to 'a practice' is not to reformulate the statutory language. It is the statutory language.
Indeed, Basten JA went on in Sparks v Hobson to say:[335]
There are other reasons for thinking that the reference to 'competent professional practice' does not require evidence of 'a practice'. First, it is the 'manner' in which the defendant acted which must be the focus of the opinion. Secondly, if it were necessary to establish a practice, one might expect subs (3) to refer to 'opinions ... concerning that practice', rather than 'opinions ... concerning a matter'.
[335] Sparks v Hobson [32] (Basten JA).
The very language that Basten JA said 'one would expect' to find in s 5O(3) of the NSW Act if it required 'a practice' is precisely what one finds in s 5PB. Section 5PB(3) (the equivalent provision to s 5O(3) of the NSW Act), rather than referring to 'opinions … concerning a matter', refers to 'the practice' differing from or conflicting with 'another practice'.
The language of s 5PB, as a whole, is therefore more consistent with 'a regular course of conduct adopted in particular circumstances'.[336]
[336] Sparks v Hobson [31] (Basten JA).
Similarly, the reasoning of Simpson JA in Sparks v Hobson (reproduced at [357] above), while contrary to the application of the reasoning in McKenna to s 5O of the NSW Act in fact supports the application of that reasoning to s 5PB of the Civil Liability Act. As her Honour noted, the 'absence of the indefinite article' militated against a construction that contemplated a specific practice or method of providing the professional services in question.[337]
[337] Sparks v Hobson [332] (Simpson JA).
In s 5PB, not only does the section refer to 'a practice' using the indefinite article, it refers later to 'the practice' and 'another practice'. Such language, in our view, contemplates 'a specific practice' (per Simpson JA) or 'a regular course of conduct adopted in particular circumstances' (per Basten JA).
Accordingly, whether or not the reasoning in McKenna is clearly wrong in relation to s 5O of the NSW Act, in our view, it is directly applicable to s 5PB of the Civil Liability Act. In that regard, s 5PB expressly refers to 'a practice that, at the time … is widely accepted'. That requires the identification of an existing practice whose wide acceptance can be the subject of evidence.
What s 5PB, in its reference to 'a practice' is referring to, in our view, is an established course of conduct adopted in particular circumstances. Both the reference to 'a practice' and the backwards looking nature of the enquiry ('at the time of the act or omission') are such that (leaving aside the question of onus, for the moment), the practice must as a matter of actual fact have existed, and been widely accepted, at the time. It is not a matter of asking whether a particular practice, in the sense of the course of conduct, would have been widely accepted were competent peers asked about it at the time.
Expert evidence as to whether a particular practice or course of conduct would have been widely accepted at the time (if competent peers were asked about it), is of course, not irrelevant. It would remain relevant to the assessment of breach generally (under s 5B).
In that regard, the position under s 5B is consistent with the approach at common law described by Gleeson CJ in Rosenberg v Percival, namely that:[338]
[T]he relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues. (original emphasis)
[338] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [7] (Gleeson CJ).
Of course, the change made by s 5PB is that, where there is evidence of 'a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice' then (subject to the express exceptions) acting in accordance with that practice will be conclusive (the onus of negativing which lies on the plaintiff).
In that context, requiring evidence of an actual practice is not inconsistent with the policy underlying s 5PB. It simply reflects its terms.
Nor does the section require that the 'practice' to which s 5PB applies have any particular formality, in the form of a code of practice or prescribed method. It does not require, as the appellant characterised the approach in McKenna, 'some pre-existing library of practices that are dipped into from time to time'.[339]
[339] Appeal ts 131.
A widely accepted practice may well be a course of conduct widely followed, and observed, by competent peers, that is not to be found in a 'library of practices', but in the actual practice of competent practitioners.
Indeed, that was precisely the position in Bolam itself, which was concerned with 'a practice' (or 'technique' as McNair J also described it).[340]
[340] There was also a 'failure to warn' case in Bolam, which is, of course, wholly excluded from the scope of s 5PB by s 5PB(2).
In that regard, the practitioner whose conduct was in issue in Bolam, Dr Allfrey, had applied a technique of restraint in the application of electro-convulsive therapy (ECT) which involved 'arranging for the [patient's] shoulders to be held, the chin supported, a gag used, and a pillow put under his back'.[341] There was also evidence at the trial that, in addition to this practice, other practitioners used relaxant drugs or restraining sheets. There was therefore evidence of a variety of specific 'practices'.
[341] Bolam 586 (McNair J).
It was in this context that McNair J directed the jury:[342]
[I]t is not essential for you to decide which of two practices is the better practice, as long as you accept that what the defendants did was in accordance with a practice accepted by responsible persons.
[342] Bolam 587 - 588 (McNair J).
It can, therefore, be seen that Bolam involved 'a practice' of the kind contemplated by the approach in McKenna.
To take another example, in the present case there was evidence (which the learned trial judge accepted) that there was a widely accepted practice, namely that in 'burns cases antibiotics should not be given prophylactically'.[343] Accordingly, if there had been an allegation by the respondent that the appellant was negligent because reasonable care required that all burns patients should be administered prophylactic antibiotics, s 5PB(1) would have been fatal to such an allegation (unless the respondent could establish that s 5PB(3) applied).
[343] Primary reasons [803].
But that was not the negligent act or omission alleged in the present case. In the present case the alleged negligent act or omission was 'in failing to recognise that [the respondent] might be suffering from sepsis, in failing to test for sepsis and in not commencing her on antibiotics'.[344]
[344] Primary reasons [796].
Returning, then, to the passage in the Primary reasons impugned by ground 12 (at [344] above), it will be apparent that, far from that passage reflecting an erroneous construction of s 5PB(1), the learned trial judge simply reproduced the terms of the statutory text itself in the context of the particular conduct that his Honour had found to have occurred.
That is, to pose the question as being whether the respondent had proved that that conduct 'was not in accordance with a practice that was widely accepted by [the doctors in the burns ward's] peers as competent professional practice' was precisely what s 5PB of the Civil Liability Act required.
It discloses no error.
Ground 12 has not been made out.
In any event, before leaving this ground, we would observe that the distinction drawn by the appellant between 'a practice' and 'practice' is not one that would have affected the ultimate conclusion that his Honour reached in relation to the applicability of s 5PB to the respondent's claim.
In that regard it is to be recalled that the fundamental starting point for his Honour's findings on breach was his conclusion that it was beyond any doubt that, as a matter of fact, prior to the respondent's admission to the ICU 'no consideration was given by any of the doctors … responsible for her care and treatment to the possibility that her deterioration was due to sepsis'.[345]
[345] Primary reasons [794].
The failure to recognise that possibility was, in the circumstances of the case, sufficient for the respondent to discharge her onus of proof under s 5PB because, as his Honour found: [346]
[N]one of the medical witnesses who gave evidence suggested that it was widely accepted by peers of doctors working in a paediatric burns unit as competent professional practice to fail to recognise that a patient is, or might be, suffering from sepsis and in those circumstances to fail to test for sepsis and to fail to administer antibiotics.
[346] Primary reasons [800].
It may be observed that this conclusion holds true whether the failure to recognise that the respondent might be suffering from sepsis was 'a practice' or, simply, 'practice'.
Ground 13 - were Dr Numa and Professor Kesson relevantly 'peers'?
Ground 13 alleges that the learned trial judge erred in finding that for the purpose of s 5PB(l) of the Civil Liability Act, the relevant professional 'peers' included Dr Numa and Professor Kesson.
The 'finding' challenged by the appellant by ground 13 does not appear explicitly in the Primary reasons. That is, while the learned trial judge did express the relevant question as being whether the conduct of the doctors 'in the PMH burns ward' was in accordance with a practice which is widely accepted by 'their peers',[347] he did not expressly characterise Dr Numa and Professor Kesson as 'peers' in that sense.
[347] Primary reasons [714].
It may be that his Honour implicitly found this to be the case, given that his Honour expressly adopted the following views expressed by Sweeney DCJ in Wright v Minister for Health:[348]
As to who constitutes the medical professional's peers, I would construe that to mean members of a group of professionals who are charged with, or generally responsible for, making such decisions as the professional under scrutiny made. Part of a case for alleged negligence may include an allegation that a professional acted above their experience and level of responsibility, so the peers should not be confined to those at a level of the professional whose actions are being scrutinised, but should include those who are generally regarded as being the appropriate professionals to make such decisions.
[348] Wright v Minister for Health [2016] WADC 93 [87] (Sweeney DCJ). See Primary reasons [715].
In this regard, again, in relation to the question whether the respondent exhibited signs and symptoms sufficiently suggestive of infection such as to require that infection be considered by the treating doctors, the learned trial judge may have implicitly found that all of the relevant experts were persons who (in varying ways) were generally responsible for assessing such signs and symptoms - and could give relevant evidence in that regard.
If that were the case, in our view it would have been a finding that was open to the learned trial judge.
It is not necessary, however, to resolve that issue for the purposes of ground 13.
In that regard, again, the act or omission identified by the learned trial judge, and upon which the issue of breach was analysed, was the failure by the treating practitioners to consider the possibility that she might have sepsis. His Honour found that none of the expert witnesses suggested that it was competent professional practice to fail to do so. That finding itself is not challenged.
That it was not competent professional practice to fail to consider the possibility of infection was therefore supported by all of the expert evidence. There is no basis for challenging that finding.
Insofar as ground 13 makes a different submission and suggests that Dr Numa and Professor Kesson were not qualified to give evidence relevant to breach of duty of care, that submission must be rejected.
There was no challenge at trial to the expertise of each of Dr Numa and Professor Kesson to express the opinions that they did in relation to the treatment of the respondent and the signs exhibited by her which raised a suspicion of sepsis. As the learned trial judge found, all of the expert witnesses called by the parties were generally impressive and provided opinion evidence on the basis of which the learned trial judge was entitled to make findings, both for the purposes of s 5PB and, more broadly, for the purposes of s 5B.
Ground 13 has not been made out.
Ground 14 - application of s 5PB
Ground 14 maintains that, '[h]aving misconstrued s 5PB(1), his Honour did not consider the evidence that was relevant to the correct application of the provision'.[349] The ground of appeal alleges, in the particulars to the ground, that the only evidence of burns doctors at trial was that of Professors Kimble and Harvey and that they gave evidence that the treatment of the respondent was competent professional practice.
[349] Appellant's amended submissions [154]; WAB 38.
We have already concluded that the learned trial judge did not misconstrue s 5PB(1) and as such, ground 14 does not strictly arise.
For completeness, however, it is appropriate to address it in further detail.
The submissions in support of this ground of appeal appeared to characterise the relevant finding of breach as being the following conclusion at Primary reasons [801]:
In summary, in my opinion, the plaintiff has discharged her burden of proving that the alleged negligent conduct of the doctors who were responsible for her care and treatment while she was a patient in PMH's burns ward was not conduct that was in accordance with a practice that was, in December 2005, widely accepted by their peers as competent professional practice.
This was not the learned trial judge's finding of breach. Rather, this particular finding was his Honour's conclusion as to why s 5PB(1) was not applicable to the respondent's case. Indeed, his Honour immediately went on to say that the question remained whether the conduct of the doctors fell below the standard of care required of them.[350]
[350] Primary reasons [802].
That is, in the manner described in [327] to [329] above, the learned trial judge, having concluded that the respondent had disproved the application of s 5PB, went on to consider whether, in accordance with s 5B, the appellant was nevertheless in breach of its duty to take reasonable care. For the reasons given at in [327] to [329] above, his Honour was correct to proceed in this way.
The finding of breach, therefore, is that which follows at Primary reasons [803] to [805].[351] In those paragraphs it is clear that his Honour was applying the provisions of s 5B of the Civil Liability Act. The critical findings of fact leading to that finding of breach were:
(a)the signs and symptoms which the respondent had exhibited on 10 December 2005 should, by no later than around 2.00 am on 11 December 2005, have caused the team of doctors responsible for the respondent's care and treatment in the burns ward to recognise the possibility (that is, the foreseeable and not insignificant risk) that she did have evolving sepsis;
(b)in light of this possibility, the doctors should have taken a sample of her blood for culturing and to commence administering to her as quickly as was reasonably possible (say, within an hour) broad spectrum antibiotics pending the receipt of the results of the blood culture; and
(c)the downside of not administering antibiotics to a paediatric burns patient who on clinical grounds is suspected to be suffering from sepsis far outweighs the potential benefits of adopting such a course of action.
[351] See [87] to [88] above.
In making these findings of fact, which were relevant to the application of s 5B, the learned trial judge was entitled to have regard to all of the evidence before him. It is apparent from the Primary reasons that his Honour had regard to all of the expert evidence. He was entitled to do so.
To the extent that the appellant submitted that the learned trial judge could only have regard to the evidence of Professors Kimble and Harvey,[352] in making an assessment of the reasonable person's response to the risk of harm under s 5B, that submission must, again, be rejected. The identification of signs and symptoms of infection was a matter in relation to which experts from a variety of specialist fields were able to express opinions and which, without objection, they did.
[352] See the particulars to Ground 14; WAB 9; Appellant's amended submissions [156]; WAB 38.
The learned trial judge was not obliged to accept the evidence of Professors Kimble and Harvey. The findings that he made were not otherwise demonstrated to be ones that were made in error.
Ground 14 is not made out.
Ground 15 - finding of breach at 3.00 am on 11 December 2005
Ground 15 is expressed to be same challenge as ground 14, the difference only being 'as to the time of breach'.[353]
[353] Appellant's amended submissions [162]; WAB 38.
Unlike ground 14, the particulars and submissions in support of this ground do refer to the finding of breach found at Primary reasons [803] ‑ [805].
As with ground 14, however, they suffer from the same misconception as that ground, namely that the learned trial judge was in those paragraphs dealing with s 5PB, and the identification of a practice within the meaning of that section. His Honour was not. Rather, as has been explained and as was the proper course, his Honour was, in that part of the Primary reasons (having been satisfied that s 5PB was negatived by the respondent), applying the provisions of s 5B of the Civil Liability Act.
Ground 15 is not made out.
Ground 16 - challenge to the critical finding of fact on breach
Ground 16 challenges the following finding of fact:[354]
Having reviewed the PMH medical records relating to the plaintiff, I am satisfied beyond any doubt that prior to the plaintiff being admitted to the ICU no consideration was given by any of the doctors who, to that point, had been responsible for her care and treatment to the possibility that her deterioration was due to sepsis as opposed to fluid overload. All the references in the notes refer, in effect, to fluid overload as being the suspected cause of the plaintiff's deteriorating condition. There is no reference in the notes made by the doctors responsible for the plaintiff's care and treatment in the burns ward to sepsis as a possible differential diagnosis or indeed any reference to sepsis at all. I note in this regard that it was not suggested on behalf of the defendant that I could find on the evidence that the doctors in question did at any stage consider that the plaintiff's deterioration was due to sepsis as opposed to fluid overload.
[354] Primary reasons [794].
The finding is purely a finding of fact. It is the factual finding upon which the learned trial judge's conclusion in relation to s 5PB was based.[355]
[355] See [395] above.
The particular challenge brought by ground 16 is that the learned trial judge's finding was against 'the weight of the evidence'.[356] In oral submissions, the appellant went so far as to submit that it was 'plainly absurd'.[357]
[356] Particular (a) to Ground 16; WAB 10.
[357] Appeal ts 136.
As his Honour recorded, this was not the appellant's position at trial. On the contrary, at trial, the appellant did not suggest that the learned trial judge could find that the doctors did consider that the respondent's deterioration was 'due to sepsis as opposed to fluid overload'.[358]
[358] Primary reasons [794].
This final reference ('as opposed to fluid overload') is significant because, as his Honour found, the medical records did make reference to '? fluid overload' and 'Imp: fluid overload' as the possible explanation for the respondent's deterioration.[359] It is not the case, therefore, that the medical records were silent as to the matters considered by the staff in the burns ward: they specifically recorded one possibility and did not record the other.
[359] See e.g. GAB 101 - 103.
The appellant's expert witnesses confirmed in cross-examination that the medical records revealed no consideration of the possibility of sepsis until the respondent was transferred to the ICU.[360]
[360] Trial ts 107 - 108 (Dr Prebble), 205 - 206 (Professor Starr), 430 - 432 (Professor Harvey).
This was in contrast with the contents of medical records following the respondent's admission to ICU. The doctors at ICU identified and recorded infection and sepsis as a possible cause of the respondent's condition.[361] It could not, therefore, be said that sepsis was so obvious a differential diagnosis as to require no record.
[361] Trial ts 388; GAB 115.
There was, accordingly, a rational basis for the learned trial judge to place significance on the absence of any reference to sepsis in the respondent's medical records while she was being treated in the burns unit, in contrast to the references to fluid overload. It was not 'plainly absurd' to infer from the absence of any such record that sepsis was not actively considered at that time.
As for the 'weight of the evidence', there was in fact no other evidence to suggest that the doctors in the burns ward considered the possibility of sepsis as the cause for the respondent's deterioration.
It is not without significance that none of the doctors treating the respondent were called to give evidence that they had given consideration to the possibility that the respondent's deterioration was due to sepsis.
In its submissions, the appellant submitted that the respondent 'at trial did not invite any inference due to the [appellant] not calling any of the treating doctors in the burns unit'.[362] That is not correct. The respondent expressly made a submission to that effect, referring to Jones v Dunkel.[363]
[362] Appellant's amended submissions [171]; WAB 40.
[363] Jones v Dunkel (1959) 101 CLR 298; See Plaintiff's Outline of Closing Submissions dated December 2017 [8]; BAB 199 - 200. The respondent, on appeal, repeated the submission in support of a Jones v Dunkel inference in her notice of contention; WAB 108.
In any event, as we have said, there was no evidence that those doctors had considered the possibility of sepsis.
The only evidence that the appellant points to in this regard is the evidence of Professors Kimble and Harvey that infection is 'something which we always have to consider'.[364] That is not, however, evidence in relation to what the practitioners treating the respondent considered on 10 and 11 December 2005, or whether their attention was unreasonably focussed only on the possibility of fluid overload.
[364] Trial ts 310 - 311 (Professor Kimble). The Appellant's amended submissions [166]; WAB 39 also refer to Professor Harvey's evidence that differentiating inflammation from infection is a 'perennial problem faced by physicians'. This was in fact Dr Numa's evidence (see GAB 589 - 590) and one of the reasons for Dr Numa expressing the opinion that the signs and symptoms should not be looked at in isolation.
In this regard, the appellant's submissions sought to create something of a straw man, by submitting that his Honour had found that those treating the respondent had 'simply not known' or were 'unaware of the risk of infection'.[365] The learned trial judge's finding was not a finding of some generalised deficiency in the knowledge of those treating the respondent. It was a finding that, in the particular circumstances of the respondent's case, those treating doctors had not considered sepsis as a possible cause of deterioration on 10 and 11 December 2005.
[365] Appellant's amended submissions [166] - [167]; WAB 39 - 40.
The inference drawn by the learned trial judge was open to him and, in our view, was correct.
Ground 16 has not been made out.
Notice of contention
The respondent filed an amended notice of contention (the notice of contention) raising two issues, namely that:
(a)even if the appellant's construction of s 5PB was accepted, the result would not be different as the failure to recognise that the respondent might be suffering from sepsis would not be in accordance with widely accepted competent practice; and
(b)the inference that the doctors in the burns ward had not considered the possibility of sepsis as the cause for the respondent's deterioration was strengthened by the failure of the appellant to call any of those doctors.
We have already addressed (to an extent) the first contention, at [393] to [396] above and, in relation to the second contention, we are satisfied that the learned trial judge's finding at Primary reasons [794] was correct in any event.
Beyond that, it is not necessary for the purposes of determining this appeal to deal with the notice of contention.
Conclusion
For the above reasons, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan27 SEPTEMBER 2019
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