Fisher v Stapley
[2005] WASCA 16
•9 FEBRUARY 2005
FISHER -v- STAPLEY [2005] WASCA 16
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 16 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:7/2004 | 11 NOVEMBER 2004 | |
| Coram: | MALCOLM CJ MCLURE J SIMMONDS J | 9/02/05 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Notice of contention upheld | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP FISHER GLENN ALLAN STAPLEY |
Catchwords: | Negligence Finding of failure to warn of the risk of surgery Effect of tender of opposing parties' answers to interrogatories Whether a finding inconsistent with answers to interrogatories open Adequacy of reasons Whether negligent in the conduct of surgery Turns on own facts |
Legislation: | Nil |
Case References: | Gannon v Gannon (1971) 125 CLR 629 Jackamarra v Krakouer, unreported; FCt SCt of WA; Library No 9807035; 21 December 1998 Kabadanis v Panagiotou (1980) 47 FLR 221 Tomic v Limro Pty Ltd (1993) 47 FCR 414 Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16 Endeavour Wines Ltd v Martin and Martin (1948) 92 SJ 574 Abalos v Australian Postal Commission (1990) 171 CLR 167 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FISHER -v- STAPLEY [2005] WASCA 16 CORAM : MALCOLM CJ
- MCLURE J
SIMMONDS J
- Appellant
AND
GLENN ALLAN STAPLEY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : STAPLEY -v- FISHER [2003] WADC 278
File No : CIV 3150 of 2001
Catchwords:
Negligence - Finding of failure to warn of the risk of surgery - Effect of tender of opposing parties' answers to interrogatories - Whether a finding inconsistent
(Page 2)
with answers to interrogatories open - Adequacy of reasons - Whether negligent in the conduct of surgery - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Notice of contention upheld
Category: B
Representation:
Counsel:
Appellant : Mr J R B Ley
Respondent : Mr G Droppert
Solicitors:
Appellant : Clayton Utz
Respondent : Hoffmans
Case(s) referred to in judgment(s):
Gannon v Gannon (1971) 125 CLR 629
Jackamarra v Krakouer, unreported; FCt SCt of WA; Library No 9807035; 21 December 1998
Kabadanis v Panagiotou (1980) 47 FLR 221
Tomic v Limro Pty Ltd (1993) 47 FCR 414
(Page 3)
Case(s) also cited:
Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16
Endeavour Wines Ltd v Martin and Martin (1948) 92 SJ 574
Abalos v Australian Postal Commission (1990) 171 CLR 167
(Page 4)
1 MALCOLM CJ: In my opinion, this appeal should be dismissed and the respondent's notice of contention upheld for the reasons to be published by McLure J with which I am in complete agreement.
2 MCLURE J: The appellant, Mr Phillip Fisher, is an ear, nose and throat surgeon. On 10 March 2000 the appellant performed surgery to relieve a blockage in the respondent's left sinus. The procedure is called an antrostomy. As a result of the surgery, the respondent, Mr Glenn Stapley, suffered, among other things, disruption of the left orbital floor with displacement of orbital muscles, enophthalmos (the falling back of the eye into the socket) and post-operative double vision. The respondent required plastic surgical repair of the left orbital floor with a cranial bone graft.
3 The learned trial Judge found that the appellant was negligent by reason of his failure to warn the respondent that a risk of the surgery was damage to his vision. The trial Judge dismissed the respondent's further claim that the appellant was negligent in damaging the floor of the orbit in the course of the surgery.
4 The appellant contends the trial Judge erred in finding that he had failed to warn of the risk of damage to the respondent's vision. By notice of contention the respondent claims the trial Judge erred in dismissing his claim that the surgery was negligently conducted.
Background
5 The respondent consulted the appellant at the appellant's rooms on 11 August 1999. After conducting a physical examination, the appellant advised the respondent of the nature and risks of the surgery. The respondent's evidence was that the appellant did not advise him of the risk of impairment to his vision. At the consultation the respondent was provided with a document which sets out some of the risks of the surgery but not the risk of impairment of vision. The appellant gave evidence at trial that he orally advised the respondent of that risk at the August 11 consultation.
6 In the course of the respondent's case at trial, his counsel tendered in evidence answers given by the appellant to interrogatories as to the content of the oral warning he gave to the respondent. The answers to the interrogatories are consistent with the appellant's oral evidence at trial.
7 The trial Judge accepted the respondent's evidence and found that the appellant did not warn the respondent of the risk of damage to his vision
(Page 5)
- associated with antrostomy surgery. This finding is challenged in the first two of five grounds of appeal. In particular, the appellant claims that:
(a) as a result of the tender of the interrogatories as part of the respondent's case, it was not open to the trial Judge to make the finding that the appellant did not give the warning or he could not make such a finding without having regard to the answers to interrogatories and without saying why no weight should be attached to them or less weight should be attached to them than to the respondent's evidence;
(b) it was not open to the trial Judge to find that the appellant did not, through an oversight on his part, give the warning.
8 As explained by counsel for the respondent, who was counsel at the trial, he used the appellant's answers to interrogatories as a means of eliciting from the respondent and the expert called by the respondent their response to the appellant's case that a warning as to the risk of damage to vision was given and that it was adequate. Regardless of counsel's purpose, the appellant's answers to interrogatories were tendered and admitted without limitation and thus was evidence for all purposes. Accordingly, at the close of the respondent's case there was evidence from the respondent denying that the appellant gave the warning and the appellant's answers to interrogatories to the effect that the warning was given. Thereafter the appellant gave evidence in examination-in-chief and in cross-examination of the fact and content of the warning which evidence was consistent with his answers to interrogatories.
9 There is no basis in principle or support in the authorities for the appellant's contention that, as a result of the respondent tendering the appellant's answers to interrogatories, it was not open to the trial Judge to find that the appellant did not give the warning. Answers to interrogatories are simply evidence, being neither formal admissions nor conclusive evidence: Gannon v Gannon (1971) 125 CLR 629; Jackamarra v Krakouer, unreported; FCt SCt of WA; Library No 9807035; 21 December 1998; Kabadanis v Panagiotou (1980) 47 FLR 221. The role of the Court is to consider and weigh all relevant evidence properly adduced at trial: Tomic v Limro Pty Ltd (1993) 47 FCR 414 at 422 - 423.
(Page 6)
10 There is also no merit in the contention that the trial Judge erred in not having regard to the appellant's answers to interrogatories and in not giving reasons as to why no weight or less weight should be attached to them than to the respondent's evidence. The trial Judge's analysis leading to the relevant finding is as follows:
"There was nothing about the demeanour of Mr Stapley or Mr Fisher when they gave their evidence which assisted me to resolve the issues between them. They each appeared to be honest witnesses who were doing their best to give evidence about what occurred at the consultation on 11 August 1999 as accurately as possible.
The surgery took place approximately seven months after the consultation. Until Mr Stapley developed double vision immediately after the surgery there was no reason for either Mr Stapley or Mr Fisher to recall what was said at the consultation and there is no evidence that either of them endeavoured to do so in that period.
Mr Stapley first consulted a solicitor in approximately April 2001 and that was the first occasion that he endeavoured to cast his mind back to what Mr Fisher had told him at that consultation. Although that was approximately 20 months after the consultation Mr Stapley's evidence was that he had no difficulty recalling what was said by Mr Fisher. In view of the periods to which I have referred I have considered whether it is likely that Mr Stapley can recall what was said at the consultation. As the consultation was an unusual event in Mr Stapley's life which led to a significant decision, namely to have surgery, I do not find it implausible that Mr Stapley can recall what Mr Fisher told him at the consultation.
As I have noted Mr Fisher made no note that he provided any warning to Mr Stapley of the risks of the surgery and the absence of a note was an exception to his usual practice. I have also noted earlier Mr Fisher's evidence was that he recalled seeing Mr Stapley and could remember his interest in scuba diving and the fact that the day was busy.
I accept that Mr Fisher can recall that he had a consultation with Mr Stapley and that he had a busy day. Mr Fisher has approximately 80 consultations a week. Given the very large
(Page 7)
- number of consultations that he has had since 11 August 1999 and the large number he had between the initial consultation and the surgery, I consider it unlikely that Mr Fisher can recall with any detail what he said to Mr Stapley. I am confirmed in this view by the manner in which Mr Fisher gave his evidence of the warning he gave which was expressed in terms of his usual practice, not in terms of what he said to Mr Stapley and the fact that Mr Fisher confirmed that he did not remember the exact words that he used.
In considering what is likely to have occurred at the consultation I bear in mind that when a person such as Mr Fisher has a routine procedure there is a likelihood that the routine procedure will be followed. However in this case there was an aspect of Mr Fisher's practice that clearly was not followed by him because he made no note that he gave the warning. I conclude on the balance of probabilities that through an oversight on his part caused by how busy he was on that day Mr Fisher did not inform Mr Stapley of the risk of damage to his vision resulting from antrostomy surgery. I accept Mr Stapley's evidence of what Mr Fisher told him at the meeting."
11 The absence of express reference in the reasons to the respondent's answers to interrogatories does not establish that the trial Judge failed to consider them. In any event, the Court's obligation to consider and weigh all relevant evidence does not require that separate consideration or reasoned analysis be given to all separate sources and occasions on which the substance of the evidence of a witness is repeated unless there is something of evidentiary significance in the timing or occasion of its repetition. The appellant's answers to interrogatories add nothing of evidentiary significance to the appellant's evidence at trial.
12 The final matter is the appellant's contention that it was not open to the trial Judge to find that "through an oversight" the appellant did not give the warning when the respondent had adduced evidence that the warning was given (by way of tender of the appellant's answers to interrogatories), the appellant had given oral evidence that he had given a warning and the trial Judge accepted the appellant as being an honest witness doing his best to give evidence about what occurred as accurately as possible.
(Page 8)
13 I would also dismiss this challenge. There was a conflict of evidence and the trial Judge conscientiously compared the evidence with the unchallenged facts and resolved the conflict by reference to matters impacting upon the inherent probabilities in the circumstances as a whole. It was clearly open on the objective probabilities for the trial Judge to accept the respondent's evidence and find that no warning was given.
14 The remaining grounds of appeal relate to the adequacy of the warning in the event this Court upheld grounds 1 and 2. As the appellant has been unsuccessful in that regard, it is unnecessary to deal with these grounds. In any event, the respondent conceded that if the appellant's evidence as to the fact and content of the warning was accepted, no issue arose as to the adequacy of the warning.
15 There remains the respondent's notice of contention. Although it is unnecessary to determine that matter, it was fully argued and I propose to deal with it.
Notice of Contention
16 In addition to the claim based on a failure to warn, the respondent claimed the appellant was negligent in intra-operatively disrupting (fracturing) the floor of the left orbit leading to the displacement of the respondent's left orbital and left inferior orbital muscles and double vision. It was admitted that the appellant damaged the floor of the orbit in the course of the surgery.
17 Each of the appellant and the respondent adduced expert evidence from medical practitioners with experience as ear, nose and throat surgeons. The respondent called Dr Joseph Scoppa and the appellant called Professor Peter Wormald.
18 The respondent had an obstruction of the left antrum. The antrum (also known as the maxillary sinus) is a cavity below the eye (or orbit). The natural opening (ostium) to the respondent's left antrum was obstructed with the result that there was an accumulation of material within the antrum. The roof of the antrum is the floor of the orbit. The purpose of the surgery is to display and, if necessary, clear the ostium. There are three main structures that hide the ostium, being the middle turbinate, the bulla and the uncinate process. The surgery involves pushing the middle turbinate out of the way to obtain access to the bulla and the uncinate process which are then surgically removed. Any other obstructive structure such as a polyp is also removed in order to display the ostium.
(Page 9)
19 The bulla is attached to the side (medial) wall of the orbit. The bulla is attached to bone called the lamina papyracea ("lamina"). The eye is encased in a lining called periosteum. If during the course of the surgery the lamina on which the bulla lies is removed and the periosteum is penetrated, bleeding in the eye and impairment of vision can result. The uncinate process is also attached to the side wall of the orbit and the lamina. Its removal has the same potential complications as removal of the bulla. It was the risk of impairment to the vision as a result of damaging the lamina and thus the eye that both experts agreed required a warning of the risk of vision impairment associated with the surgery.
20 However, in the case of the respondent, the damage to his vision resulted from damage to the floor of the orbit which is in continuation with the lamina. There was a conflict of expert opinion as to whether damage to the floor of the orbit could ever be occasioned without negligence in the course of an antrostomy.
21 In Dr Scoppa's opinion, there is no need for a surgeon to go near the floor of the orbit in the course of carrying out an antrostomy. Although it is necessary to use suction tools to remove secretions in the antrum, there is no need for those tools to go near the floor of the orbit because the secretions are at the floor of the antrum, not at its roof (being the floor of the orbit). According to Dr Scoppa, disruption of the floor of the orbit is not a known complication of antrostomy surgery and if a surgeon is exercising reasonable care, damage to the floor of the orbit should not occur.
22 Professor Wormald's opinion was that damage to the floor of the orbit is a possible complication of antrostomy surgery performed with reasonable care even by a most senior and experienced surgeon. However, he clearly identified the particular circumstances in which that would be the case.
23 Both experts agreed that, in the ordinary course of an antrostomy, curved suckers are put through the ostium to remove material from the antrum once the opening has been established. It is clear from Professor Wormald's evidence, particularly in cross-examination, that use of the suckers for this purpose could not result in damage to the floor of the orbit without the absence of reasonable care. The situation in which damage to the floor of the orbit can occur without negligence is where the suckers are being used, in effect, as a probe. He explained it in this way:
(Page 10)
- "It's still necessary under certain circumstances when the natural opening [ostium] cannot be located to use a suction to try and attempt to locate it. The suction is beneficial in the fact that it can clear the blood away from the surgical field so you can see more by removing the blood with the tip of the suction. You can then use the suction as a probe to try and establish exactly where the ostium is but still even when that's done, the final pushing of the probe, the suction tip into the maxillary sinus, is still in a large number of cases done blindly."
24 In Professor Wormald's opinion, force is sometimes required to push the sucker through the ostium which can result in a fracture of the floor of the orbit. He said:
"I would suggest that if the maxillary ostium is diseased and you need to push the sucker through, sometimes force is required to actually pass the sucker through that maxillary ostium. If it's very diseased it can be quite cyanose and quite narrow and the force that's required just to push it through once the sucker passes that and overcomes that obstruction is travelling at significant speed. The sucker then can strike the orbit and it can cause a fracture."
25 Aside from using a sucker as a probe to push past the ostium into the antrum, he saw no other basis for the use of the force necessary to fracture the floor of the orbit. As Professor Wormald said in cross-examination:
"But leaving aside the position where using the sucker as a probe to push your way through - - -?---Yes, I can't see that sufficient force - once you can see the maxillary sinus there's no reason why you would fracture the sinus under those circumstances.
So it doesn't matter how bloody or pusy or whatever it is - - -?
---No, there's no reason because you can use the sucker to - - -
Of course, of course?---Under those circumstances there's no reason to apply force to the sucker."
26 The trial Judge concluded that the respondent had not proved that in disrupting the floor of the orbit the appellant had failed to exercise reasonable care and skill. His reasons for that conclusion are as follows:
(Page 11)
- "It is not known precisely how the floor of Mr Stapley's orbit was damaged in the surgery. I accept the evidence of Dr Scopa [sic] that there is no need for a surgeon intentionally to have tools at the floor of the orbit when carrying out antrostomy surgery. However it was necessary for Mr Fisher to use a suction tool when carrying out the surgery and to do so in an area which was obstructed.
I accept the evidence of Professor Wormald that the force required to turn the suction tool in an obstructed area can be sufficient to disrupt the floor of the orbit and that this can occur without any lack of care or skill by the surgeon. I do not accept Dr Scopa's [sic] opinion that if a surgeon exercises reasonable care damage to the floor of the orbit should not occur. In view of the limited space in which the surgeon must work, the obstructions that the surgeon is likely to encounter and the limitations of visibility it is possible for a surgeon exercising reasonable care and skill inadvertently to damage the floor of the orbit.
In my view it is likely that while using a suction tool Mr Fisher damaged the floor of Mr Stapley's orbit without appreciating that he did so. I accept that such damage can occur without a failure by the surgeon to exercise reasonable care and skill. On the facts that have been established Mr Stapley has not proved that in disrupting the floor of the orbit Mr Fisher failed to exercise reasonable care and skill."
27 The trial Judge does not clarify whether he is referring to the use of the suction tool before, at, or after penetrating the ostium. Further, Professor Wormald did not give evidence to the effect that the force required to turn the suction in an obstructed area can be sufficient to disrupt the floor of the orbit. The thrust of his evidence as a whole is that it is only in using the suction tool either to locate or secure entry through the ostium that justifies the use of force sufficient to fracture the floor of the orbit.
28 The respondent contends that the appellant's evidence as to the course of the surgery is inconsistent with damage having been caused in the way identified by Professor Wormald. The appellant was asked in evidence-in-chief, "Where did you put the sucker?" The answer was:
(Page 12)
- "Through the ostium, the hole I had created, and there was a bit of blood and bloodstained mucous [sic] and rubbish in there, sucked that out, put some adrenal-soaked gauze."
29 He later said:
"Yes, [I] put the sucker through to clean any blood and mucous [sic] out of the sinus, out of the region of the uncinate process at the back of the nose …".
30 It is apparent from this evidence that he only used the suction tool for its usual purpose. There is no suggestion in the appellant's evidence that he used the suction tool or any other instrument as a probe. The appellant was asked whether there was any difficulty when he put the sucker in. His answer was, "I don't recall any." As to the time spent in using the sucker, the appellant said 10 seconds. His evidence was that the surgery was straightforward, an assessment confirmed by the time it took. The clear inference from the appellant's evidence is that the procedure was straightforward and without any of the difficulties in locating or opening the ostium that can result from obstructions and disease and which can necessitate or justify using the suction tool (or, I infer, indeed any other instrument) as a probe with such force as could damage the floor of the orbit.
31 In summary, the experts agree that impairment of vision is a risk of surgery and can occur without negligence. Dr Scoppa's opinion was that such impairment can occur without negligence when it results from removal of the bulla or the uncinate process but not when it results from damage to the floor of the orbit. Professor Wormald goes further. He says impairment of vision can occur without negligence when there has been damage to the floor of the orbit. However, that is limited to the circumstance he describes, that is, where it is appropriate to use force to either locate or secure entry through the ostium into the antrum. The clear inference from the appellant's evidence was that no such force was required and that he used the suckers for the purpose for which they are generally intended. The trial Judge did not make a finding as to whether or not he rejected the appellant's evidence on this subject. However, the indications are that he regarded the appellant as an honest witness. His evidence is uncontradicted and it is unlikely he would be mistaken on that subject.
32 It appeared to be the appellant's contention that the respondent had failed to negative all theoretical possibilities by which the damage could
(Page 13)
- occur without negligence, such as that the respondent was suffering from a congenital defect or that the relationship between the ostium and the floor of the orbit was outside the normal range. It was not part of the appellant's case at trial that either of these two scenarios applied. Such would have been apparent from a CT scan. A CT scan was done prior to and after the surgery and reported on by a radiologist. The reports were in evidence without objection or limitation and were seen by the appellant. Dr Scoppa had read the post-surgical CT scan report from which he concluded there was no relevant abnormality. Professor Wormald was asked in cross-examination whether there was anything particular about the structure of the respondent's nasal passages and orbit to explain what had occurred and he said, "No, I think his would be the same as everyone else's." The evidence is sufficient to exclude the possibilities to which the appellant referred.
33 I am persuaded that it was open to the trial Judge to find, and he should have found, that the damage to the floor of the orbit, admittedly occasioned by the appellant during surgery, could not have been inflicted without negligence. I would uphold the notice of contention.
Conclusion
34 For these reasons I would dismiss the appeal and uphold the notice of contention.
35 SIMMONDS J: I have had the advantage of reading the judgment of McLure J in draft and for the reasons she gives I would dismiss the appeal and uphold the notice of contention.
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