Hammond v Heath & Anor

[2010] HCATrans 272

[2010] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 2010

B e t w e e n -

MICHAEL STEVEN HAMMOND

Applicant

and

DOUGAL HEATH

First Respondent

THE MINISTER FOR HEALTH

Second Respondent

Application for special leave

GUMMOW J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 9.06 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please the Court, I appear for the applicant in this matter.  (instructed by Friedman Lurie Singh & D’Angelo)

MR D.R. CLYNE:   May it please the Court, I appear for the respondents.  (instructed by Jarman McKenna)

GUMMOW J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honours, can I go directly to some factual matters which are in dispute, starting at paragraph 3 of our summary of argument at page 84 of the application book.  One of the matters which the respondent disputes is whether or not the pre‑planned lavage procedure to take place on the material date in this case, namely 28 August 2001, was pre‑planned and routine.  We have caused to be filed before your Honours the relevant transcript pages referred to in our summary of argument, and in the supplementary book on page 72 of the book, transcript page 363, in the second paragraph, 10 lines from the bottom, was Professor Aitken describing the policy at Sir Charles Gairdner Hospital talking about the standard practice worldwide and in the penultimate paragraph on that page, describing about the state of the wound being left open.  Also at page 401, you have the respondent himself, which is the last page of the supplementary book, describing the routine pre‑planned lavage procedures that he undertook as of course.  That is the first factual matter.

BELL J:   You took us firstly to your application book at 84.  The references that you are now taking us to, I am just trying to pick up where they come from.

MR NUGAWELA:   I am so sorry.  It is the applicant’s book of materials intended to be referred to at the hearing, and there is an index page, your Honours ‑ ‑ ‑

BELL J:   I have found the references in your supplementary book.  I am trying to understand where they appear in your submissions at 84 on the ‑ ‑ ‑

MR NUGAWELA:   I am so sorry.  They do not appear at 84.  They appear elsewhere.  If your Honours could make a note ‑ ‑ ‑

BELL J:   I am trying to work out where to make the note, that is all.

MR NUGAWELA:   It would be convenient, your Honour, to make the note at paragraph 3 on page 84.  I am so sorry.  The other matters arise from paragraph 6.  At paragraph 6, there is a relevant finding of the trial judge at 225 of the decision, application book 54, that essentially that it was the mesh that:

caused the abdominal infection and the fistula to persist and rendered necessary the –

subsequent operations on 25 and 28 August.  That was supported, of course, with the preponderance of expert opinion that until that mesh was removed, there was always going to be continued infection and it would not break down, and unless the mesh was removed the infection and fistulation would continue.  We say in paragraph 6(a) in the third line, in relation to the evidence of Professor Faulkner, that he agreed that the mesh protruded outside the wound opening and that was what prevented the wound from healing.  The respondent, in its summary of argument, does not dispute that. 

The other matter of a factual nature arises on paragraph 6(c) on page 4, and at line 11, there is my sentence that “Dr Hool’s evidence was that his condition appeared medically stable” in August 2001.  My learned friend correctly points out that that was not Dr Hool’s evidence.  If your Honours could just delete that sentence, please.  But nevertheless, the two matters which we point out in paragraph (c) that the learned judge or Commissioner overlooked was the evidence, firstly, of Professor Faulkner that he would have removed the mesh during the one‑hour long procedure on the material date if it would not have compromised that procedure.

GUMMOW J:   Where do we see that?

MR NUGAWELA:   I am taking your Honour to Professor Faulkner’s evidence at ‑ ‑ ‑

CRENNAN J:   This is at (c), is it?

MR NUGAWELA:   This is at 6(c), but Professor Faulkner’s evidence in that respect – page 317, your Honours, at the supplementary book page 69, and the second paragraph, the fifth line:

Surgically, I would certainly consider removing the mesh at that operation if it was found to be a task that was not going to compromise the outcome of that operation . . . 

Why is that?‑‑‑Well, I’d remove it because there’s a foreign material in the presence of contamination, but the big question is whether –

it was able to come out, the ingraining issue.  Now, he did not say, in fact, that it was ingrained.  He was not there at the time, and your Honours will recall the finding of the trial judge that the respondent himself did not say that the mesh was ingrained.  The respondent ‑ ‑ ‑

CRENNAN J:   Was there some evidence that over time the mesh tended to be caught up with the body tissue?

MR NUGAWELA:   Yes.  There were two theories that were put forward by the experts, obviously not in the transcripts before your Honour.  One body of opinion was that over a period of time, the mesh would get ingrained in the body tissue, and the other body of expert opinion was that, however, if the mesh was infected, the body would reject it and push it out, and that explains the phenomenon described in the clinical notes from June 2001, that the mesh kept protruding and was being rejected because it was continuously infected, pushed out, and physically, of course if it was pushing out through the open abdominal wound, the wound would never close so you have this vicious cycle.

BELL J:   Just on the page that you have taken us to of the supplementary book, it is the transcript at 317, Professor Faulkner at about the middle of the page went on to say:

The bigger question is whether or not you compromise the clinical outcome of that surgery in a difficult situation by removing it -

As I understand it, Professor Faulkner’s overall opinion, if I can put it that way, was that it is a matter for clinical judgment.

MR NUGAWELA:   Absolutely, and of course he said you would have to ask people at the operating theatre in August 2001 what the clinical condition was.  Of course, that comes back to the second part of our appeal, and that is the life‑threatening condition, which I will address your Honours on shortly.  Can I come back to the factual matters in dispute, and I am still at paragraph 6(c) on page 4 of the book.  The second aspect, of course, is the objective clinical record as to what the applicant’s condition was, as at 28 August 2001.  The trial judge did not advert to the objective clinical record.  The Court of Appeal dismissed it as being cryptic.  But we set out at paragraph 6(c) on page 4 exactly what the clinical condition was, in open inverted commas:

“was not in immediate need of ICU” . . . “post-operatively uncomplicated” . . . was to be transferred out of ICU . . . “pain controlled”, was “sleeping comfortably” and “stable overnight”.

The procedure itself, the routine lavage procedure on 28 August, the material procedure was marked down as being stable and the procedure was uncomplicated.  All of that objective evidence was just described in one word by the Court of Appeal as “cryptic”.  The next matter of factual dispute is in paragraph (d) and the assertion that we make that by the material date the mesh had already been surgically divided and was presenting itself ‑ ‑ ‑

GUMMOW J:   The more matters that there are in factual dispute, the less suitable this appears as a vehicle for special leave.

MR NUGAWELA:   I defer to your Honour’s wisdom, but it is important for me to clarify the factual basis so that the points that we say emerge in this special leave application emerge crisply and are not unclouded.  There are just two more points, your Honour, if I may very briefly, and that arises from paragraph (d) on page 86 of the application book, and our assertion that the mesh had been surgically divided and was constantly presenting itself proud of the wound. 

That is precisely what Professor Faulkner said at transcript 332, and on that page – this is page 70 of the supplementary book, your Honours - he accepted in cross-examination that as at August 2001 some small areas of mesh had been coming out of the wound.  There was also an agreed chronology, as we say in our summary, filed in the court below that based on the clinical records between the period June 2001 and August 2001 the mesh was observed clinically to be presenting and protruding into the open wound surface.  The last factual matter arises from our paragraph 6(g) and that began - I have taken your Honours to the references as to whether the procedure on the material date, 28 August, was a routine pre‑planned lavage procedure. 

Can I come then immediately to the important points of principle in this part of my submissions which are, we say, special leave questions 1 and 2 on page 83 of our book.  Starting at paragraph 8 of our summary of argument we say that even if the statistical risk of complications involving the mesh was not five per cent, and was closer to two per cent, one obviously has to take into account not just the probability of its occurrence, but the extent of the injury that can be caused.  It was Dr Kubacz’s evidence that this is a life‑threatening situation and that is found at application book 106, the reference to that, in paragraph 10(i).  He said that “the most serious complication and . . . potentially it’s a life threatening complication”.

So statistically a two per cent chance is not far-fetched or fanciful, but when it does happen, the gravity of its consequences can be life threatening.  This, of course, is the risk of complications with the mesh potentiating the infection and fistulation.  In paragraph 9, we make the submission that really there is a continuing duty here and that duty starts from the point of the insertion of the prosthesis and continues right throughout the care under the surgeon and, in this case, that terminated towards the end of 2001.

The fact that there was no occasion clinically prior to 28 August 2001 when that could have been remedied by the provision of advice, information and an option to the patient when the complication started to manifest itself goes to the question of breach, in our submission, not the existence of the duty of care.

BELL J:   I am just not sure that that submission runs counter to the approach of the Court of Appeal.  On application book 66 at paragraph 16, it seemed to me that the court was accepting, consistently with Rogers v Whitaker, a duty to advise in relation to risks associated with a surgical appliance in place, but it was not so much that as the issue, but factually, given that the circumstances did not arise prior to the further procedures in August, that the matter did not ‑ ‑ ‑

MR NUGAWELA:   There is no doubt that in that passage his Honour made reference to the correct principles in Rogers v Whitaker, but at paragraph 35 on page 73 of the application book, his Honour resolved the question as arising from the existence of a duty.  This is on page 73, paragraph 35, the last three lines.  The learned trial judge, on the other hand, did not resolve this matter on the basis of duty of care, but rather on the basis of breach, and I can take your Honours to page 45 of the application book ‑ ‑ ‑

BELL J:   I was just trying to identify where you say as a matter of law on the issue of duty the Court of Appeal erred.

MR NUGAWELA:   Yes.

CRENNAN J:   I think in that context, you ought to look at paragraph 33 on page 72, where his Honour the Chief Justice is dealing with the recognition of the duty of care in Rogers v Whitaker, but then it appears in response to the way in which the case has been put makes that observation in the last sentence there.

MR NUGAWELA:   Yes.  That is our submission, whereas the learned trial judge, at application book 45, paragraph 181, resolves the issue of failure to warn, not on the basis of the existence of a duty, but question of breach.

BELL J:   Whereabouts on page 45?  Can you take us to the paragraph number?

MR NUGAWELA:   I am sorry, your Honour, paragraph 181.  It starts on the previous page under the heading “Failure to warn”, discussion of Rogers v Whitaker and the like and concludes the matter on ‑ ‑ ‑

BELL J:   Yes.  I am sorry, I am lost.  As I understand it, you are contending that there is some error on the part of the Court of Appeal with respect to the question of duty and the difficulty that I am having is identifying what you say that error is and where it appears.

MR NUGAWELA:   The error, we say, is in the learned Chief Justice’s reasoning where, on pages 72 and 73, his Honour comes to the conclusion that the evidence did not establish that a duty of care could arise and that this was not a delegation to the patient of the responsibility for deciding, in advance of the surgery, the course that should be followed.  We say that that is a statement of the scope of the duty of care.

BELL J:   Yes.

MR NUGAWELA:   We say that that is an incorrect statement of principle.  Can I elaborate upon paragraph 10 of the summary of argument.  As I said to your Honours, the evidence in relation to the ingraining issue, we have captured that in paragraph 10 and in the transcript references at 315, 317, which I wish to take your Honours to very briefly.  At 315, the evidence of Professor Faulkner, he said in the third paragraph he did not know whether or not it was ingrained, and you should ask the respondent – the surgeon – who…..The respondent, of course, never said it was ingrained, and at 317, the third paragraph, to similar effect, also at 332, and at 343. 

We say in paragraph 11 that the continuing duty arose at least by the time complications developed in May 2001 and that the continuing duty was always there, just a question of breach when the opportunity should have been taken, but was not taken, and that is exactly how the trial judge resolved that at appeal book page 44, which I have taken your Honours to.

BELL J:   Is your point that the trial judge determined the issue against you on breach, and the Court of Appeal, in your submission, approached a conclusion that the trial judge was correct in outcome, but by reference to confining the scope of the duty.

MR NUGAWELA:   Absolutely.  Your Honour has encapsulated the arguments, and the source of that submission arises from the passage at ‑ ‑ ‑

GUMMOW J:   Suppose they did, why were they wrong?

MR NUGAWELA:   We say it is a wrong principle, your Honour Justice Gummow, which limits the continuing duty of care properly owed by a treating practitioner during the course of treatment to continuously warn and advise a patient, at least at the time when adverse symptoms start

to appear, which in this case was June 2001, against a preponderance of all the evidence that until the mesh was removed one is not going to be able to fix the problem.

It is a point we further submit at paragraph 21 of our summary of argument, arising from Rogers v Whitaker at page 489, that sometimes really there cannot be a separation between an advice given as to future options and the furtherance of treatment, and that the learned trial judge’s formulation that an attempt to actually provide that advice amounts to a delegation of the treatment prerogative of a practitioner flies in the face of the duty to continuously warn.

Questions arise, of course.  When does the duty arise?  Is it at the point of insertion where the two per cent risk has to be foreseen?  Is it at the point when clinical symptoms first manifest itself, in this case, June 2001, where the complications arose, or is it at a point where the first opportunity to remedy the breach occurred, as we say in the special leave questions 1 and 2. 

Can I immediately come to what the remaining grounds are, the visitorial grounds, if I can put it that way, and these are grounds 2, 3 and 6, and immediately I accept that I have to confront two aspects of the evidentiary matters that do not appear to be with me.  The first is this, but we say it demonstrates error on the part of the Court of Appeal.  I notice my time is up, your Honours.  I ask that your Honours treat my submissions as read.

GUMMOW J:   Yes, Mr Clyne.

MR CLYNE:   If it please the Court.  This is a matter entirely of fact where the applicant failed to establish its case.  The claim initially formulated was that there was negligence on the part of the respondent by failing to remove the Marlex mesh on one of four occasions, 25 May, 28 May, 25 August and 28 August 2001.  Ultimately, when we got to the appeal, the only one left was in respect of 28 August.  The others have clearly failed because the medical evidence suggests – not strongly supported the proposition that it was unsafe to take it out.  This man was critically ill.  The concern of the respondent was to save his life.  There were a number of reasons given in the evidence as to why they did not take the mesh out, and one was that they would not be able to sew him up again, because of the enormity of the wounds that he had.

In terms of the surgery on 28 August 2001, whilst it was pre-planned to a degree, the respondent remained critically ill.  The only evidence given in respect of that was that of the respondent to the effect that the applicant had been critically ill on 25 August, and he remained so on 28 August.  He

was not cross-examined.  He was not challenged in any way, shape or form as to that opinion.  The clinical notes that my friend now seeks to rely upon were not put to the respondent to explain if there were any inconsistencies.

So our case is simply that there was no evidence from any of the experts that it should have been removed on any of those occasions.  To the extent my friend has referred to Professor Faulkner this morning, it is clear from what he said that Professor Faulkner said, it would be a matter of clinical judgment that if it did not interfere with the other surgical procedures and intentions then it may have been considered.  But there was no evidence any stronger than that.  That is why this applicant failed on the evidence.  There is no point of law here.  It is simply a fact matter, and I can repeat that 100 times and take you to my submissions, but that frankly is it.  Thank you, your Honours.

MR NUGAWELA:   Your Honours, my learned friend’s reference to the life‑threatening situation enables me to make the submissions I had earlier intended to make in relation to the visitorial grounds by way of reply.  There are two aspects to that - the objective clinical records, which provide more than…..of documents and of course the demeanour of the respondent and his evidence that the patient would have been in a life‑threatening condition, to which I turn. 

It starts with the deliberate strategy of the respondent below to keep its powder dry by not putting the proposition that this patient was in a life‑threatening situation to the plaintiff’s witnesses to enable comment to be drawn.  Your Honours would recall the references to Dr Kubacz who said “I would have gone in clearly on 28 August and fixed it.  I looked at all the clinical records, and that was the perfect opportunity to do it”.

BELL J:   Dr Kubacz’s evidence was not accepted entirely by the trial judge.

MR NUGAWELA:   I accept that.  It is a point that my friend makes against me.  I cannot argue with that.  But the detriment does not just stop there, because not only did the non-observance of Browne v Dunn prevent Dr Kubacz from responding to it, it also hampered the ability of the plaintiff to put this in cross‑examination to other expert witnesses throughout the trial, and the respondent ‑ ‑ ‑

CRENNAN J:   But there would have been the objective evidence, would there not, in relation to the time in which the patient was in the intensive care unit?

MR NUGAWELA:   There was.

CRENNAN J:   Over those several months, May to August.

MR NUGAWELA:   There was.  None of this life‑threatening theory was put to any of the plaintiff’s expert witnesses below.  It was only when the respondent went into the witness box - he was the last witness in this entire trial - that he said his condition would have been life-threatening.  It might be that - two other points, your Honours - it might be that ships may have passed in the night as a result of these accidents, but if special leave were to be granted, and this honourable Court got to see the whole record, it might be that an appropriate remedy may not be judgment in the amount sought but simply a retrial.  It arose from that conscious decision on the part of the respondent not to put that proposition to Dr Kubacz we have put - and the other witnesses called by the applicant.  We say that those grounds 2, 3 and 6 collectively support the exercise of this Court’s visitorial jurisdiction sitting as it does at the apex of the West Australian judicial hierarchy.  May it please the Court.

GUMMOW J:   Thank you.  We are not satisfied that from the reasons of the Court of Appeal of the Supreme Court of Western Australia there arises any question of legal principle to attract a grant of special leave.  Rather, the decision of the Court of Appeal turned upon the state of the evidence led at the trial.  Special leave is refused with costs.

AT 9.33 AM THE MATTER WAS CONCLUDED