Christou v Minister for Health

[2008] WASCA 214

CHRISTOU -v- MINISTER FOR HEALTH [2008] WASCA 214

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 214
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:72/2007	Heard:	20 AUGUST 2008
Coram:	STEYTLER P PULLIN JA LE MIERE AJA	Delivered:	23/10/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	SABRINA COLLEEN CHRISTOU MINISTER FOR HEALTH
Catchwords:	Torts Medical negligence Causation Appeal from judgment dismissing claim for damages for personal injuries and associated losses Whether any inferences should be drawn from the unexplained failure of the respondent to call a particular person as a witness at trial Whether trial judge did not place proper weight on evidence of an expert witness Whether res ispa loquitur applies Turns on own facts
Legislation:	Nil
Case References:	Bennett v Minister of Community Welfare (1992) 176 CLR 408 Jones v Dunkel (1959) 101 CLR 298 Lafranchi v Transport Accident Commission (2006) 14 VR 359 Payne v Parker [1976] 1 NSWLR 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHRISTOU -v- MINISTER FOR HEALTH [2008] WASCA 214 CORAM : STEYTLER P

PULLIN JA
LE MIERE AJA

HEARD : 20 AUGUST 2008 DELIVERED : 23 OCTOBER 2008 FILE NO/S : CACV 72 of 2007 BETWEEN : SABRINA COLLEEN CHRISTOU

Appellant

AND

MINISTER FOR HEALTH
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

Citation : CHRISTOU v KING EDWARD MEMORIAL AND PRINCESS MARGARET HOSPITALS BOARD OF MANAGEMENT [2007] WADC 44

File No : CIV 2400 of 1997

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Catchwords:

Torts - Medical negligence - Causation - Appeal from judgment dismissing claim for damages for personal injuries and associated losses - Whether any inferences should be drawn from the unexplained failure of the respondent to call a particular person as a witness at trial - Whether trial judge did not place proper weight on evidence of an expert witness - Whether res ispa loquitur applies - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr A P Skerritt
Respondent : Ms C J Thatcher

Solicitors:

Appellant : Friedman Lurie Singh & D'Angelo
Respondent : State Solicitor for Western Australia

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

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Jones v Dunkel (1959) 101 CLR 298
Lafranchi v Transport Accident Commission (2006) 14 VR 359
Payne v Parker [1976] 1 NSWLR 191


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1 STEYTLER P: I agree with Le Miere AJA.

2 PULLIN JA: I agree with Le Miere AJA.

3 LE MIERE AJA: On 25 October 1996 the appellant underwent surgery at King Edward Memorial Hospital (King Edward) for a total abdominal hysterectomy. The appellant's consultant gynaecologist was Dr Harry Cohen. The surgery was carried out by a senior gynaecological registrar, Dr Sailesh Kumar Surendran (Dr Kumar). Dr Kumar removed the appellant's uterus and an ovary that was adherent to the back of the uterus. After the surgery the appellant was returned to the ward and initially appeared to make a routine recovery. On 27 October 1996 however the appellant was not well. Her condition deteriorated and she was transferred to Royal Perth Hospital. Following her transfer the appellant underwent a laparotomy performed by Mr Kevin Smith who found that the appellant had a perforated jejunum with peritoneal soiling - that is, leakage of intestinal fluid or material into the peritoneal cavity. The appellant developed intra-abdominal sepsis and underwent further surgical procedures on 29 October, 2 November, 7 November and 9 November 1996. She was very ill during her time at Royal Perth Hospital and remained in intensive care for some time.

4 The appellant brought an action against the respondent as the body corporate administering and controlling King Edward and the employer of Dr Kumar. The appellant alleged that the perforation of her jejunum and the injuries she suffered consequential upon it resulted from the negligence of the defendant or its employee, Dr Kumar. The jejunum is part of the small bowel and would normally be out of the operative field for a total abdominal hysterectomy. Perforation of the jejunum is a rare complication of a total abdominal hysterectomy. The trial judge dismissed the appellant's claim and she now appeals to this court.

Particulars of negligence

5 The appellant particularised the negligence of the respondent, its servants and/or agents, said to give rise to her injuries. The only particulars relevant to this appeal are that the respondent, its servants and/or agents:

(a) failed to take any, or any adequate care to avoid perforation of the appellant's jejunum; and

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(b) failed to take any, or any adequate steps to diagnose and/or treat and/or detect the perforation of the appellant's jejunum at the time of the operation.

6 At trial the appellant also alleged that the respondent, its servants or agents, negligently removed the wrong ovary and failed to warn the appellant of the likely risks and possible consequences associated with the hysterectomy procedure. The appellant also advanced other particulars of the defendant's alleged negligence in its treatment of the appellant. Apart from the two particulars set out earlier in this paragraph either the appellant did not press the allegations of negligence at trial or the trial judge found they were not made out and the appellant does not press them on appeal.

The appellant's medical history

7 The appellant was born on 30 September 1961 and was 35 years old at the time of the operation. On 15 October 1996 the appellant attended Dr Wong as an outpatient at King Edward. Dr Wong obtained from the appellant a medical history that she had undergone an appendectomy followed by further two laparotomies. Dr Wong noted that the appellant had undergone a dilation and curettage at Sir Charles Gairdner Hospital in November 1995 and that the appellant reported another laparoscopy undertaken at Glengarry Hospital and that there were 'few adhesions'. The appellant also mentioned an ectopic pregnancy. In that regard Dr Wong noted 'not sure what was done'. The appellant also made mention of a fibroid. The surgical procedures previously performed on the appellant gave rise to a likelihood of abrasions in her abdominal region.

8 The appellant is a Jehovah's Witness and her religion prohibited her from receiving blood transfusions or blood products. Dr Cohen and Dr Kumar were aware of that.

9 It is common ground that the appellant was a high risk patient for two reasons. First, the appendectomy and laparotomies which she had previously undergone gave rise to a likelihood of adhesions, usually bowel adhesions or adhesions between the bowel and the abdominal wall. The second factor was that she was a Jehovah's Witness and had signed not to receive blood products.

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The operation

10 Dr Kumar gave evidence of the operation he performed by referring to the operation record and his usual practice. After the appellant was anaesthetised Dr Kumar examined her vaginally and then catheterised her himself. He then made a transverse low abdominal incision. Once he had entered the abdomen Dr Kumar's practice was to put his hand into the abdomen to get an idea of how mobile the uterus is and whether there are any significant adhesions in the pelvis. He then gets the anaesthetist to put the patient slightly head down so that the bowel, with the aid of gravity, moves towards the upper abdomen and away from the field of surgery. The bowel is then carefully packed away with large moist packs so that it does not slide back into the pelvic cavity. The incision is held open with self-retaining retractors. When Dr Kumar is happy that the bowel has been packed away and he had got enough access to the pelvic organs he removes the uterus. In this case Dr Kumar removed an ovary that was adherent to the back of the uterus as well as the uterus itself. Dr Kumar then closed the vaginal vault. At that point he would check for haemostasis. That involved making a visual survey of the pelvis to see if there was any active bleeding. He would then check all the pedicles that he had made in order to remove the uterus and make sure that the sutures on those pedicles are tight and there was no possibility of a vessel slipping through those pedicles and there was no ooze or bleeding. Once he had done that and he was happy that there was no bleeding in the pelvis he took the packs out that were used to pack away the bowel. The patient is then flattened out and the bowel flops back into the pelvic cavity. The abdomen is then closed.

The trial judge's findings

11 The trial judge found, and it was common ground, that the jejunum was perforated in the course of surgery. The crucial question was what caused the perforation. The appellant submits that arising from the expert testimony at trial there were three competing hypotheses as to how the perforation may have occurred:

(1) as a result of the bowel being nicked by a scalpel;

(2) as a consequence of blunt trauma being applied to the jejunum, such as a surgical retractor; or

(3) as a consequence of a bowel adhesion being torn when the bowel was being packed away to clear the surgical field.

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12 The trial judge found that the most probable explanation for the perforation of the jejunum is that there was a tear or perforation of the jejunum during the course of packing away the bowel resultant upon the necessary movement of the bowel, including the jejunum, in that process. The trial judge found that it was most likely that the tear or perforation was associated with a pre-existing adhesion, probably to the abdominal wall following earlier surgery. The trial judge found that it did not result from contact with a sharp surgical instrument employed during surgery by Dr Kumar. Further, the trial judge found that, on the balance of probabilities, the tearing or perforation of the jejunum occurred in circumstances which were not readily observable by Dr Kumar and were not observed by him. The trial judge found that Dr Kumar conducted the surgery in a careful and appropriate manner and that the perforation of the jejunum was not the consequence of any lack of care or negligence on the part of Dr Kumar. His Honour accepted that movement of the bowel in the form of the packing away of the bowel was necessary and appropriate for the purpose of the surgery upon the appellant. Finally, his Honour concluded that Dr Kumar's failure to detect the perforation depended upon the immediate appearance of leakage of bowel contents and was not the result of negligence or lack of care on Dr Kumar's part.

13 The appellant appeals against the dismissal of her claim on six grounds. I will consider each in turn.

Ground 1

14 Ground 1 is:

Having found that the appellant's jejunum was perforated in the course of the surgery on 25 October 1996 (reasons [73]), the learned trial judge erred in fact in finding that the cause of the perforation of the appellant's jejunum was the tearing of a bowel adhesion in the course of packing away the bowel (reasons [110]) and not by blunt trauma or 'nicking' by a surgical instrument in the course of the hysterectomy surgical procedure (reasons [108]).

15 The appellant relies on three matters to assert that the learned trial judge was in error in finding that the cause of the perforation of the appellant's jejunum was the tearing of a bowel adhesion in the course of packing away of the bowel. These three matters are the failure of the respondent to call Mr Kevin Smith, the relative weight of Dr Malloy's evidence to that of the other experts and the lack of evidence of adhesions in the appellant's abdomen.

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Failure to call Mr Kevin Smith

16 The appellant submits that when considering the competing theories as to how the perforation of the jejunum occurred, the trial judge failed to give proper regard to the failure of the respondent to call Mr Kevin Smith. The appellant submitted that in reaching a conclusion as to how the perforation of the jejunum occurred his Honour should have noted the absence of Mr Smith's testimony and applied the rule in Jones v Dunkel (1959) 101 CLR 298, drawing the inference that the unexplained failure by the respondent to call Mr Kevin Smith may, in the present circumstances, lead to the inference that the uncalled evidence would not have assisted the respondent's case.

17 The so called rule in Jones v Dunkel is a principle of the law of evidence whereby a particular form of reasoning is authorised: Payne v Parker [1976] 1 NSWLR 191. Glass JA stated that whether the principle can or should be applied depends upon whether the conditions for its operation exist (201). These conditions are:

(1) the missing witness would be expected to be called by one party rather than the other;

(2) his evidence would elucidate a particular matter; and

(3) his absence is unexplained.

18 In the present case it might be assumed that the first condition could be established although there is precious little evidence of the relationship between Mr Kevin Smith and the respondent. The real question is whether the second condition is satisfied. As to this requirement, Glass JA remarked:

According to [Wigmore on evidence (3rd ed, 1940)], the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him (202) (citations omitted).

19 In this case, the second condition is not satisfied. There is no evidentiary basis which supports the appellant's contention that Mr Smith
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could have 'potentially given evidence as to how the perforation occurred'. Mr Smith's operation notes were in evidence before the trial judge. Mr Smith recorded his findings at operation:

Upper small bowel contents free fluid.

Perforation mid jejunum.

Adhesions to mid line wound divided.

Over sown perforation.

20 A letter of 17 December 1996 from Mr Smith to the appellant's general practitioner was also in evidence. There is nothing in that letter that touches upon the cause of the perforation of the jejunum. There is nothing in the hospital notes which identifies a possible cause of the perforation. None of the expert medical witnesses said that Mr Smith, as the surgeon who repaired the perforation, would have been able to tell from an examination of the bowel how the perforation occurred. In the absence of such evidence it is mere speculation that Mr Smith could have 'potentially given evidence as to how the perforation occurred'.

21 If, contrary to my opinion, an inference adverse to the respondent should have been drawn from its failure to call Mr Smith to give evidence, the only inference that could be drawn is that the evidence of Mr Smith would not have helped the respondent. That is, the failure of the respondent to call Mr Smith would have permitted an inference that his evidence would not have helped the respondent and entitled the trial judge to take that into account in deciding whether to accept any particular evidence which relates to the matter on which Mr Smith could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the respondent being able to prove the contrary had it chosen to call the evidence of Mr Smith. However, the principle does not permit an inference that the untendered evidence would in fact have been damaging to the respondent. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness from being drawn. Other evidence may justify the drawing of the inference: Cross on Evidence (7th Aust ed, 2004) [1215].

The proper weight of the expert opinion evidence

22 The appellant called two medical experts. The first expert, Dr Molloy is an obstetrician and gynaecologist. At the time of giving evidence he held a number of current hospital appointments. He ceased

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practice in obstetrics in January 2000 after 34 years practice and then practised only in gynaecology. The trial judge observed that Dr Molloy was well qualified to give expert evidence in the field of obstetrics and gynaecology. In his report of 22 December 2005 Dr Molloy said that there is a 'strong possibility that the bowel was "nicked" during the procedure'. In his written reports and in his oral evidence Dr Molloy said that he was not sure exactly how the perforation of the jejunum occurred and it may have occurred other than from being 'nicked' during the procedure. However, the trial judge observed:

Obviously Dr Malloy was of the belief that Dr Kumar had nicked the jejunum during the course of surgery, perforating it [79].

23 The appellant submits that Dr Molloy was the only expert witness in general obstetrics and gynaecology and that his field of expertise was the same filed of practice as the medical practitioners who performed the surgery upon the appellant. The experts called by the respondent were Professor House, who was a consultant general surgeon, and Mr Allen, a gynaecological oncologist. The appellant also called a consultant general surgeon. The appellant submitted that the trial judge erred in not accepting the evidence of Dr Molloy as to the likely cause of the perforation of the jejunum. The appellant submitted that the trial judge should have accepted the evidence of Dr Molloy because he was the only expert witness in general obstetrics and gynaecology. The appellant accepted that Dr Cohen, who was called to give evidence by the respondent, was an obstetrician and gynaecologist with comparable experience to Dr Molloy but submitted that Dr Cohen was not an independent witness.

24 The trial judge made his finding as to the cause of the perforation of the jejunum by considering the opinions of each of the expert witnesses, the reasoning of each of those witnesses, the evidence of Dr Kumar and Dr Cohen of the operation, the evidence of the appellant's previous surgery and the medical records of the appellant's post-operative recovery and treatment and of the further surgery performed by Mr Smith.

25 The trial judge accepted Dr Kumar's evidence that he found no bowel adhesions and was not required to dissect bowel adhesions in the course of the hysterectomy. The trial judge accepted the evidence of Dr Kumar that he undertook the careful packing away of the bowel into the upper abdomen removing it from the field of operation. The trial judge accepted that there was some possibility that a portion of bowel protruded around the packs during the surgery and was perforated by the use of a sharp

(Page 10)

surgical instrument. However, the trial judge accepted the evidence of Dr Kumar that if a portion of bowel had protruded around the packs during the surgery he would stop the operation and repack the bowel. Having accepted that evidence the trial judge concluded that a portion of the bowel protruding around the packs during surgery and being perforated by the use of a sharp surgical instrument was not a likely cause of the perforation of the jejunum. The trial judge found that there were bowel adhesions in the appellant's abdominal region which were moved by Dr Kumar in the course of packing away of the bowel, including the jejunum, from the field of surgery. The trial judge concluded that the most probable explanation for the perforation of the jejunum is that there was a tear or perforation of the jejunum during the course of packing away the bowel resultant upon the necessary movement of the bowel in that process. Most likely that tear or perforation was associated with a pre-existing adhesion, probably to the abdominal wall following earlier surgery. That finding was supported by the evidence of Professor House, Professor Allen, Dr Cohen and Dr Kumar. The finding was open to the trial judge on the evidence.

26 The nature and quality of the expertise of an expert witness are relevant matters for the judge in determining the weight of the evidence. However, the trial judge is not obliged to accept the opinion of an expert witness on the grounds that the witness is the most qualified or most experienced expert or the expert with the most experience in the relevant area of expertise. The judge must make a finding based on the whole of the evidence. The trial judge made no error in failing to accept the opinion of Dr Molloy.

Absence of evidence of adhesions at site of perforation

27 The appellant submits that the trial judge's finding that the perforation of the appellant's jejunum was caused by tearing of an adhesion in the course of packing away the bowel is based upon an assumption that there were adhesions at the site of the perforation and there was no evidence of adhesions at the site of the perforation.

28 This ground of appeal is incorrect. There was evidence from which it was open to the trial judge to make his finding. There was evidence that adhesions would be expected given the appellant's previous abdominal surgery. That was accepted by the four independent medical expert witnesses Dr Molloy, Professor Ham, Professor House and Professor Allen. Dr Kumar recorded the presence of adhesions on the hospital operation record. Professor House referred to a CAT scan which he

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interpreted to show the adhesion of bowel to the anterior abdominal wall. Furthermore, the Royal Perth Hospital records of the operation performed by Mr Smith records the findings to include: 'Perforation mid-jejunum' and 'adhesions to mid-line wound divided'.

29 Ground 1 is not made out.

Ground 2

30 Ground 2 is that the trial judge erred in fact and law in finding that the respondent showed no lack of care in the course of performing the surgery and perforating the appellant's bowel and that the respondent took adequate steps to inspect the appellant's abdomen, or take any steps to detect the perforation of the appellant's jejunum prior to concluding the surgical procedure performed on the appellant.

31 This ground in part is dependant upon upsetting the finding by the trial judge that the perforation occurred as a consequence of a torn adhesion during packing away of the bowel. To that extent, this ground fails.

32 The appellant further submits that in any event the evidence presented by Professor Ham was:

before any closure of any abdominal wound, I think there should be an exploration of the abdomen, at least putting a hand into the abdomen to make sure that there were no packs or whatever left behind, in other words, there's a routine prior to closure that ensures that that doesn't happen.

33 There is no evidence that Dr Kumar did not undertake a routine examination of the operative field before closing the abdomen with staples. Dr Kumar said that after removing the uterus and ovaries, he would 'check for haemostasis and make sure there wasn't any excessive bleeding'. He said that involved 'a visual survey of the pelvis to see if you've missed any vessels that are actively bleeding'.

34 Furthermore, Professor Ham did not say, and there was no other evidence, that an inspection of the sort he described would have detected the perforation if, as found by the trial judge, it had occurred when the bowel was being packed away as a result of an adhesion tearing.

35 The appellant submitted that 'perhaps the most telling evidence' was Dr Kumar's agreement in cross-examination with the proposition that there would be no perforation of the jejunum if there was careful surgery.

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The learned trial judge considered that evidence in light of the whole of the evidence. The evidence included Dr Kumar's answer in re-examination when he was asked whether there was any part of the surgery performed by him on the appellant which was not carefully performed. He said that there was not. Furthermore, each of the independent medical expert witnesses agreed that the perforation of the jejunum may have occurred without any negligence or lack of care by Dr Kumar.

36 Ground 2 is not made out.

Ground 3

37 Ground 3 is that having accepted the proposition that the appellant was a high risk patient the trial judge erred in fact in finding that that fact did not necessitate that Dr Kumar should have been supervised by a consultant scrubbed and attending to that surgery.

38 The trial judge found in effect that whether or not a registrar should have been allowed to perform the hysterectomy on the appellant, given her high risk status, depended upon the skill and experience of the registrar. It was open to his Honour to so find on the evidence. The trial judge found, in effect, that the skill and experience of Dr Kumar was such that the defendant exercised no lack of care in permitting him to undertake the operation without being supervised by a consultant scrubbed and attending throughout. It was open to his Honour to so find. Dr Kumar was a senior registrar. Dr Cohen said that he was well known at the hospital and highly regarded. Dr Kumar had completed his training in the United Kingdom and reached consultant status there. Those findings were open to the trial judge.

39 Furthermore, the trial judge found that the perforation of the jejunum did not occur in circumstances where it would have been detected by the surgeon. His Honour concluded that had there been a consultant present scrubbed and at the operating table, the perforation of the appellant's jejunum would not, in any event, have been detected. It was open to his Honour to so find.

40 Ground 3 is not made out.

Ground 4

41 Ground 4 is that the trial judge erred in fact and law in finding that the perforation of the appellant's jejunum was not caused or materially contributed to by the respondent's negligence, particularly the respondent

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failing to take any or adequate steps to avoid perforation of the appellant's jejunum and failing to take any or adequate steps to detect the perforation at the time of the operation.

42 In support of this ground of appeal the appellant relies upon the principle that if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury: see Bennett v Minister of Community Welfare (1992) 176 CLR 408, 420 - 421.

43 The appellant relies upon the principle referred to, to establish a breach of duty by the defendant. However, the principle relied on relates to the establishment of causation once a breach of duty is proved. The principle does not assist the appellant in establishing a breach of duty.

44 Ground 4 is not made out.

Ground 5

45 Ground 5 is that the respondent chose not to call the surgeon who surgically repaired the perforation of the appellant's bowel and in the absence of any definite explanation by the respondent as to how the perforation of the appellant's bowel occurred and in view of the evidence before the trial judge, the trial judge erred in law in failing to 'allow the facts to speak for themselves', leading to the conclusion that the perforation, and failure to detect the perforation, of the appellant's bowel was the result of the negligence of the respondent.

46 The appellant relies upon the maxim 'res ipsa loquitur'. Res ipsa loquitur is no more than a convenient label to describe situations where, notwithstanding the plaintiff's inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient in the absence of an explanation to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury. The maxim contains nothing exceptional; it is based on commonsense, since it is a matter of ordinary observation and experience in life that sometimes a thing tells its own story: Fleming J G, The Law of Torts (9th ed, 1998) 353.

47 If an accident is open to two or more hypotheses, some consistent, others inconsistent with the defendant's negligence, and the evidence does not establish a hypothesis consistent with the defendant's negligence to be more likely than not, then the plaintiff has not discharged the onus

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incumbent on the plaintiff of proving the issue on the balance of probabilities: see Lafranchi v Transport Accident Commission (2006) 14 VR 359. In this case, each of the expert witnesses agreed that perforation of the jejunum or bowel could occur without negligence or could happen to even the most experienced surgeon. Furthermore, the trial judge accepted Dr Kumar's evidence that he had performed the operation carefully. The maxim res ipsa loquitur does not apply in this case.

48 Ground 5 is not made out.

Conclusion

49 For the reasons stated, none of the grounds of appeal are made out and the appeal must be dismissed.