| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GIBSON -v- ST JOHN OF GOD HEALTH CARE INC & ANOR [2005] WADC 88 CORAM : MAZZA DCJ HEARD : 15-19, 22-26 NOVEMBER 2004 DELIVERED : 11 MAY 2005 FILE NO/S : CIV 1247 of 2002 BETWEEN : SHARON GIBSON Plaintiff
AND
ST JOHN OF GOD HEALTH CARE INC
First Defendant
DR GRAHAM FORWARD
Second Defendant
Catchwords: Negligence - Proof of negligence - Turns on own facts
Legislation: Nil
Result: Action dismissed
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Representation:
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr M H Zilko SC
Second Defendant : Mr P D Quinlan
Solicitors:
Plaintiff : Dwyer Durack
First Defendant : Srdarov Richards
Second Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Case(s) also cited:
Albrighton v Royal Prince Alfred Hospital [1979] 2 NSWLR 165
Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Elliott v Bickerstaff (1999) 48 NSWLR 214
Fox v Percy (2003) 214 CLR 118
Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd (2004) A Tort Rep 81740
Guest v NRMA Insurance Ltd [2002] WADC 115
Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Kondis v State Transport Authority (1984) 154 CLR 672
Macquarie Area Health Service v Egan [2002] NSWCA 26
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Rae v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 419
Retsas v The Commonwealth (1976) 50 ALJR 104
Rosenberg v Percival (2001) 205 CLR 434
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Sotico Pty Ltd v Green [2003] WASCA 285
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Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
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Introduction 1 No-one disputes that the plaintiff, who was employed by the first defendant as a nurse at its Murdoch hospital, suffered a rupture and prolapse of the L4/5 level disc in her spine on 30 December 2000. The plaintiff alleges that injury was caused by the negligence of the first and second defendants. Both defendants deny that they were negligent. Before the plaintiff can be awarded damages I must decide if the injury was caused by the negligence of one or both of the defendants.
The background 2 The plaintiff was born on 6 November 1954. Accordingly, she was 46 years of age at the time of her injury. Her curriculum vitae, (exhibit 1, pp 1 - 12) reveals that she completed her university qualification for nursing in 1986 and thereafter worked in a number of different areas not only as a clinical nurse but as a manager, administrator and teacher. She had worked in these capacities in a career spanning 14 years prior to the accident. She is plainly an experienced, competent nurse. 3 In February 2000 the plaintiff commenced work in the surgical recovery unit at the first defendant's hospital at Murdoch. Her duties were, in very general terms, to monitor and stabilise patients immediately after surgery and prepare those patients for return to the hospital's wards. 4 The plaintiff was employed by the first defendant to work for 24 hours per week plus on-call shifts. On Saturday, 30 December 2000, the plaintiff was requested to work an on-call shift. She arrived at the hospital at about 4 pm. Upon her arrival she learnt that an orthopaedic surgical list was being conducted. As it turned out, this list was being conducted by the second defendant, who is an orthopaedic surgeon. 5 On weekends and after hours part of the recovery room was used to prepare patients about to go into surgery. This area of the recovery room, which was referred to as a holding bay, comprised about four beds. The plaintiff was required on 30 December 2000 to work in both the holding bay and post-operative area of the recovery room. At approximately 5.30pm, an incident occurred involving the plaintiff when a woman in labour was transferred from the labour ward to the pre-operative area of the recovery room to prepare her for an urgent caesarean section. An anaesthetist, Dr D'Souza, inserted an intravenous cannula in the patient's left arm. The plaintiff agreed to hang some fluids for the patient. This
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involved hanging an intravenous fluid bag from a pole and attaching a tube from the bag into the cannula thereby allowing fluids to flow into the patient's bloodstream. During this process the plaintiff felt what she described as "a slight strain in her mid-back, mid-thoracic" area. At T47 and T48 she described what occurred in this way: 6 Notwithstanding the slight strain which the plaintiff said she felt, she continued with her duties. She had a break for tea with another nurse who was working that day in the recovery area, Emily Solomons, and she returned to the recovery room. When she got there she saw that a patient, Ms Doris Scott, had been brought from a ward to the holding bay area. The plaintiff was surprised when she saw Ms Scott in the holding bay.
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This was because she had earlier been told that Ms Scott had broken her pre-operative fast and her surgery scheduled for that evening would be delayed to the following day. At the time Ms Scott was 74 years of age with a medical history of Alzheimer's disease. One of the witnesses, Ms Christine Phillips, described her as quite slightly built. 7 The plaintiff was aware that Ms Scott had suffered a fracture known as a Colles' fracture to her right arm. A Colles' fracture is a fracture of the distal end of the radius and which also often involves a small fracture of the ulna. The fracture often produces a deformity of the wrist which takes on the shape of the curvature of a dinner fork. It is one of the most common fractures encountered by orthopaedic surgeons and usually occurs when a person falls and attempts to cushion the effects of the fall with an outstretched hand. The reduction of a Colles' fracture almost always occurs under general anaesthetic. 8 The undisputed evidence revealed that the second defendant is in private practice with admitting rights to the second defendant's hospital at Murdoch. He is not employed by the hospital. At about 2.30 pm on 30 December 2000, Ms Scott was admitted to the hospital by one of the first defendant's employed doctors, Dr Woosey. Dr Woosey either spoke to the second defendant or relayed a message to him and as a result Ms Scott was admitted to hospital under the second defendant's care. The second defendant saw Ms Scott on one of the orthopaedic wards sometime after her admission and intended to reduce her fracture under a general anaesthetic during the course of his surgical list that day. The second defendant's plan changed when he found out that Ms Scott had eaten during the afternoon and, as a result, could not be given a general anaesthetic. The second defendant decided that he would perform what he described in his evidence at T732 as "a trial reduction". That is, he wanted to see if he could improve the position of the fracture without the need for an anaesthetic and if he could do that he would then apply a plaster cast to immobilise the fracture. 9 I will later in this judgment refer to the evidence in more detail, but essentially, the second defendant carried out the trial reduction in the presence of the plaintiff and another nurse, Christine Phillips. Although Emily Solomons was in the recovery room she did not witness the attempted reduction of the fracture by the second defendant. 10 According to the plaintiff during the course of this attempted reduction she suffered a serious injury to her spine. The plaintiff says that both the first and the second defendant were negligent. She says that the
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first defendant breached its tortious and contractual duties to her and was in breach of its statutory duties pursuant to the Occupational Safety and Health Act 1984. She alleges that the second defendant is liable to her in tort. The first defendant denies that it was negligent and says that the plaintiff injured her back during the course of her work with the emergency caesarean patient. Alternatively, if the plaintiff sustained her injury during the attempted reduction of the Colles' fracture on Ms Scott, the injury was caused or contributed to by the plaintiff's own negligence in continuing to work after injuring her back in the earlier incident with the emergency caesarean patient. 11 The second defendant also denies any negligence and says that if any injury did occur it occurred in the incident involving the emergency caesarean patient. Alternatively, if the injury occurred during the attempted reduction of Ms Scott's fracture, the plaintiff caused or contributed to the injury by continuing to work after dealing with the emergency caesarean patient.
The pleadings as to the issue of liability 12 The plaintiff pleads that the second defendant was, on 30 December 2000, working as an employee, servant or agent of the first defendant. The incident which caused the plaintiff's alleged injury is described in the statement of claim in the following terms: "5. On the material date the plaintiff was working as a recovery nurse in the recovery ward of the hospital and was holding the arm of an (sic) 76 year old woman, Mrs Doris Scott with a Colles' fracture ('the patient') with two fingers as instructed by the second defendant when without warning the second defendant reduced the fracture causing the patient to scream and pull away and causing the plaintiff to sustain back injury ('the accident')." 13 The plea of negligence as against the first defendant is set out in par 6 of the statement of claim as follows: "6. The accident was caused by the negligence of the first defendant in that the first defendant by its employees, servants or agents: (a) the second defendant, instructed the plaintiff to continue to hold on to the patient's two fingers without warning the plaintiff that he intended to
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reduce the patient's fracture and without warning the plaintiff that the patient was likely to react to the pain caused by him doing so; (b) required the plaintiff to continue to hold on to the patient's two fingers after the fracture had been reduced when the first defendant knew or ought to have known that the patient had jerked and pulled away causing the plaintiff to sustain back injury; (c) failed to warn the plaintiff of the second defendant's intention to reduce the fracture; (d) failed to supervise/instruct and/or train the plaintiff in a safe system of holding the patient whilst the second defendant reduced the fracture; (e) failed to use alternative methods to reduce the fracture which involved the use of anaesthesia such that the patient would not have screamed and jerked away when the second defendant reduced the fracture; (f) by the second defendant, reduced the fracture when the second defendant knew that the patient was in pain because the patient was complaining and when the second defendant knew that the patient was likely to jerk and react to the pain associated with the reduction of the fracture; (g) failed by its employee servant or agent the second defendant to accept a suggestion by an attending anaesthetist Dr Schwab of sedation/analgesia or the use of a block, when such materials were readily available and accessible for use by the first defendant's employees, servants or agents; (h) failed to explain to the plaintiff how the second defendant planned to reduce the fracture thus preventing the plaintiff from bracing herself, spreading her feet further apart, bending her knees, asking for assistance and otherwise being better prepared to refusing to participate;
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(i) required or allowed the reduction of the fracture to be carried out on a wide hospital bed rather than a trolley or operating table such that the plaintiff was required to reach across the bed to hold the patient's fingers." 14 As against the second defendant, the plaintiff's plea is set out as follows: "8A. Further the accident was caused by the negligence of the second defendant in that the second defendant: (a) instructed the plaintiff to hold onto the patient's two fingers without warning the plaintiff that the second defendant intended to reduce the patient's fracture and without warning the plaintiff that the patient would likely react to the pain caused by him doing so; (b) required the plaintiff to continue to hold onto the patient's two fingers after the fracture had been reduced when the second defendant knew or ought to have known that the patient had jerked and pulled away causing the plaintiff to sustain back injury; (c) failed to warn the plaintiff of the second defendant's intention to reduce the fracture; (d) failed to use alternative methods to reduce the fracture which involved the use of anaesthesia such that the patient would not have screamed and jerked away when the second defendant reduced the fracture; (e) reduced the fracture when the second defendant knew the patient was in pain because the patient was complaining and when the second defendant knew that the patient was likely to jerk and react to the pain associated with the reduction of the fracture; (f) failed to accept a suggestion by the attending Anaesthetist Dr Schwab of sedation/analgesia or
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15 The first defendant's defence as to the accident is a denial of pars 5 and 6 of the statement of claim combined with a plea that the incident holding the caesarean patient caused the plaintiff's injury. 16 Paragraph 5 of the second defendant's defence sets out his version of what occurred when he attempted to reduce Ms Scott's fracture: "5. The Second Defendant says that on 30 December 2000, prior to reducing the colles fracture of Mrs Doris Scott ('the patient'), the Second Defendant asked the Plaintiff to assist by holding the patient's index and middle fingers whilst the Second Defendant wrapped the patient's arm in a Valband bandage. This process took approximately 2-3 minutes. The patient's arm was suspended over the side of the bed closest to the Plaintiff, and the Plaintiff was supporting the patient's arm by holding the patient's index and middle finger. In supporting the patient's arm, the Plaintiff was not required to lean over the bed or the patient in any way. When the Second Defendant had completed wrapping the patient's arm, the Second Defendant took the patient's arm from the Plaintiff. The Second Defendant then reduced the patient's fracture. Whilst the fracture was being reduced, the Plaintiff was not holding the patient's arm. It was being held by the Second Defendant. After reduction of the fracture, the Second Defendant again asked the Plaintiff to suspend the patient's arm by holding the patient's index and middle finger, whilst the Second Defendant attended to plastering
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of the patient's arm. At no stage of the procedure was the Plaintiff's upper limb or lumbar spine placed under any strain." 17 The plaintiff does not claim that she was negligently injured in the incident involving the emergency caesarean patient. Her claim depends upon her establishing that the incident involving the attempted reduction of the Colles' fracture on Ms Scott caused or materially contributed to her injury: Chappel v Hart (1998) 195 CLR 232, and that the procedure was carried out negligently. 18 The plaintiff's credibility as to how her injury occurred is crucial to the determination of this case. Both the first and second defendants submit that the plaintiff's version of what occurred when the second defendant attempted to reduce Ms Scott's Colles' fracture cannot be accepted. Both argue that unless, on the balance of probabilities, I accept the plaintiff's version of events as to this incident, the plaintiff cannot succeed against either or both of them. I accept this submission. Accordingly, I must carefully evaluate all the evidence as to what occurred during the attempted reduction of Ms Scott's Colles' fracture.
The plaintiff's evidence at trial concerning the reduction of the fracture 19 The plaintiff testified that after she had finished her tea she returned to the recovery area where she noticed Ms Scott lying on a ward bed with the cot rails up. She went to Ms Scott to reassure her. At that point she noticed the second defendant looking at some x-rays on a viewing screen. The second defendant left the viewing screen and went over to Ms Scott. She noticed that he began examining Ms Scott's arm. The plaintiff began to walk away to assist Emily Solomons in the care of another patient somewhere else in the recovery room when the second defendant asked her to hold Ms Scott's arm. According to the plaintiff, the second defendant asked her: "Can you hold her fingers up like this? Can you hold her arm by her middle fingers like I'm doing?" (T52) The plaintiff said that she held the tip of Ms Scott's fingers with her right hand so that Mrs Scott's arm was perpendicular to the bed. 20 Once the plaintiff had hold of Ms Scott's fingers the second defendant moved away from the bed towards the viewing screen. He then returned to the side of Ms Scott's bed so that both she and the plaintiff were standing alongside the bed with the second defendant at Ms Scott's shoulder level and the plaintiff was approximately at the level of Ms Scott's waist. According to the plaintiff, the second defendant was standing to her left hand side.
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21 The plaintiff said that she saw the second defendant gently feeling around Ms Scott's right arm and then he moved his hands to the patient's forearm. At T56 and T57 the plaintiff described what happened next:
"He then, you said, got both hands?---Yes – around the patient's lower forearm. One hand just above the elbow, one hand just above that and in a very swift motion pulled down very firmly on the patient's arm. So one hand just above the elbow?---Elbow. And the other hand where?---And the other hand just above that one. So basically gripping the patient's forearm just above the elbow. While you have still got hold of the - - -?---While I've still got hold of the fingertips. I wasn't prepared for it. He went down vertically. He did a vertical movement. Straight down. Quite a lengthy quick movement down. Quite a forceful movement down. I went down with him pulling down and with that I felt a wrenching, a twisting of my back. I immediately felt pain in my back. With that the patient then in response to the painful stimuli just started to pull away from the pain. She started to try and pull away from Mr Forward and myself. I'm trying to maintain a grip on her fingers. She pulled her right arm across her chest and with that – she was very strong. She was very forceful. She cried out in pain as the force came down. She sort of cried out in pain and I will never forget the look on her face. I will never forget the look in her eyes. It was just this look of terror and fear and I just couldn't believe what had happened. She started to pull her arm across her chest. I went with her. Mr Forward could – I was losing my grip on her fingers. My back was searing with pain. I had twisted and wrenched it. I was trying to hang onto her fingers. I was slipping. Mr Forward must have been able to see. I don't know. He will have to talk about that himself but I was slipping in holding on my fingers. I had no idea I was supposed to be providing any traction and he said, 'Hold onto those fingers. Don't let go of those fingers. It will come out of alignment.' So I then thought I have got to try and pull her back across the bed so I pushed my left hand on the cot rails. My left foot had come off the ground by this stage because she pulled with such force that I banged my left hand onto the cot sides, pushed my left
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foot back onto the ground and tried to pull her fingers back and pull her back into the middle of the bed and I just had searing pain immediately. First I felt the wrenching and the twisting and the tearing. Then I started to feel a searing pain that went up through my lower back and started to move up to the top of my back." 22 There are, I think, five important elements of the plaintiff's account of events. They are: (a) that she was holding the patient's right arm by only the tips of the patient's fingers; (b) the second defendant gripped the patient's forearm just above the elbow with both hands, one positioned just above the other; (c) the second defendant pulled the patient's arm downwards in a very swift and firm action; (d) Ms Scott pulled her right arm across her chest in a movement which was both strong and forceful; (e) notwithstanding the movement of Ms Scott's arm across her chest in a very strong and forceful manner, the plaintiff maintained the grip on her fingers and was pulled by Ms Scott across her chest.
The second defendant's version of events 23 The second defendant's version of what occurred is very different to that described by the plaintiff. After completing an orthopaedic operation on a trauma patient, the second defendant went to the holding bay and saw Ms Scott. By that time he realised it would not be possible to operate on Ms Scott. His plan was then to attempt a trial reduction of the fracture. 24 The second defendant said that after he looked at x-rays of Ms Scott's injury he then went to prepare the water for the plaster. While doing this, Christine Phillips was preparing the plaster trolley. After preparing the water the second defendant returned to the holding bay where he saw the plaintiff talking to Ms Scott. Apart from Ms Phillips and the plaintiff, the second defendant recalled that Emily Solomons was in another part of the recovery room attending to the patient who had just come out of surgery. 25 The second defendant decided that anaesthesia was not required. He made this decision having consulted an anaesthetist, Dr Schwab. He also decided against using a sedative, Midazolam. The second defendant said that he made that decision for two reasons, first, because his purpose was
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to apply a plaster and not achieve an accurate reduction and second, because Midazolam had an adverse effect upon elderly people who were suffering from dementia. 26 The second defendant recalled that Ms Scott was lying on a bed which was elevated about 30 degrees. He lowered the cot side to the patient's right and then he asked the plaintiff to hold the patient's index and middle fingers and stand by the side of the bed so that the patient's arm was in a "stop sign" position with the upper arm just suspended off the bed. While the plaintiff held the arm, the second defendant went to the plaster trolley and helped Ms Phillips prepare Valband, plaster and a crepe bandage. This process took two to three minutes. The second defendant then returned to the bed and took the patient's fingers from the plaintiff. At this point the second defendant was holding Ms Scott's arm. According to the second defendant he then attempted to push the fracture fragments into an aligned position. He recalled that Ms Scott showed her displeasure with that attempt by trying to recoil and pull her arm away from his grip and she may have cried. The second defendant said that he desisted almost immediately. He put it this way at T742: "Holding the patient's wrist I tried to push the fracture into a better position. I desisted almost immediately because the patient demonstrated her pain. She tried to withdraw her arm from my grip and she admonished me." 27 According to the second defendant, at no time during the attempted reduction of her fracture was the plaintiff touching Ms Scott. The second defendant said that, from a technical point of view, it would be illogical and possibly counterproductive to have a person holding the fingers up in an attempt to reduce a Colles' fracture. The second defendant explained why this was in the following exchange with his counsel at T742 and T743.
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forwards. At that stage we would not want either the hand or the fingers to be suspended or have traction applied or in any way constrained. At stage of pushing the fracture with an attempted reduction we want the hand and fingers to flop freely." 28 After the attempted reduction the second defendant said that he handed the patient's arm back to the plaintiff and asked her to hold the arm by two fingers in the same "stop sign" position that she had before. The reason for suspending the arm in this manner was to allow gravity to align the fracture fragments. The second defendant then went to the plaster trolley and collected the Valband which he wrapped in a spiral sequence around the forearm to protect it from the plaster. The second defendant then applied the plaster around the forearm and finally wrapped one or two crepe bandages around the cast. According to the second defendant, the plaintiff was holding the patient's fingers in the "stop sign" position for two or three minutes until the plaster had been applied. He then said that he took hold of the patient's plastered forearm to mould the cast to the contours of her arm. 29 According to the second defendant at no time did: Evidence of Christine Phillips 30 The only other person present when the plaintiff was allegedly injured was Christine Phillips. Ms Phillips said that on 30 December 2000 she was the Senior Registered Nurse at the hospital. Like the plaintiff, she worked an on-call shift in the recovery room. She has worked as a nurse since 1978. 31 Ms Phillips recalled that after her tea break she returned to the recovery room and saw Ms Scott, the plaintiff and the second defendant. She said that she assisted the second defendant in the reduction of Ms Scott's fracture. She confirmed that the plaintiff was also present for that procedure.
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32 According to Ms Phillips, the plaintiff assisted the second defendant at the point that the fracture was being reduced by holding Ms Scott's arm just below the elbow with both hands cupped around the elbow socket. While this was happening Ms Phillips saw the second defendant's hands working at the area of Ms Scott's wrist. She said that the second defendant took her hand and examined it. He then applied pressure to her wrist and warned her that it could hurt. She recalled that the patient agreed that it had hurt.
33 After the second defendant had performed the reduction, Ms Phillips recalled that the plaintiff held Ms Scott's hand by the fingers so that Ms Scott's arm was straight up and not resting on anything. The plaintiff held this position whilst the second defendant plastered Ms Scott's arm. 34 Ms Phillips did not recall seeing the second defendant pulling Ms Scott's arm down while the plaintiff was holding it. Ms Phillips said that she did not see the plaintiff dragged down and then across the bed, nor did she hear Ms Scott cry out in agony. She said that she saw nothing abnormal during the procedure in relation to what the second defendant did. 35 Ms Phillips recalled that while the plaintiff was holding Ms Scott's hand she offered to take over. She said that she made this offer because holding a hand up for a plaster is tiring and to hold a patient's hand for a period of five minutes requires the person holding the hand to be "relatively strong". She noted the plaintiff looked tired. Ms Phillips was asked about the position a nurse needed to be in when holding an arm which was being plastered. In cross-examination under questioning from the plaintiff's counsel, Mr Herron, the following exchange took place at T649 and T650: "And when you do that, do you need to position yourself in a certain way?---Yes, you need to be standing straight. You don't want to be leaning over or bearing things like that. Why is that please?---Because it's more comfortable and would prevent strain. You wouldn't lean over to do it because you couldn't for a period of time. You'd sit back and stand straight to do it. And prevent strain of what?---Well, it makes a job easier. It's, you know, a natural position for holding a limb or a tract or anything.
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So if you're leaning forward in a flexed position, it may strain your back if you're doing it for a period?---It may do if you do it for a period of time." 36 In cross-examination, Mr Herron questioned Ms Phillips about the position of the patient's arm at the point that the second defendant was apparently attempting to reduce Ms Scott's fracture. Ms Phillips' recollection was that the second defendant was standing in front of Ms Scott's hand, that is, so that Ms Scott's fingers were pointed in the direction of the second defendant's body and that the second defendant's thumbs were at Ms Scott's wrist but pointing towards her body. She confirmed that whilst this was happening, the patient's arm was in a horizontal, not vertical, position and that the plaintiff was supporting the patient's arm at the elbow. Ms Phillips testified that the arm was only in a vertical position when it was being plastered. She said that once the procedure to manipulate the fracture had begun she had the procedure and the consequent plastering of the arm under continuous observation. 37 Ms Phillips' evidence is not totally consistent with either the plaintiff or the second defendant. With respect to the plaintiff's evidence, Ms Phillips contradicts the plaintiff's account of events in that: (a) She denies that the second defendant's attempted reduction of Ms Scott's fracture occurred whilst the plaintiff was suspending Ms Scott's arm vertically. Ms Phillips says that the attempted reduction occurred whilst the arm was in a horizontal position. (b) She did not see the second defendant take Ms Scott's arm by both hands at the region of Ms Scott's elbow and pull downwards. Ms Phillips observed that the second defendant's hands were working in the region of Ms Scott's wrist. (c) Ms Phillips did not see the plaintiff pulled down and dragged across Ms Scott. (d) Ms Phillips did not hear Ms Scott cry out in pain, although, she did recall that Ms Scott told the second defendant that the procedure hurt. 38 With respect to the second defendant's version of events, it seems to me that there is a closer correlation between Ms Phillips' evidence and that of the second defendant, however, there are two significant differences in their testimony. Those differences are: (a) The second defendant said that when he was manipulating the patient's wrist he did so with the patient's fingers pointing away
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from him whilst Ms Phillips recalls the second defendant was positioned so that Ms Scott's fingers were pointed towards him. (b) Ms Phillips recalls that the plaintiff was supporting Ms Scott's arm during the attempted reduction, albeit whilst the arm was in a horizontal position. The second defendant's evidence was that only he had hold of the patient's arm when he was attempting to reduce the fracture. 39 Notwithstanding these differences, Ms Phillips' evidence in my opinion was generally supportive of the second defendant's testimony and in my opinion bolstered his credibility. 40 Ms Phillips' evidence was also different to the evidence of Emily Solomons in one respect. Ms Solomons said that she heard Ms Scott scream out in agony whilst the plaintiff and the second defendant were treating Ms Scott. Ms Phillips' evidence was that Ms Scott told the second defendant that the procedure hurt but she did not hear an agonized scream from Ms Scott. I prefer the evidence of Ms Phillips on this point. Ms Phillips was at all times present during the procedure with Ms Scott and I think had Ms Scott screamed in agony she would have recalled it. 41 I must say that I found Ms Phillips to be, overall, an honest and convincing witness. She was careful in the way in which she answered questions and she appeared to me to be intent on providing the court with as accurate an account of events as she was able to recall.
Some matters going to the plaintiff's credibility 42 The first defendant's counsel, Mr Zilko SC, and counsel for the second defendant, Mr Quinlan, have made detailed and strenuous submissions to the effect that the plaintiff's testimony as to how she injured her back should not be believed. A number of issues going to the question of the plaintiff's credibility were raised by counsel. I will deal with those issues now.
(i) The plaintiff's accounts of events 43 As I have already observed the plaintiff said that she felt only a slight strain as a result of the first incident, and that did not cause any pain or restriction of movement. That was not what she said in a Staff Accident Report she completed on 30 December 2000 (exhibit 4). In that document which she completed on the evening of 30 December 2000 after the second incident she said:
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"Patient awaiting emergency caesarean section requiring an intravenous drip. Patient laying on (R) side with IV bung in (L) hand. I asked the patient to move her arm over the left side. She was contracting, so I waited. Her husband was talking to her so I reached over to her hand and connected the IV. I felt my back strain. It felt alright for an hour and a half and then started to hurt and then spasm." 44 What is striking about this document is that it makes no mention of the second incident, that is, the reduction of Ms Scott's Colles' fracture. The report says that the incident involving the caesarean patient occurred at 5.10 pm and that the nature of the injury was a strain in her lower back. I further note that the patient number and date of birth referred to in the report belonged to the caesarean patient and that the named witness was Dianne Tanian who was the midwife assisting the caesarean patient. 45 The plaintiff's explanations as to why there was no mention of the second incident in the accident report were that, first, there was not enough room in the form to put anything about the second incident although she had intended to and second, she was experiencing a high level of pain at the time that she completed the report that she was unable to write anything more. 46 I do not accept these explanations. While I accept that at the time that the plaintiff completed the form she was in pain, she nevertheless had the presence of mind and was physically able to complete the form by giving a reasonably detailed description of what occurred in the first incident. I have no doubt that had she thought that the second incident was of any significance she would have made some, even brief, reference to it. 47 The evidence before me was that the plaintiff complained of a back injury after the second incident and that she was taken to the emergency department of St John of God Hospital, Murdoch. The emergency department nursing assessment notes completed by Nurse Cartledge, which were tendered by consent, indicate that the plaintiff presented at the emergency department at 8.45 pm with a back injury. The notes as to how the injury occurred are brief and are in the following terms: "Reached across a patient in recovery pulling back at 1700 hours then 1½ hours ago had to hold a patient's arm in same position for 30 minutes: back spasmXXX + 1 diarrhoea
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episode. Took 2 Nurofen one hour ago c/o back spasms and lumbar pain - ºdistal paresthesia." 48 Clearly the notes taken by Nurse Cartledge are not comprehensive but they reveal that on the night of 30 December 2000 the plaintiff attached some importance to the first incident – an importance that she denied in her evidence. Further, it would appear from the notes that she told Nurse Cartledge that in the second incident her back began to spasm because she had hold of a patient's arm in the same position for 30 minutes. Leaving aside that on no account, including her own, did the plaintiff have hold of Ms Scott's arm for 30 minutes, there is no reference to the plaintiff being pulled down and then across the patient. I would have thought that had that occurred some brief mention of it would have been made to Nurse Cartledge. 49 The plaintiff was examined by a doctor at the emergency department, Dr Jan. He completed a WorkCover certificate for the plaintiff on 30 December 2000. That certificate was tendered by consent and is exhibit 5. In that form the description of the injury is very sparse. Dr Jan wrote: "Assisting anaesthetist with arm – twisted and flexed. Back pain in theatre." 50 The reference to "Assisting anaesthetist with arm" seems to me to be an obvious reference to the first incident. Although I acknowledge the notes are very brief, they are of some assistance in gauging the plaintiff's credibility. 51 Nurse Cartledge and Dr Jan were not the only people that the plaintiff spoke to on the evening of 30 December 2000. The plaintiff also spoke with Shauna Howarth. Ms Howarth was at that time a clinical nurse in the operating theatre. She was also a safety representative. It seems that the procedure which was in place at the hospital was that whenever a member of staff was injured an accident report (of which exhibit 4 is an example) had to be completed by the person who was injured. The safety representative was then required to investigate the circumstances of the accident. Ms Howarth undertook the investigation of the incident referred to by the plaintiff in exhibit 4. Her notation on the form is dated 2 January 2001, however, in her evidence, which I accept, she said that she probably got the information which she wrote on the form from the plaintiff on 30 December 2000. Her notation is as follows:
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"Sharon was asked to connect IV line into bung in patient's hand. The patient was having contractions at the time and the anaesthetic [sic – anaesthetist] requested her to do it so she leant over to move the hand to perform the task. By doing so she felt pain in her back. She subsequently helped to hold another patient's hand whilst he (sic) placed on a plaster which made her back spasm." 52 I accept that the only person who could have informed Ms Howarth of the matters she described in exhibit 4 was the plaintiff and that this account was given to Ms Howarth probably on 30 December 2000. The account which the plaintiff gave to Ms Howarth, consistently with other accounts that she made on 30 December 2000, gives a much greater emphasis to the circumstances and effect of the first incident compared with her testimony at trial. Those initial reports support the position of the first and second defendants that the incident with the caesarean patient caused an injury to the plaintiff's back which began to spasm later when she assisted Ms Scott. 53 The contemporary written documents in the few days after 30 December 2000 still give some emphasis to the first incident but as the days go by the plaintiff gives less emphasis to the first incident and a greater emphasis to the second. On and after 1 January 2001 the contemporaneous records refer to the plaintiff complaining that the second defendant pulled down on the patient's arm resulting in forces which precipitated her back injury. On 1 January 2001, a neurosurgeon, Mr Soni Narula, saw the plaintiff and then wrote to a doctor in the first defendant's emergency department. That letter is exhibit 13.6. The first paragraph of that letter reads: "She was at work on 30.12.00 when in the recovery ward she leaned over to reach out for the hand of a patient while looking after the intravenous drip. She felt something give in her low back and suffered an ache immediately thereafter. She disregarded this and soon thereafter in the same shift, held onto the upper limb of a patient while a closed reduction of a dislocated joint was being carried out. She felt a pulling sensation in her low back when the upper limb was manipulated and tugged away from her. Her pain soon exacerbated thereafter and she went to the emergency where I note she was given Ketorolac as well as Diazepam. She returned home but had difficulty in going to the toilet and was crawling on all
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fours. The next morning she could hardly move. She was therefore brought in and admitted." 54 On 2 January 2001 the plaintiff completed a WorkCover accident report form. Although brief, the plaintiff's account of what caused her injury is as follows: "Upon inserting an intravenous drip the patient had a contraction and pulled her arm away while I was trying to save the line. One hour later I was holding a ladies (sic) arm by the fingers as it was being reduced." 55 Dr Ong wrote a report (exhibit 13.5) dated 1 January 2001. The date of that letter seems to be an error because in his evidence he said that he did not see the plaintiff until after she had been discharged from hospital which was on 6 January 2001. He therefore agreed that the first time he would have taken the plaintiff's history was at least one week after 30 December 2000. In the letter dated 1 January 2001 Dr Ong summarised the history given to him by the plaintiff in the following terms: "The orthopaedic surgeon apparently did a closed reduction of the fracture without warning her, pulling down on the patient's arm while asking her to hold on to the patient's fingers. This downward force without warning caused her to be injured with a disc prolapse at L4/5 with two annular tears at that disc. She was unable to walk and was put to rest in bed for one week at the St John of God Murdoch Hospital, where she worked." 56 On 8 January 2001, the plaintiff wrote to Angela Gee, who was, at the time, the theatre nurse manager at St John of God Hospital, Murdoch. This letter is just over three pages in length and was written, in my opinion, in an effort to give an account of events which was deliberately designed to lessen the importance of the first incident and give greater importance to the second. 57 Although the plaintiff's letter to Ms Gee is largely consistent with her oral testimony there are parts which are not. For example, in the letter the plaintiff said that prior to the second defendant pulling on Ms Scott's arm she was holding the arm for "approximately 8 minutes". In her evidence (T241) the plaintiff said in cross-examination "it may have been two or three minutes".
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58 In the letter, the plaintiff stated that it took "another 15 minutes" for the second defendant to plaster Ms Scott's arm. In her evidence, the plaintiff denied this saying at T280:
"No, it did not take 15 minutes. I don't recall it taking 15 minutes." She went on to say that it took "a few short minutes". 59 As time has progressed since 30 December 2000 the plaintiff's account of events has laid increasing emphasis to the second incident over the first. In fact, by the time the plaintiff consulted Dr Alan Home, an occupational physician, she made no mention at all of the first incident: T922. 60 Not only did I hear evidence of contemporaneous written accounts made of the plaintiff's version of events but I also heard oral testimony from witnesses who had contact with the plaintiff on 30 December 2000. The plaintiff submits that I should give substantial weight to these accounts. 61 Emily Solomons said that after the plaintiff attended to Ms Scott she saw the plaintiff sitting at a ward desk "in a lot of pain". Ms Solomons said at T349: "She [the plaintiff] said that Mr Forward asked her to hold Mrs Scott's fingers up in the air and that the patient was – the scream that I heard was when she was holding the fingers and Mr Forward was pulling on the other end and that the patient yanked her arm and – because it was painful and so that she twisted her back and hurt her back that way." 62 Mr John Foster, a patient care assistant employed by the first defendant, said that he saw the plaintiff in distress on 30 December 2000 near one of the bays in the recovery room. At T435 he testified: "She said that Graham had pulled the arm while she was holding it and caused her back to have severe spasm." 63 The plaintiff's husband, Loyd Gibson testified in cross-examination in answer to questions from Mr Zilko SC that on the night of 30 December 2000 he was told that during the course of the reduction procedure the plaintiff was pulled down and that she felt a "crunching" in her back. He went on to say the plaintiff told him that she felt a crunching sensation:
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"… when the woman in pain pulled away and across from her pulling her [the plaintiff] across the bed." (T558) 64 If I accept the testimony of these witnesses as to what the plaintiff told them on 30 December 2000 that would bolster the plaintiff's credibility. However, in my opinion, the evidence of each of these witnesses has been influenced by the plaintiff's contact with them after 30 December 2000. In the case of Ms Solomans, she agreed that she had spoken to the plaintiff about what had occurred on 30 December 2000 on two or three occasions. The first time that she gave an account of what the plaintiff had told her was in October 2003 when she was interviewed by the plaintiff's solicitors. 65 In the case of Mr Foster, under cross-examination by Mr Quinlan, he understandably agreed with the proposition that he could not remember the precise words said to him by the plaintiff on 30 December 2000. He put it this way at T441: "All I basically saw was the fact that she was in pain and that she had said that Graham Forward had manipulated the arm and caused some back pain – caused her pain." 66 It had become apparent in cross-examination that Mr Foster's recollection did not extend to a recollection of the plaintiff saying that she had been pulled downwards and then across the patient. 67 As to Mr Gibson, there is no doubt a very strong bond between the plaintiff and her husband. I have no doubt that the plaintiff and her husband have spoken often about what happened on 30 December 2000. I think it almost certain that the plaintiff's husband's view of events has been coloured by those conversations and that it would be difficult for him to accurately recall what she said on 30 December 2000. 68 As to Ms Solomons, I think it is likely that her account of what the plaintiff told her on 30 December 2000 has been affected by what she was told at later times by the plaintiff. The likelihood of this occurring has, in my view, been increased by the effluxion of time between 30 December 2000 and October 2003 when she saw the plaintiff's solicitors. 69 One other witness who gave evidence as to what the plaintiff said to her about the circumstances of her injury on 30 December 2000 was Ms Jessie Kaur. Ms Kaur was the duty manager at the hospital on 30 December 2000. Ms Kaur testified that the plaintiff telephoned her
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sometime after 8.00 pm on 30 December 2000. In her examination-in-chief the following exchange took place: "Okay. What did she say to you on the phone?---She said that she was reporting an incident. I mean, she had hurt herself at work and that she was going to emergency – somebody had taken her to emergency department. Yes?---Did she describe to you how she had been injured?---She said – I mean, to the best of my knowledge she said that the hospital was busy – I mean, sorry, theatre was busy and that she was attending to a restless patient who I believe was a patient with contractions you see and that she was trying to connect something and leant over the patient. That's all I know. So what you're telling is what she told you?---Yes. Yes, you've not got that from anywhere else?---No. All right, so let me just go through that slowly. She told she was dealing with a restless patient?---Yes. The patient was having contractions?---Yes. And that she was leaning over the patient trying to put something in?---Yes." 70 This conversation is of significance. There is no doubt that the plaintiff was speaking to Ms Kaur about the first incident with the caesarean patient and not the second incident involving the second defendant. The content of this conversation tends to support the early written accounts referred to by me earlier which gives emphasis to the first incident as opposed to the second. 71 I have undertaken a detailed review of the evidence of the contemporaneous written and oral accounts given by the plaintiff on or about 30 December 2000 as to how she sustained her injuries. In my opinion the early contemporaneous written accounts combined with the evidence of Ms Howarth and Ms Kaur contradict the plaintiff's testimony that she did not feel much at all during the incident with the caesarean patient.
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(ii) The Zurich Insurance Income Protection Policy and failure to file income tax returns
72 Both the first and second defendant sought to undermine the plaintiff's credibility in connection with payments she received from Zurich Insurance pursuant to an income protection policy. Each defendant alleged that the plaintiff had not declared payments made to her by Zurich Insurance in her income tax returns and it was further alleged that she had not declared to Zurich Insurance that she was receiving income from teaching at Curtin University. 73 There was no dispute that between 16 January 1998 and 15 January 2000 the plaintiff received a total of $34,432.44 from Zurich Insurance pursuant to her income protection policy. She received these funds on the basis that she was unable to work because of what the plaintiff described as "burn out" but which a psychiatrist, Dr Lord, had apparently termed an adjustment disorder. During the period between January 1998 and January 2000 the plaintiff was under the care of her general practitioner, Dr Ong, and she consulted two psychiatrists, Dr Lord and Dr Shannon. Her condition was serious enough for her to be hospitalised for one week at the Attadale Hospital and she was prescribed anti-depressant and anti-anxiety medication. 74 As a result of her illness, the plaintiff's working hours for the first defendant reduced from full time to part time. Pursuant to the terms of her policy she was entitled to be paid the difference between what she was able to earn part time and what she would have earned full time. 75 In order to obtain payments, the plaintiff was required to sign and submit to Zurich a form called A Continuing Claim Form which had provision for her to disclose any work she was undertaking and her monthly earnings. Dr Ong, was required to make a statement which included his diagnosis, a description of her treatment and a description of the work duties which she was able to undertake. 76 Unknown to both Zurich and, so it would seem, Dr Ong, the plaintiff worked as a nursing instructor at Curtin University in 1999 between about mid-April to early June and then again from mid-September to early November. During those periods she worked 24 hours a week for the first defendant and 14 hours a week for Curtin University. 77 The plaintiff conceded that she understated her income to Zurich in three continuing claim forms dated 28 August 1999, 18 October 1999 and 25 November 1999. Those forms are exhibits 27, 28 and 29. In each of
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them in answer to the question "What duties are you performing?" the plaintiff wrote "general nursing duties". As to her monthly earnings she only disclosed her wages for nursing and not teaching. 78 Further, the plaintiff agreed that she did not declare to the Australian Taxation Office the income that she received from Zurich. In fact, the plaintiff agreed that she had not submitted an income tax return after 1996-1997 or 1997-1998. 79 The plaintiff's explanation for failing to file her tax returns was that although she was aware of her obligation to file returns in a timely way, the pressure of work and stress generally meant that she was unable to file her returns although she had always intended to do so. She also said that her position was not assisted by her accountant relocating to Bunbury. In my opinion, none of these excuses are credible. The failure to lodge returns was over too long a period of time for any of these explanations to be capable of acceptance. Moreover, the evidence shows that the plaintiff is an educated, capable and well organised woman who could have prepared and lodged her returns had she wanted to. 80 Although the plaintiff asserted that she did not deliberately withhold from Zurich that she was earning income from Curtin University, I cannot see any other reasonable explanation for this omission other than a desire to obtain from Zurich greater benefits than she was entitled to. 81 In my opinion, the plaintiff's conduct in relation to Zurich and the Australian Taxation Office impacts adversely upon the plaintiff's credibility in the case before me. In the first place, the plaintiff's behaviour shows to use the words of Mr Zilko in his written closing submission, at the very least an indifference to the truth. It also shows, in my opinion, a preparedness to deceive where matters of money are involved.
(iii) Failure of plaintiff to tell Drs Law and Terace of her prior psychiatric history 82 After 30 December 2000 the plaintiff consulted Drs Law and Terace. Both defendants submitted that the plaintiff, when she was seen by them did not provide them with an accurate psychiatric history. In particular, it was submitted that the plaintiff had misled Dr Law and Terace by not revealing that she had been diagnosed with psychiatric illness by Dr Lord and had received psychiatric treatment from Drs Lord and Shannon.
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83 The evidence establishes that the plaintiff's general practitioner, Dr Ong, referred the plaintiff to Dr Law to deal with the psychiatric effects of her injury. She later saw Dr Terace to obtain a medico-legal opinion on 28 January 2004.
84 As I earlier observed, the plaintiff agreed that prior to 30 December 2000 and between January 1998 and January 2000 she suffered from what she called "burnout" which was one of a number of reasons why she reduced her hours of work during that time. She was prescribed anti-depressant and anti-anxiety medication and she was hospitalised for a short period. She saw psychiatrists, Drs Lord and Shannon. Her condition was serious enough to cause her to make a claim under the Zurich policy, and as a result she received benefits for approximately two years. 85 In her evidence (T187) the plaintiff agreed with the proposition put to her by Mr Zilko that it was essential that she provide any treating doctor with an appropriate history. At T188 she said that she told Drs Law and Terace about her psychiatric history. In particular, she said that she told Dr Law that she had suffered from burnout in 1998 and 1999. She agreed that information would have been relevant to Dr Law. With respect to Dr Terace, although she initially said that she did not recall whether she was asked about her "burnout", she went on to say (T189) that she was sure that she answered any questions he asked concerning her psychiatric history. 86 In his evidence, Dr Law said that he did ask the plaintiff for her history, although the main focus was related to the incident at St John of God Hospital Murdoch (T450). He said that the plaintiff had not told her that she had suffered "burnout" (T448). This answer contradicted the plaintiff's evidence on this point. Dr Law went on to say in cross-examination that he had not been told about the plaintiff's consultations with Drs Law and Shannon, nor was he told that her "burnout" had led to her reducing her hours of employment. 87 In Dr Terace's report dated 30 January 2004 (exhibit 46) at p 8 Dr Terace stated: "Past psychiatric history Ms Gibson denied any former psychiatric disorder or significant psychological condition. Similarly, any former contact with a consultant psychiatrist, clinical psychologist or psychiatric services was denied."
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88 In his evidence he confirmed the plaintiff gave him no prior history of psychiatric treatment.
89 At T886-T887 Dr Terace said; "I'm always very careful to attempt to elicit whether a person has seen a psychiatrist, psychologist, therapist or counsellor prior to the index event or whether they have suffered any kind of psychological condition or emotional problems prior, and those are probably the terms that I would use in trying to elicit that information under most circumstances. It's important because I need to know whether any psychiatric condition I find represents the relapse of a former condition, the continuation of a former condition or the aggravation of a former condition as distinct from the contraction of a new condition." 90 I accept the evidence of Drs Law and Terace and I find that the plaintiff did not tell Dr Law about her "burnout", nor did she tell Dr Terace anything about her past psychiatric history. I do not accept the plaintiff's evidence that she told Dr Law about her "burnout", and that she answered Dr Terace's questions concerning any prior history. In my opinion, her failure to disclose her prior psychiatric history was not accidental, nor was it borne out of any lack of appreciation of the importance of providing an accurate history. In my opinion, the plaintiff chose to deliberately mislead Drs Law and Terace about her prior psychiatric history. In my view, the likely reason for this, was that she wished to portray all of her psychological and psychiatric problems as being caused by the events on 30 December 2000, and not any other event. The plaintiff's lack of candour in her dealings with Drs Law and Terace reflects adversely on the plaintiff's credibility. It indicates a preparedness to tailor the truth in order to support her cause.
The plaintiff's demeanour 91 Whilst the plaintiff's demeanour was not decisive to my findings relating to the plaintiff's credibility, her demeanour had some weight with respect to them. The plaintiff was examined-in-chief and cross-examined at length. I found her to be somewhat histrionic and prone to exaggeration. Under cross-examination, in particular, she tended to, on occasions, deliberately avoid answering questions. The plaintiff was prone to rationalize after the event. She tended, in both examination-in-chief and cross-examination to want to make speeches rather than answer questions, even when she was requested by counsel
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and by me not to do so. I think that these measures were employed to avoid facing up to the deficiencies in her evidence.
Findings as to the plaintiff's credibility 92 For the reasons I have outlined I do not find the plaintiff to be an honest and reliable witness.
Some matters going to the second defendant's credibility 93 Mr Herron, on behalf of the plaintiff, submitted that the second defendant's account of events should not be accepted. He submits that the reduction of the Colles' fracture was a common procedure undertaken by him, and that he would have no reason to recall the reduction of Ms Scott's fracture if nothing untoward had occurred. Mr Herron noted that the second defendant was unable to give any details of the other procedures he had undertaken on 30 December, and so he argued, the second defendant, in truth, had no detailed recollection of the procedure he used to reduce Ms Scott's fracture. 94 Mr Herron submits that the second defendant's account of what occurred during the reduction of Ms Scott's fracture was based upon his normal procedure in reducing Colles' fractures rather than upon his recollection of what actually occurred. In effect, Mr Herron was submitting that the second defendant reconstructed the events of 30 December 2000 by reference to the second defendant's usual procedure in reducing Colles' fractures. 95 It seems to me that that submission was based, at least in part, upon the following exchange between Mr Herron and the second defendant in cross-examination at T752 and T753. "Yesterday, Dr Forward, you gave some evidence about what a Colles' fracture is and I think your evidence was it's the second most common fracture which is experienced by doctors?---Yes. Is it a fracture which is common in elderly patients?---It is. It's common because elderly patients often fall down onto an outstretched hand?---Yes. Again, your evidence is that you probably performed a reduction of a Colles' fracture about one a fortnight, twice a month over your career?---Yes.
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You can't recall on each of those occasions what you specifically did?---I could. So when have you been practising as an orthopaedic surgeon from?---Since 1990. You are able to say now are you that in respect of every Colles' fracture you reduced each fortnight, you have an independent recollection of exactly what you did?---I think with help I could recollect the details. I think your evidence is you have got a standard procedure that you go about in reducing Colles' fracture?---Yes. Isn't that really what you are saying? Your recollection about what you normally do is, this is what you inevitably do?---The general template is inevitable, yes. So you really can't independently recollect each time you reduced a Colles' fracture, who the patient was, what specifically you did, the nature of the fracture, that sort of thing?---Well, I am saying slightly more than that, I think I am saying that with help, with the patient's face and the x-rays, I could recall details of those patients. And for all the patients that I look after. So going back to 1990, if you reduced a Colles' fracture in January 1990, if the records were given to you, you say you could now remember exactly what you did in terms of that patient?---With help I think I could reconstruct my recollection of the circumstance. When you say with help, what sort of help are you talking about?---Well, especially if I saw the patient's face, saw the patient's name, the patient's daughter, those sorts of things. Would you want to look at records again?---Sometimes records would be helpful but many times I would recall the situation." 96 The second defendant's evidence was that he recalled Ms Scott's case. One reason for this was that the procedure he adopted was, as he put it at T754 "a trial of reduction not a closed reduction". By this I understood him to mean that he tried to manipulate Ms Scott's fracture without anaesthetic but the attempt was unsuccessful as the patient
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complained of pain. Further, the second defendant testified that he was first asked about the matter in March 2001 which was not a long period of time after the procedure itself, especially, as the evidence suggests that the second defendant was on leave during part of January and February 2001, and so would not have performed as many Colles' fractures as he might otherwise have done. The second defendant said in his evidence that he thought, although he was not certain, that Ms Scott's case was the only Colles' fracture reduction he had reduced before he was requested to recollect the circumstances of Ms Scott's case. I do not think that the effluxion of time between 30 December 2000 and March 2001 when the second defendant was first asked to recall the procedure involving Ms Scott is so great as to lead me to a conclusion that the second defendant had no actual or detailed recollection of what occurred on 30 December 2000. I also think that the fact that the procedure involved an attempted reduction of the fracture rather than a successful reduction of the fracture made the procedure memorable, at least in the short term. For these reasons I do not accept Mr Herron's submission that the second defendant, in reality, has no actual recollection of what occurred. I find that the second defendant did have an actual recollection of the relevant events. 97 I do think there is some relevance to the second defendant's evidence as to his normal practice in reducing Colles' fractures. I think it is highly unlikely that the second defendant would have attempted to reduce Ms Scott's fracture in the manner described by the plaintiff because the method described by her is a too radical departure from the second defendant's normal procedure. It seems to me inconceivable that the second defendant would have adopted any other way of attempting to reduce the fracture other than by use of his normal procedure. 98 The second defendant's normal procedure in reducing Colles' fractures was graphically depicted in the photographs which were admitted into evidence as exhibit 14. Those photographs are not a reconstruction of what occurred when the second defendant attempted to reduce Ms Scott's fracture, but rather are meant to illustrate the plaintiff's usual procedure in reducing a Colles' fracture. The second defendant's evidence as to his usual procedure is as follows:
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is asked to suspend the patient's arm by the index and middle finger, by those two fingers only, and to lift the upper arm off the bed or a couch or adjacent area. So that means the patient adopts a stop sign position and their arm is suspended by an assistant holding the index and middle finger. You are holding your arm up with the forearm in a vertical position, held out to the side of the body?---That's correct. Gravity allows for traction, attempting to disimpact those interdigitating fracture fragments. That means the weight of the patient's arm is used to drag the arm – the fracture fragments away from the assistant who is holding the fingers by those two fingers. That's the first step. During that period of time, the opportunity is usually taken during a two or three minute gravity traction period to prepare the subsequent Velband, plaster and crepe bandage and to obtain warm water in a bowl to enable the preparation of the plaster. After that two or three minutes, the next phase of fracture reduction of the Colles' fracture involves an attempted active disimpaction, if it's indicated. That involves the surgeon taking hold of the two fingers from - - - Perhaps if I can just stop you there. Can you only – and I realise you may have been doing this anyway but can you confine your description to the method you would employ at these stages?---This is the method that I invariably employ to a greater or lesser extent. The next section that I was coming to is fracture disimpaction whereby I always take hold of the patient's two fingers from the assistant. In one of my hands I would hold the patient's index and middle finger and with the other hand I would push on the forearm, just over the biceps area, and personally try and apply a little more traction, if it was indicated. That's active disimpaction by the surgeon of the impacted fracture fragments. The next stage involves pushing on the fracture fragments and it would be helpful to refer to one of those pages of the photographs. Yes, if I could ask that the witness be shown MF1 14? ---If I may just go through those photographs, Mr Quinlan, photographs 3 and 4 show an assistant – who in this case happens to be a lawyer – holding on to two fingers.
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Yes, that's the first movement that you're showing? ---That's the gravity traction. Yes?---Page 5 and 6 refer to active disimpaction, which is a general part of the Colles' fracture reduction but is not necessary in all circumstances. So it may be done in a particular case but if it's done, it's done as depicted, the way that you have shown - - -? Yes?---The third phase involves fracture reduction and that's shown in figures 7, 8, 9, 10, 11 and 12. Figures 7 to 12 are pictures of an attempt to achieve a simulated fracture reduction. They are pictures from a different angle of effectively the same movement?---The same movement from a different angle. The lady lying on the couch is not a patient, she does not have a fracture. This is a simulation. It's simulated to describe thumb pressure over the distal radius to push the fracture fragment over into the correct position. Once that's occurred, in your practice what then happens?---The next step is to apply a Velband dressing – no, excuse me, the intervening step then is to pass the patient's arm back to an assistant, asking the assistant to hold the index and middle finger with the arm suspended in the stop sign position once more. Gravity then maintains the fracture reduction in the position that it's been achieved. So going back into the original position that the assistant - - -?---Going back into the original assistant's position. In terms of the way in which you perform a Colles' fracture reduction, from the time that you take the arm and apply the act of traction which is depicted in photograph 5 to when the arm is, as you said, given back to the assistant, physically what involvement does the assistant have in any manoeuvre that you apply?---During that time the assistant is standing at ease. Depending upon the availability of other help, the assistant then might pull the plaster trolley closer and busy herself in other ways. You have said the arm is returned in the upright position to the assistant and what occurs then?---The patient's arm is suspended
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again with gravity traction holding the reduction. The pre-prepared Velband is wrapped in a spiral motion around the forearm. The plaster is wet in warm water. I like it to be at 38 degrees. The plaster is then wrapped around the forearm while the patient's arm is still suspended by the two fingers and a crepe bandage is applied to the outer aspect. That process takes two to three minutes." 99 There were suggestions in the evidence of the plaintiff that the second defendant adopted the procedure described by her whilst in a bad mood because Ms Scott had broken her fast. Having seen and heard the second defendant's evidence I do not think that is likely. Even if the second defendant was in a bad mood I do not think that would have led him to pull Ms Scott's arm in a forceful, downwards motion, without anaesthetic.
The evidence of Professor Allan Skirving as to the reduction of the Colles' fracture 100 Professor Skirving is a consultant orthopaedic surgeon and a clinical Associate Professor at Royal Perth Hospital. He has close to 30 years' experience in orthopaedics in South Africa, the United Kingdom and Western Australia. He has been head of the Department of Orthopaedics at Royal Perth Hospital. He clearly has skill and experience in orthopaedic procedures. No-one before me suggested that he was not sufficiently qualified to give expert evidence before me. 101 Professor Skirving was retained by the solicitors acting on behalf of the second defendant to comment, amongst other things, on two issues. The first issue was whether the technique adopted by the second defendant was an appropriate technique, and second, to comment on the effectiveness of the technique apparently observed by the plaintiff. 102 Professor Skirving was provided with the pleadings and other documents which disclosed the plaintiff's and the second defendant's version of events. 103 In Professor Skirving's report dated 1 July 2003 (exhibit 45) Professor Skirving expressed the following opinion as to the versions of the second defendant and the plaintiff: "Dr Forward's account is a usual description of a normal manipulation of a Colles' fracture as performed by some orthopaedic surgeons in some circumstances. It is important to
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recognise that the mechanism of reduction, as described by Ms Gibson, cannot be accurate. To manipulate a fracture such as this into the correct position, requires the surgeon to apply forces on the distal aspect of the fracture, i.e. the wrist and hand. He cannot perform the reduction by pulling the arm and forearm against resistance applied by somebody holding the fingers. I cannot, of course, know whether Dr Forward did perform the procedure as he describes but I can state that his is an accurate description of the way in which such a procedure would usually be performed." 104 In his evidence, Professor Skirving said that it was "an absolute basic principle" that the manipulation of a fracture requires the doctor performing the reduction to be holding the displaced part of the bone. The difficulty with the plaintiff's description of the reduction, said Professor Skirving, is that the plaintiff's version has the nurse holding the displaced part of the bone, and the doctor in a position where he would be simply unable to correct the alignment, angulations or position of the fractured bones. He put it this way at T844 and T845. "You have described what is necessary. Why is it that you say that you can't perform it by the surgeon pulling the arm and forearm against resistance applied by somebody holding the fingers? What - - -?---Because that's not what you're trying to correct. You're trying to correct the position of the distal segment. Holding it and trying to move this requires the assistant then to be manipulating and moving it into the required position. It's not that person's job to do that." 105 Professor Skirving was shown the photographs comprising exhibit 14. He was asked to comment, particularly with respect to photograph 5 in that exhibit. That photograph showed the second defendant holding the right arm of a woman who was lying on a bed, the second defendant had the arm in what has been described as a stop sign shape, that is the arm was at a 90 degree angle to the bed. The photograph shows the second defendant holding the right hand of the woman by the fingers, and his left hand is on the woman's bicep. Professor Skirving said that he understood the purpose of that action was to correct some of the alignment of the bones if there had been some displacement of the bones, and also to correct some shortening if there had been any impaction of the bones. Professor Skirving said that that was not a method he would use, but he did not say that it was an inappropriate technique. As to photograph 7 in exhibit 14, that shows the second defendant holding the
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woman's wrist so that he is standing behind the wrist with the fingers pointing away from him. What is shown in that photograph is the technique used by the second defendant to manipulate the distal end of the fracture. Professor Skirving said that he does this differently by standing in front of the hand. I do not see that that difference is anything more than one of personal preference rather than anything which goes to the effectiveness of the technique. Professor Skirving did not say otherwise. 106 I accept Professor Skirving's evidence that the second defendant's usual technique for reducing a Colles' fracture was orthodox and effective. I also accept his evidence that the plaintiff's description of how the second defendant attempted to reduce Ms Scott's fracture would not be effective. |