Harwood v Gayler and Cleland
[1996] QCA 461
•1/11/1996
| IN THE COURT OF APPEAL | [1996] QCA 461 |
| SUPREME COURT OF QUEENSLAND |
Appeal No 2567 of 1996
Brisbane
[Harwood v. Gayler & Cleland (a firm)]
BETWEEN:
ELAINE HARWOOD
(Appellant) Plaintiff
AND:
GAYLER & CLELAND (a firm)
(Respondent) Defendant Macrossan CJ
Pincus JAWhite J
Judgment delivered 01/11/1996
Separate reasons for judgment of each member of the court; Pincus JA dissenting.
ORDERS:
1. Appeal allowed.
2. Vary the orders below so that there be judgment for the appellant in the sum of $81,833.25 together with interest thereon in the sum of $82,250.38 against the respondent.
3. The respondent to pay the appellant's costs of and incidental to proving liability against the respondent together with one-half of the balance of the appellant's costs below of and incidental to the action to be taxed.
4. The appellant to pay one-half of the respondent's costs below of and incidental to the action other than the costs of and incidental to the issue of liability as dealt with in 3 above to be taxed.
5. The respondent to pay the appellant's costs of and incidental to the appeal to be taxed.
CATCHWORDS: | SOLICITOR'S NEGLIGENCE - failure on part of respondent firm of solicitors to prosecute actions for personal injuries diligently - whether appellant would have succeeded in her actions - assessment of loss of chance - whether liability for professional negligence established. |
| Counsel: | Mr P Keane QC, with him Mr G Mullins and Ms P Sweetapple for the appellant. Mr R Chesterman QC, with him Mr M Pope for the respondent. |
| Solicitors: | Quinn & Scattini for the appellant. Connolly Suthers for the respondent. |
| Hearing Date: | 12August1996 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2567 of 1996
| Before | Macrossan CJ Pincus JA White J |
[Harwood v. Gayler & Cleland}
BETWEEN:
ELAINE HARWOOD
Plaintiff
AND:
GAYLER & CLELAND (a firm)
Defendant
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 01/11/1996.
White J has referred to the matters that are relevant for determination of this appeal.
I agree with her conclusion that the appeal should be allowed and shall add some reasons
of my own in support of that view.
An action had been commenced in November 1986 against Dr Clark and the
Cairns Base Hospital claiming damages for negligent treatment arising out of the fusion
operation performed on the appellant on 10 November 1983. The associated separate
cause of action pursued by the appellant against Mrs Parsons requires no detailed
attention since it is not involved in the appeal. For reasons sufficiently appearing from the observations of White J and in the judgment below, it can have an effect in the adjudication
of this appeal only insofar as it bears upon the question of costs, and because the trial
Judge seems to have assessed damages for the plaintiff's overall pain and suffering
without allowing for any extent to which it was attributable to the episode in 1981 for which
the plaintiff had unsuccessfully blamed Mrs Parsons.
The proceedings against Dr Clark and the Hospital Board were not properly
prosecuted by the appellant's then solicitors, the respondents to this appeal, and the result
was that when in February 1990 leave was sought to renew the writ in the action against
them, it was refused. Since the relevant limitation period had then expired the right of
action was effectively lost. The further action for damages brought by the appellant against
the solicitors themselves for failing to prosecute the earlier action with due diligence
resulted in the making of the order below that is presently appealed from. Although the
negligence of the respondents in allowing the cause of action to be lost was not contested,
the trial Judge held that the prospects of recovering damages for negligent treatment in the
1986 action were so negligible that nothing of value was lost to the appellant when that
action became statute-barred. The question now is whether that was a correct conclusion.
The principle to be applied in the present circumstances is referred to in the joint
judgment in Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 where a number of
earlier decisions including Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638 were
considered. In a situation like the present it is the chance of recovering damages that has
been lost so that an assessment of the value of the lost opportunity requires "reference to
the degree of probabilities or possibilities" of success: see Sellars supra at 355. That is
because the concern is "with the proof and evaluation of . . . past hypothetical fact
situations as contrasted with proof of historical facts" (ditto). The result was that to recover
damages against her negligent solicitors the appellant was not called on to prove that her action for medical negligence would, on the probabilities, have succeeded. She had to
show no more than that it had a chance of success which was of some value. It was
accepted that the trial of that matter could have taken place in 1987 if reasonable diligence
had been displayed.
The question then is what chance of success in her action the appellant had at that
time. The evidence bearing upon this matter when it was considered below was limited.
The relevant medical records were no longer available. Concrete evidence which the
appellant did have was the fact that when she recovered consciousness in the hospital
ward after her operation she had a condition described as ulnar neuritis and she did not
have it before the operation. This condition and its later consequences have caused the
appellant to be substantially disabled. When on two occasions the operating surgeon Dr
Clark was questioned about the condition and its onset he provided an explanation
indicating his opinion that the cause was that defective procedures had been adopted in
the course of the operation. Dr Clark's statements were brief but this undoubtedly was the
effect of them. The fact that at the time of the hearing below he could no longer recollect
giving the explanation was not of great significance since he was prepared to accept that
he had done so.
It would seem most unlikely that the appellant could have invented an explanation
of the kind that she attributed to Dr Clark. In effect, although not in so many words, Dr Clark
had indicated that in conducting the operation, or some significant part of it, the appellant's
arm, as she lay upon the operating table, had been placed in a position that rendered the
ulnar nerve vulnerable. Other expert evidence below directed attention to the probabilities
of the cause of the appellant's condition as a matter of hypothesis, that is, the respondents
below sought to resolve the question as to the cause of the condition by an appeal to
evidence the essential character of which was circumstantial. That evidence is to be contrasted with the direct evidence provided by Dr Clark's statement. Thus it was amongst
other things suggested below that it could be expected that the operation would not
proceed if the arm had been placed in a vulnerable position and that it was more likely that
the appellant's condition stemmed from events occurring without negligence as the
appellant lay in the ward post-operatively. However, the evidence constituted by Dr Clark's
statement could not be removed from calculation by an appeal to a countervailing theory
which in some aspects seemed to be based upon an assumption of the absence of
negligence in the operating theatre or the relative unlikelihood of it. Also, it was not open
totally to remove the effect of Dr Clark's statement by suggesting that it was ill-considered
and that on mature consideration he would not have advanced it. Dr Clark had advanced
what was essentially the same explanation on two different occasions.
There were two aspects that were involved in Dr Clark's statement. One is that the
participating anaesthetist was negligent in the position in which she placed the appellant's
arm during the operation but the other, is that Dr Clark himself was negligent in allowing the
operation to proceed while the arm continued in that position. The evidence suggested that
although the surgeon in charge might be under some pressure to defer to the anaesthetist's
decisions on some of the procedures adopted within her area of primary responsibility, he
retained the fundamental capacity to control what was done even to the point of being able
to stop the operation if necessary. The effect of Dr Clark's statements cannot be
dismissed by saying that they lacked the precision necessary to determine from them the
exact position of the arm that was being referred to. Thus, there was debate about the
position intended to be referred to as "up" in Dr Clark's statements and alternative
interpretations were much debated in argument before us. The position remained that Dr
Clark, as a medical expert then present, provided his opinion as a result of what he directly
saw. The implication clearly was that the arm was placed in a position which induced
vulnerability to the nerve and caused the resultant disability.
To the extent that Dr Clark was himself negligent, the hospital may have been
vicariously liable. This matter, which ultimately depended upon the terms of whatever was
Dr Clark's engagement with the hospital, was not dealt with in the judgment. Dr Clark may
well have been the agent of the hospital acting within the scope of his authority both in
performing the operation and in subsequently providing the explanation in the course of the
treatment and diagnosis. It seems that this would have made his explanation admissible
against the hospital: see Fraser Henleins Pty Ltd v. Cody (1945) 70 C.L.R. 100 at 113
and 128-129. However, it was not suggested that either Dr Clark or the hospital could not
have satisfied any judgment against them in proceedings brought by the appellant. Dr
Clark's evidence would not have been admissible against the anaesthetist but the
anaesthetist had not been made a party to the suit. There was no more than a hint of an
assertion in the Statement of Claim that the respondent firm of solicitors may have been
negligent not to have joined the anaesthetist. The primary allegation was that the
respondent firm negligently allowed the action as constituted to become statute barred.
It may be observed that the ordinary time limit for commencing proceedings against the
anaesthetist would have expired well before it became necessary to apply for leave to
renew the writ.
As already noted, Dr Clark's statements could be regarded as indicating that he had
breached his duty of care to the appellant in allowing the operation to continue while her
arm remained in a vulnerable position. His statements were made in the course of treating
the appellant and in them he offered his opinion as to the cause of her condition. So far
as they might be taken as asserting negligence against the anaesthetist, a question which
might arise but was not argued was whether it was admissible against the hospital. This
question probably fell to be answered by resorting to the same test as applied in respect of the admission against the hospital of any concession by Dr Clark of his own negligence,
namely whether it was within the course of his authority to provide an explanation in answer
to the appellant's concern about her condition. Perhaps these further questions concerning
the negligence of the anaesthetist were not separately argued by the respondents because
Dr Clark had, at all relevant times, been a party and his individual liability for negligence
would not have been relieved whatever was the correct answer to those questions. It
should, for present purposes, be concluded that the appellant had a cause of action against
Dr Clark which was of a substantial value and one also against the hospital which was of
value. The appeal should thus be allowed.
What other evidence from hospital records, hospital staff, the anaesthetist and Dr
Clark's own undiminished recollection would have been available if the suit based on the
allegation of negligent treatment had been brought promptly was left in the realm of
speculation but whichever side it might have favoured, in estimating the value of the
appellant's lost chance, it introduces an additional element of uncertainty. For that reason
it is a matter which, apart from the other uncertainties that are involved, calls for a discount
in the amount of the appellant's damages assessed in respect of her personal injuries.
However, Dr Clark's statements provided strong support for the appellant's suit and gave
significant value to the chance of success which was lost when the right of action became
barred.
On the hearing of the appeal, although Counsel for the respondent submitted that
in the event of the appellant's succeeding, the matter should be remitted to the trial Judge
for the making of an appropriate order for the costs of the trial below and for him to value
the chance of success that the appellant had lost in her action against Dr Clark and the
Cairns Hospital Board, no submissions were made that the damages assessed for pain
and suffering should be discounted for "overlap" with the pain and suffering experienced by the appellant due to the operation of other factors. The trial Judge had assessed
damages for pain and suffering for the obviously significant consequences of the neuritis
involved in this appeal at $60,000, accepting one medical opinion offered that the condition
was "akin to `an amputation of the arm above the elbow joint and below the deltoid
insertion'". But the Judge had also assessed the damages for pain and suffering for the
neck injury for which the appellant blamed Mrs Parson, at $30,000.
If the matter had stood there, the relationship which the Judge saw as attributable
to the separate causes might have been debatable enough but then having assessed the
total damages in the action against Dr Clark and the Board at $140,768.50 (including the
$60,000 for pain and suffering referred to above) he included this by way of an aside:
"(Some discounting of the pain and suffering component would have been necessary to
allow for its overlap with the pain and suffering associated with the concurrent neck
disability, but I need not embark upon that exercise. Neither need I canvass the question
of the refund due to the Workers' Compensation Board.")
For reasons given by White J, I do not consider that any question of refund to the
Workers' Compensation Board arises for consideration (and no argument to the contrary
was addressed to us) but although somewhat less than completely clearly, I think the Judge
has indicated that his award of $60,000 for pain and suffering includes a component for
which the present respondents cannot be held responsible. Accordingly, difficult though
the matter is, I consider that this Court should regard itself as obliged to do the best it can
in following the path which the Judge, in his reasons, has pointed out. It should be done by
discounting the $60,000 figure so that it will be seen to relate more closely to the pain and
suffering which are the consequences of the actions of Dr Clark and the Board in
November 1993.
Adopting a broad approach, I think the award should be reduced from $60,000 to
$50,000 and a recalculation then made for interest on the pain and suffering component
(the trial Judge's proportion of the total attributable to the past can be retained). This
reduces to $4,062.50 the trial Judge's calculated figure of $4,875 and the adjustment
brings the total of damages assessed down to $129,956. It is appropriate, in considering
the value of the appellant's lost chance, to apply a percentage reduction to the adjusted
damages figure. This Court was invited to undertake an assessment of the value of the lost
chance if we thought the appeal should succeed. Doing the best we can, I think that we
should allow sixty percent of the adjusted amount of $129,956, which is $77,973.60.
Further amounts for legal fees thrown away and for interest should, for the reasons stated
by White J, be added to this sum to give a total for damages of $81,833.25 and for interest
of $82,250.38. I agree with the further orders suggested by White J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2567 of 1996.
Brisbane
Before Macrossan C.J.
Pincus J.A.
White J.
[Harwood v. Gayler & Cleland]
BETWEEN:
ELAINE HARWOOD
(Plaintiff) Appellant
AND:
GAYLER & CLELAND (a firm)
(Respondent) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 1 November 1996
I have had the advantage of reading the reasons of White J. which make it unnecessary for me to explain the issues in detail. My general view is that the primary judge’s conclusion has not been shown to be wrong, that it was essentially a factual conclusion and should not be reversed. It is necessary to make some comment on factual points which appear to be of particular importance.
The plaintiff is undoubtedly disabled and, it appears, in a much worse condition than she was when she first began to receive surgical treatment in 1982. She has had a number of operations and the inference that they have not, overall, done her any good is strong. But the appellant does not rely upon any contention that she has had, considering her medical history as a whole, ill-advised surgical treatment; her case depends upon the position in which her left arm was placed during one of the operations, namely that which was performed on 10 November 1983 by Dr W B Clark. Her case is that her left arm was mistakenly left "up" during that operation and that this caused damage to the ulnar nerve at the elbow, resulting in causalgia in the left hand and left forearm.
Most of the useful information about the history of the appellant’s condition which was before the primary judge is contained in the exhibits, and in particular in Exhibit 7 which is a collection of medical reports; none of these were in the record. The impression created from a reading of them is that the case is one in which it would be very difficult for an expert to be dogmatic as to the precise causes of the appellant’s present various problems. To illustrate this by a single example, Dr Gillett’s report of 27 September 1994 (part of Exhibit 7) under the heading "Current Symptoms" begins:
"The situation at present is continuous from the time of almost of the outset of her injury and her left arm symptoms relate to the time and development of the ulnar neuritis. They have been continuous from that time."
It seems reasonably clear that in truth this is not so and that the development of ulnar neuritis was marked by periods of remission, if not complete cessation. Partly to illustrate this, I shall mention some features of the history as revealed by the medical reports in Exhibit 7, together with the appellant’s comments on her condition which are in Exhibit 8.
On 7 December 1983, Dr Clark reported that the plaintiff had developed acute ulnar neuritis after an anterior cervical fusion at the C5-6 level. He said that there might be another operation "to decompress that left ulnar nerve"; that was performed on 10 January 1984. On 20 January 1984 he reported that the operation "appears to have improved her left arm symptoms and when she reported back today appeared to be in a much happier frame of mind than I have seen her for some months". In commenting upon the 10 January 1984 operation, at p. 16 of Exhibit 8, the plaintiff said that the day after the operation she was sent home from the hospital by Dr Clark, but returned soon after to have the stitches taken out. "I was very panicky when I returned as my arm was still so painful and hypersensitive". It appears that the appellant’s recollection of February 1996, which I have quoted, does not accord with Dr Clark’s contemporaneous note of 20 January 1984.
Dr Clark next saw the appellant a month later, on 9 February 1984 and said that "her left arm symptoms had been greatly improved by her ulnar nerve transposition . . . " see the report of 12 March 1984. In contrast, in the appellant’s statement, Exhibit 8, there is no suggestion of any such improvement. On 9 July 1984 Dr Clark wrote a letter to a psychiatrist, Dr McGovern, only part of which is contained in Exhibit 7. This includes the following:
"Unfortunately, post-operatively, she developed a left ulnar neuritis secondary to compression of the ulnar nerve at the elbow and since these symptoms did not subside spontaneously, anterior transposition of the left ulnar nerve was carried out in January 1984.
She remains extremely disappointed that all these surgical procedures have not improved all of her many symptoms. Her biggest problem seems to be continuing pain in the left forearm, presumably from her ulnar nerve although her tender areas are variable".
It must be inferred that the improvement reported in January and February did not persist. Dr McGovern’s report, dated 27 July 1984, is difficult to summarise, but the opinion arrived at may be taken from the following:
"The patient described one big ache at the back of her head and it feels like somebody is trying to pull it out of her head. She describes burning aches bilaterally in both arms and legs and also headaches. She described being very bitter at doctors but says that what choice did she, a poor person, have."
"Husband allegedly stopped work to look after her and now cannot get a job. Husband is looking for work but has not worked since the end of 1981. Husband generally runs the household and her two children aged 15 and 13 help in the house. There is litigation ensuing . . . "
"She is, admittedly, a bitter angry lady who is angry at the injury and at the doctors. She did not impress as suffering from an endogenous depressive illness or a primary psychiatric illness. I suspect the bonafides of all her symptoms and do not conceive how the injury alleged could possibly cause this incapacity . . .
The patient is well into the legal process, has developed an allegedly invalid way of life, and she is not accessible to any attempt to persuade her to be more mobile or active or hope to persuade her to lose any symptoms. I think she would be too aggressive and rigid for me to interfere successfully."
On 30 June 1986 Dr Clark wrote to a Dr Johns, reporting on a recent visit from the
appellant:
"I was interested to see how much her condition had changed since I last saw her in July 1984. She has been unable to wean herself away from her cervical collar because of pain at the back of the neck, has stopped exercising her left arm joints and as a result, these joints have become stiff and painful. She complains still of an unpleasant paraesthesiae down the extensor aspect of the left forearm which is in a different distribution to where it was felt during 1984. Fortunately, her ulnar neuritis seems to have completely cleared since she does not have any paraesthesiae down the ulnar border of her forearm or in her little finger. She walks with her left leg limp which she says is because the leg won’t work but she is unable to clarify this any further stating that she does not have any pain or weakness to account for the limp." (emphasis added)
I assume that Dr Clark would know the symptoms of ulnar neuritis and see no reason to doubt his assertion that those symptoms seemed to have completely cleared in mid-1986. But on 14 April 1989 a neurologist (Dr Boyce), who had first seen the appellant in June 1986, reported that since the transposition of the left ulnar nerve "she had had severe pain and hypersensitivity in the left arm". He then suggested that the appellant had causalgia of the left arm. In September 1986 she spent a few days in Townsville General Hospital, apparently for treatment of the causalgia. The hospital report says she had a good therapeutic result from chemical treatment and then had surgical treatment which produced an "excellent post op result". The appellant’s claimed recollection of what occurred during this period (from June to September 1986) is of "horrific" pain, that her arm - presumably her left arm, not the right - had "just gotten worse over the months".
Dr Boyce, who had seen the appellant from time to time since 1989, attempted a summary of his view of the case on 27 August 1992, and it included the following:
"When I first saw her I made a diagnosis of a reflex sympathetic dystrophy. This is a condition of unknown aetiology, we do believe however that it is related to nerve compression but can occur with nerve after surgery to nerve (sic)."
"All in all we know that RSD is a bizarre example of damage to the sympathetic
nervous system peripherally."
The appellant’s case of medical negligence depended on ascribing a precise cause to the condition which the neurologist thought had not a known aetiology.
Reasons of Primary Judge
His Honour held that there was no real possibility of a finding of negligence against Dr Clark because, assuming that the appellant’s left arm was "up" during the operation, that was a matter within the anaesthetist’s province. As to the statement which Dr Clark is said to have made about the cause of the left arm trouble, the judge expressed doubt as to whether Dr Clark "advanced that possible explanation with due circumspection". In the context I take this to mean "after proper reflection". His Honour was unprepared to hold that there was a reliable basis in the evidence for holding that having the arm "up" caused the neuritis; he was unprepared to speculate about the matter, being influenced by Dr Gillett’s agreement with the suggestion that "for the operation to proceed with the arm elevated in any way was ‘entirely unlikely’". (The word "up" is in quotation marks in deference to the fact that its meaning, in this context, is not clear from the record.) Counsel for the appellant criticised this finding, but it seems to me reasonably to reflect the content of Dr Gillett’s discussion of the subject. The judge went on to say that the ulnar neuritis was most likely to have occurred when the appellant was recovering after the operation. His Honour thought this to be "one of the ordinary risks suffered by patients undergoing anaesthesia".
In essence, the appellant’s case on appeal is based on a criticism of the judge’s treatment of what was said to be an admission by Dr Clark that the left arm was "up". But there were obstacles in the appellant’s path quite apart from the problem of satisfying a court that the arm being "up" during the operation caused the ulnar neuritis. One general obstacle is that, in my opinion, the court at a trial of the medical negligence case would not necessarily have accepted the evidence about what was said by Dr Clark. For reasons which I have attempted to illustrate, I think there was a risk that the court would not necessarily have treated as Gospel assertions by the appellant about her mis-treatment by various professional people with whom she has had contact, or indeed treat her as a reliable witness generally. It was contended that the Court was obliged to accept that Dr Clark made the statements about the arm being "up", which were attributed to him by the appellant and her husband; he did not deny having done so. Dr Clark said, and the judge apparently accepted, that he simply did not recall the discussion. (As to the supposed obligation to accept the uncontradicted evidence of what Dr Clark said, I refer to and agree with the view of Spender J. in Re Hope; Ex parte Carter (1985) 59 A.L.R. 609 at 611). So far as one can tell from the record Dr Clark seems to have been anxious to be fair and expressed an opinion, without claiming the slightest recollection of the matter, to the effect that it would be hard for the appellant to "make up a story like that . . . so someone present at the theatre must have told her that the arm was above her head and presumably that was myself".
Strictly speaking, Dr Clark’s opinion about the point just referred to was inadmissible; in any event it had, as it seems to me, very little weight, for the Court was in as good a position as Dr Clark to assess the likelihood that what the appellant said about the matter was true. Dr Clark went on to give elaborate rationalisations as to the reason why he had "perhaps, without thinking, clearly jumped to" the conclusion about the state of the arm. It does not appear to me, with respect, that this evidence is of the slightest use. If it was accepted (and the primary judge appeared to accept) that Dr Clark had absolutely no recollection of the matter, his theories as to what he might or might not have said, and why, were irrelevant. What was of some use, from the point of view of the respondent, was that the considerable quantity of material before the court, recording the appellant’s complaints made over a period of years, contained no reference to the case presently advanced until 1993, 10 years after the event: see the report of Dr Gavin Douglas, dated 24 August 1993. This may be contrasted with Dr Mellick’s most elaborate report, dated 17 July 1992, the purpose of which apparently was to determine whether and if so in what way surgical procedures contributed to the appellant’s condition. That report makes no reference to the "arm up" theory of causation, and the same is true of Dr McGovern’s report, made in July 1984. Although the latter contains a number of references to the appellant’s complaints about the way in which she has been treated by doctors, it does not mention the (then recent) "arm up" incident now relied on.
Conclusions
The primary judge decided the case on the basis that an action by the appellant for medical negligence would necessarily have been decided on what was described in argument as Dr Clark’s "admission". Having regard to the likely difficulty of recalling, accurately enough to be of use, a brief and unrecorded conversation or conversations which occurred 12 years before the trial, it appears to me that there must have been a substantial risk that a Court would have been unprepared to find that Dr Clark made the statements attributed to him. When one adds to that the evidence of Dr Gillett (called by the appellant below) to the effect that it was unlikely that any such event would occur, the prospect of obtaining a finding that the arm was "up" must in my respectful opinion be regarded as a doubtful one. Then the appellant had to show that the arm being "up" caused the catastrophic consequences of which she complains. For the reason mentioned in oral evidence, namely that the operation was quite brief, this seems unlikely, as a matter of commonsense. A more probable cause is a period of immobility after the operation; the assumption that if Dr Clark at one stage attributed ulnar nerve trouble to the arm being "up", in a conversation with the appellant, that would necessarily be so, appears to me unjustified. Then, the solid evidence that the ulnar nerve trouble of which the appellant had complained appeared to come to an end by 1986 creates a difficulty in connecting the causalgia later diagnosed with the "arm up" episode.
I have come to the conclusion that, particularly having regard to the judge’s advantage in having seen and heard the witnesses, this Court would not be justified in differing from his Honour’s ultimate conclusion, which was essentially a factual one. Although it seems plain that psychogenic elements of the appellant’s condition have intruded, it would be difficult to feel unsympathetic towards the appellant, who seems to have suffered grievously; nevertheless, it is my opinion that the appeal should be dismissed.
I would dismiss the appeal with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 2567 of 1996
Brisbane
| Before | Macrossan CJ Pincus JA White J |
[Harwood v. Gayler & Cleland (a firm)]
BETWEEN:
ELAINE HARWOOD
(Appellant) Plaintiff
AND:
GAYLER & CLELAND (a firm)
(Respondent) Defendant
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 01/11/1996
The appellant sued the respondent firm of solicitors for damages for negligence.
The learned trial judge found that the respondent had been negligent but, apart from a sum
to reflect an earlier costs order made against the appellant, he assessed her chance of
recovering damages in the lost actions as merely speculative and awarded no damages.
The appellant appeals from part of that decision.
The respondent had been retained by the appellant in June 1984 to act on her behalf and to commence two proceedings one against Marie Stremouchiw (Frances Marie Parsons at trial) for damages for an alleged assault and the other against Dr William Clark
an orthopaedic specialist and the Cairns Base Hospital for damages for negligent medical
treatment. The alleged assault occurred on or about 6 November 1981 and the alleged
negligent treatment occurred on 10 November 1983. The respondent caused a writ to be
issued on behalf of the appellant against Marie Stremouchiw on 9 August 1984 and
against Dr Clark and the Cairns Base Hospital on 5 November 1986. On 6 February 1990
an application for leave to renew the writ against Dr Clark and the Cairns Base Hospital
was made by the respondent on behalf of the appellant as the writ had not then been
served. That application was dismissed on 22 February 1990. A week later an application
for leave to proceed against Marie Stremouchiw was also dismissed. Any action against
any of the defendants was then effectively at an end because the relative limitation periods
had expired.
On 17 March 1992 the writ in the present action was issued alleging, inter alia, a
failure on the part of the respondent firm to prosecute the actions diligently and to make
appropriate investigations in a timely manner. The trial was heard in Townsville in February
this year and the applicant obtained a judgment only in respect of the costs ordered to be
paid on the dismissal of the leave to proceed application in the sum of $3,859.65 and her
costs associated with proving that part of her claim. Costs were otherwise ordered in
favour of the respondent.
The issue of the respondent's negligence was virtually undisputed at trial, the
respondent firm defending the action on other grounds. In the case of the action against
Mrs Parsons the respondent argued successfully that had the action proceeded with all due
expedition the appellant would have been unlikely to succeed on liability and even if she did
she would not have been able to recover damages. The appellant does not appeal from that finding but from the further finding that the appellant's chances of succeeding against
Dr Clark and/or the Cairns Base Hospital in the second action were so remote as to be
speculative and thus attracted no award of damages.
The appellant had alleged that Mrs Parsons assaulted her at her place of work by
uninvitedly placing her fingers on the appellant's shoulders and thumbs on her spine as if
to massage her which resulted in a feeling of intense pain and thereby rendered a
previously symptomless degenerative spine symptomatic. The learned trial judge did not
accept that the contact was without consent nor that it was causative of the applicant's
symptoms. Nonetheless he accepted that from whatever cause the appellant experienced
ongoing extremely painful symptoms such that in September 1982, conservative treatment
having failed, she underwent a spinal fusion operation at the C5-6 level. The appellant's
neck pain persisted and a second fusion operation was carried out from C5-7 in March
1983 by Dr Clark. Continuing symptoms of severe pain caused Dr Clark to carry out a third
fusion operation on 10 November 1983 at C4-5. The appellant was by then a public
patient. It was the appellant's case that during that operative procedure she developed an
ulnar neuritis due to the negligence of Dr Clark and the anaesthetist who was employed by
the Cairns Base Hospital. There was no dispute that by the time the appellant had fully
recovered consciousness from the effects of the anaesthetic she was experiencing
symptoms of ulnar neuritis which were not present previously.
Dr Clark operated on the appellant on 10 January 1984 to correct the ulnar neuritis.
The learned trial judge found that the appellant thereafter developed reflex sympathetic
dystrophy. He accepted that as a consequence of those conditions the appellant suffered
and continued to suffer a substantial overall disability with significant pain such as to
preclude her carrying out domestic tasks including tasks associated with her own personal care. He found that the neck condition precluded her from engaging in remunerative
employment. He assessed the damages which she would have been likely to receive at
a trial had she been successful on the question of liability in the sum of $140,768.50. There
is no appeal from that assessment but it is necessary to make some mention of the
assessment for pain and suffering in due course.
The major ground of appeal is that the learned trial judge erred in not acting upon
the uncontested evidence of the appellant which, it was submitted, afforded clear support
for a finding of negligence against the Hospital as vicariously liable for the anaesthetist.
It is necessary to examine that evidence before turning to some more general
considerations.
In his evidence at the trial Dr Clark said that ulnar neuritis is caused by pressure on
the ulnar nerve where it lies beneath the skin on the inner aspect of the elbow and any
position of the limb which puts pressure on that area for a sufficient length of time could
produce an ulnar neuritis. He thought the duration of the operation on 10 November 1983
too short to allow of its development. Dr Gillett, an orthopaedic specialist, advanced the
opinion that depending on the amount of force applied to the nerve, ulnar neuritis could
develop in seconds. He distinguished between a chronic irritation of the nerve which
develops over time and an acute irritation related to post-surgical compression. Dr Clark
conceded that the appellant had a well-developed musculature in her arms so that pressure
applied to the nerve for a lesser period of time would allow the neuritis to develop. The
appellant had awoken on 11 November 1983 after the third fusion with little or no feeling
in her left arm down into her hand. Dr Clark said that the condition, whilst not common, was
seen regularly following surgery and that about two or three patients per thousand would
develop ulnar neuritis under anaesthetic. Dr Gillett stressed that the positioning of the limbs and other parts of a patient's body vulnerable to neuritis was a high priority before
commencing an operative procedure.
As the trial proceeded the focus became directed more to the position of the
anaesthetist and the Hospital Board's vicarious liability for any negligence by her than on
the conduct of Dr Clark as surgeon. The Hospital had culled its records in respect of the
operative procedure on 10 November 1983 in 1990, having had no notice of the action.
By the time the present action was being prepared there was no available record as to the
identity of the anaesthetist.
By the time of trial Dr Clark had no memory of the operation on 10 November nor
of subsequent events concerning the appellant. The strongest evidence of negligence was
a statement made by Dr Clark to the appellant when he saw her on the morning following
the operation when she complained of her left arm deficits and pain. The appellant's
evidence of this conversation was:
"Well, what he had said is that the anaesthetist had left my arm up during the operation and it was pressure on the nerves and he said, don't worry about it, if it doesn't come good he would operate to release the pressure ..."
The arm did not "come good" and Dr Clark operated to repair the ulnar nerve on 10
January 1984. Ten days later the appellant went to Dr Clark's surgery to have the stitches
removed. The appellant's evidence was that her husband, who was present, asked Dr
Clark how it had happened and Dr Clark had said "that the anaesthetist had left my arm up
but that he'd told her to put it down". The appellant said that she told Dr Clark that she
would like five minutes alone with the anaesthetist to which Dr Clark had replied that the
anaesthetist had been transferred to a small country hospital where she could not do any
more harm. The appellant's husband gave evidence that Dr Clark had said that his wife's
arm "had been left up during the operation and the nerves had been damaged by the anaesthetist", and had later mentioned the anaesthetist's transfer. Her husband agreed
in cross-examination that Dr Clark could have added that he told the anaesthetist to put the
arm down but she did not. It was not put to the appellant in cross-examination that Dr Clark
had not made the statement in the morning following the operation in which he assigned
a cause for her condition. Neither was she cross-examined about the statement to similar
effect made whilst the stitches were being removed. It was put to her husband in cross-
examination that Dr Clark had not said that the arm was left in the air, but that was not
pursued with vigour.
Dr Clark had no recollection of whether he told the appellant of the anaesthetist's
responsibility for her ulnar neuritis. He frankly said that "It's such a specific statement that
I would have to believe her". He went on to explain.
"... It would be extremely difficult for a patient to make up a story like that without being fully awake through the anaesthetic and knowing by herself where the arm was, so someone present at the theatre must have told her that the arm was above her head and presumably that was myself."
Dr Clark might have been thought to be giving some endorsement to his statement when
he said that he personally positioned the patient very carefully and would know if the arm
was up. Although having accepted that he had made the statement to the appellant the
morning following the operation, by trial Dr Clark had formed the view that what he had said
was an unlikely explanation for the cause of the ulnar neuritis. In his view, whilst it was
possible that it had developed as a consequence of the anaesthetist putting the appellant's
arm in the wrong position, he thought it unlikely because the duration of the operative
procedure was too short or, alternatively, because he would have raised the matter with the
anaesthetist had the arm been wrongly placed. If the latter had occurred and the
anaesthetist had explained that it was in the best interests of the patient to have access to an intravenous line he said that he would have accepted that advice. If the anaesthetist
merely insisted, for no reason, that the arm remain placed as the surgeon considered,
inappropriately, Dr Clark said that the surgeon would usually "climb down". Dr Clark
pointed out that in this case he was operating on the appellant anteriorly, that is, she was
on her back, and he would have been operating from her right-hand side. The assistant
surgeon would then stand on the left of the patient. He said that the appellant's right arm
would have been down by her side during the operation and access to her neck, where
entry was effected, would not have been impaired for him to such degree as was that of the
assistant surgeon. Dr Clark concluded "in these circumstances it was perhaps easier to
accept the uncooperative nature of the anaesthetist, who was more inconveniencing my
assistant rather than myself". The appellant accepted that Dr Clark was hypothesising
here, having no memory of the occasion.
Dr Clark was asked in cross-examination why he gave the explanation for the onset
of ulnar neuritis to the appellant on the morning following the operation if, when giving
evidence in the trial, he now thought such an explanation unlikely. He answered.
"Yes, with every patient I deal with I usually try to be 100 percent honest as I can be. And perhaps with the shock of hearing of her symptoms on that morning, I just perhaps, without thinking, clearly jumped to the conclusion that because of the position of the arm during the operation, I felt obliged to immediately to jump to that conclusion that that was the reason why the ulnar neuritis had developed and felt obliged to explain it to her. ... But just on the spur of the moment, just to be honest with Mrs Harwood and to give her an explanation for everything, as I have done all the way through, on the spur of the moment that seemed - perhaps it was some leftover exasperation of the position in the operating theatre from the day before that I felt I had to convey to her. ... If the arm had been in an unusual position during surgery, there would've been a certain amount of exasperation in theatre on my behalf and my assistant's behalf because it was a slightly awkward operating position."
Of this body of evidence the learned trial judge said (R 218)
"Before going further, I record some intrigue that Dr Clark made the statement. On one view, that was his concession, when challenged, as to the only conceivable reason he could advance, when "put on the spot", as to why things might have gone wrong. The other view, advanced by Mr Pope, is that it reflected the doctor's anxiety in the heat of the moment, when challenged by the plaintiff, to search about for some unusual feature which could possibly have explained the events, a view to which the doctor may not have held on more mature reflection. There is, to my mind, real reason for doubting that the doctor advanced that possible explanation with due circumspection."
His Honour made some reference to Dr Gillett's evidence to which I shall return and
concluded
"... overall that the prospect of establishing a case of negligence against the anaesthetist, and thereby the Hospitals Board depending as it did on that perhaps insufficiently considered statement by Dr Clark, remained purely speculative."
This conclusion and the reasoning by which it was reached cannot, with respect, be correct.
Dr Clark was an expert surgeon. He agreed that he told the appellant that the anaesthetist
had placed her arm in an inappropriate position during the operation, that he had
requested that the arm be moved and the anaesthetist had failed to do so. By his
statement he had indicated that the placing of the appellant's arm in that way caused
pressure on the ulnar nerve and caused the appellant's subsequent condition. It is not
entirely clear what the learned trial judge meant by describing Dr Clark's explanation as
having been advanced without "due circumspection". If he meant that it was given without
due consideration for his legal position it can have no effect on the evidentiary value of the
statement. If he meant without due reflection, Dr Clark did not say at the trial that he did not
believe that what he said to the appellant was possible. The learned trial judge appears
to have adopted the submission made by counsel for the respondent that Dr Clark had
made his statement to the appellant in the "heat of the moment". This conclusion ignores
the evidence that on about 20 January 1984, some ten weeks after the operation, when he was removing the stitches following the corrective surgery, Dr Clark continued to give the
same reason for the onset of her ulnar neuritis to the appellant and her husband as he had
given the appellant on the morning following the operation. Mr Chesterman for the
respondent submitted that no reliance was placed upon this later conversation by the
appellant because it was not put in cross-examination to Dr Clark and neither did it form
any part of the submissions at trial made on behalf of the appellant. As Mr Keane for the
appellant pointed out, Dr Clark's statement to the appellant on the morning following the
operation had not been contested in any way and there was thus no reason to put to him
the further confirmatory statement made on the second occasion or to draw attention to it
in submissions. The evidentiary value of the second occasion only became apparent when
the learned trial judge in his reasons for judgment declined to act on Dr Clark's statement
by describing it as something said "in the heat of the moment".
There was much discussion both in the trial and on appeal as to what Dr Clark
meant when he said to the appellant that her arm was "up". The record suffers from the
disadvantage that demonstrations by Dr Gillett, in particular, were not described into the
record. The learned trial judge said at R 218
"... there is no even arguably reliable basis in the evidence for the conclusion that having the arm "up" caused the neuritis. There is no evidence at all as to how the arm was elevated, at what height, or at what angle, or with what support. I appreciate that the plaintiff is hampered by the absence of hospital records identifying the anaesthetist, among other things. But I am concerned that I am now left, through the sparsity of evidence, in the realm of pure speculation. And I was influenced by Dr Gillett's agreement with the suggestion put in cross-examination that for the operation to proceed with the arm elevated in any way was "entirely unlikely".
The learned trial judge's first proposition that there was no basis in the evidence for the
conclusion that having the arm "up" caused the neuritis overlooks the admission by Dr
Clark himself that it was having the arm "up" which caused the pressure on the nerve. It was submitted by Mr Keane that the absence of detail as to how the arm was elevated, at
what height or at what angle or with what support was entirely irrelevant because what was
significant was that an expert, who was present, had said that the arm was in an incorrect
position and as a result pressure was placed on the ulnar nerve. Mr Keane submitted that
the learned trial judge in any event mistook Dr Gillett's evidence on this point. Dr Gillett
asked Mr Pope in cross-examination if there was any evidence as to the position that the
arm was said to be in and he was told that it was "up". Mr Pope supplied the word
"elevated". Dr Gillett was told by the learned trial judge that the surgeon was on the
appellant's right side so that his access to the relevant area of the neck was not impeded
but that the arm if "up" would impede the assistant on the other side of the table. Dr Gillett
responded that he could not perceive how the arm would be up "in that elevated position".
He said that he could not see how the operation could be draped in a sterile fashion and
added "up may mean this position ... rather than down". Dr Gillett said that any anxiety on
the part of the anaesthetist to have good venous access could be addressed by venous
extensions and that good practice involved the arm being by the patient's side away from
where the surgeons were working. He added that he could not foresee that
"an arm would be sticking up in the arm [sic: air] for that reason. I mean, I could accept that perhaps in a very - in a junior situation that might be the case. But this is an elective operation and that would suggest the person giving the anaesthetic - in the practice, as I have observed over my training, that sort of situation would not occur."
Dr Gillett was clearly troubled by Dr Clark's statement that that in fact had occurred and he
added
"The statement "up", in practical terms in these sorts of operations probably represents the position of the arms in this plane ..., not that plane ... because that would be a more practical thing for an anaesthetist to do is to have the arm out to the side so that they can obtain access to the hand. As I have said, in my experience the arm has been put by the side away from the assistant. ... Now, if it was out to the side it would interfere with the assistant and allow draping at the same time. An arm sticking up would not allow practical draping in this procedure. I just can't perceive that a surgeon would even operate, in the middle of his field, with a hand sticking out with a drip attached."
From that evidence it seems that Dr Gillett accepted that if the anaesthetist was very junior
the arm could be elevated in some way or that it could be extended out to the side of the
patient. In any event, notwithstanding Dr Gillett's difficulty with the notion that the arm was
"up", apparently in almost any plane, the Court had the uncontradicted evidence of Dr Clark
that the arm was up during the operation and the arm being up had caused pressure on the
ulnar nerve.
The learned trial judge concluded (R218)
"... overall ... the prospect of establishing a case of negligence against the anaesthetist, and thereby the Hospitals Board, depending as it did on that perhaps insufficiently considered statement by Dr Clark, remain purely speculative. Plainly an ulnar neuritis did develop. But that is most likely to have occurred when the plaintiff was in the ward recovering after the operation. The frequency of the development of such a condition in an anaesthetised patient is very small - two or three in a thousand (p. 119), and in the absence of any evidence suggesting deficiency in the hospital system of protection for patients following operations, one must be left to regard this as an example of one of the ordinary risks suffered by patients undergoing anaesthesia.
I therefore conclude that the prospect of establishing negligence against the
Hospitals Board was similarly a matter for mere speculation."
In actions for damages for professional negligence against legal advisers the court's
function is to evaluate a plaintiff's lost chance of recovering damages had the trial been
properly prepared and heard timeously. In Kitchen v. Royal Air Force Association [1958]
1 WLR 563 Lord Evershed MR set out the approach to be taken in assessing damages
once negligence has been established against the professional at pp. 574-5
"If, in this kind of action, it is plain that an action could have been brought, and if it had been brought that it must have succeeded, of course the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that the answer is that she can get nothing save nominal damages for the solicitors' negligence. ...
But the present case falls into neither one nor the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try "the action within the action" as Mr O'Connor asks. It may be that for one reason or another the action for negligence is not brought till, say, 20 years after the event and in the process of time the material witnesses or many of them have died or become quite out of reach for the purpose of being called to give evidence.
In my judgment, what the court has to do (assuming that the plaintiff has established negligence)in a such a case as the present, is to determine what the plaintiff has by that negligence lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case, it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."
In Kitchen's case it was agreed that the maximum amount which the plaintiff would have
recovered in the lost action if completely successful was £3,000. Just how the electrical
accident which led to the plaintiff's husband's death came about was described by both
Lords Evershed and Parker as a "mystery". The plaintiff gave some limited evidence of
negligence and the trial judge found that she was a candid and truthful witness. Park LJ
observed at p. 576 that he would have had difficulty in coming to a conclusion that the
plaintiff would have succeeded
"But, as I understand it, that is not our task. If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remained to be surmounted. In other words, unless the court is satisfied that her claim was bound to fail, something more than nominal damages fall to be awarded."
The trial judge had assessed the plaintiff as having a two-thirds chance of succeeding in
her action and awarded damages of £2,000 which the Court of Appeal considered generous but did not disturb. Sellars LJ suggested that it was a case where a compromise
may have been reached which should be taken into account when assessing such a
chance.
In Tutunkoff v. Thiele [1975] 11 S.A.S.R. 148 Bray CJ referred to two Scottish cases
with approval, Robertson v. Bannigan [1965] SLT 66 and Yeoman's Executrix v. Ferries
[1967] SLT 332 which went further than the Court of Appeal in taking account of possible
factors which may have influenced the outcome of the lost action. In Robertson v. Bannigan
the question for appeal was whether an action against a solicitor for negligence in failing
to commence an action against the plaintiff's employers before it became statute barred
should be tried by a jury. Lord Strachan said at p. 68
"Counsel for the pursuer argued that averment could be proved on a balance of probabilities and that a jury would be the most suitable tribunal to decide that question and to determine what amounts of reparation the pursuer would have received from his employers. It was said that all a jury would [ ] require [sic] to do would be to say what they would have done if they had been in the position of a jury trying the action against the employers. I agree that that is precisely what a jury in the present case would be likely to do and, in my opinion, that would not be the correct approach. There is a different defender in the present action. The pursuer's employers do not appear to have any interest in the case now and it may well be that the evidence to be led in this action will not be the same which would have been led by the employers in an action against them. A judge would be able to make such allowance as may turn out to be necessary in that connection, whereas a jury would be inclined simply to dispose of the case on the evidence led before them. Even if no difficulty arises on that matter it is obvious that a jury's verdict in this action may be quite different from the verdict which a jury would have reached in an action against the employers. In any event, I am of opinion that the valuation of the pursuer's prospects of success against his employers is likely to be a more difficult task than the Lord Ordinary has thought, and to involve questions which a jury is unsuited to decide. For instance, counsel for the pursuer assume that an action against the employers would have gone to trial before a jury. That is an assumption which does not appear to me to be necessarily involved in the pursuer's averment. It is a matter of judicial knowledge that it is very usual for such actions of reparation to be settled before trial, and it may well be that the pursuer's claim before it became time-barred had some real value on that account even although a jury in this action might decide against the pursuer on the evidence relating to the accident."
Lord Wheatly considered the proper approach to the assessment of the value of the
chance at p. 72
"Taking into account all kinds of considerations such as the possibility of a compromise settlement, the possible difference in the evidence which the employers might have led as compared with the evidence which the present offender might be in a position to lead and what the tribunal of fact in this case thought that the tribunal of fact would have done in the original action on the evidence adduced before it. All this involves difficult and delicate questions which would be more satisfactorily determined by a judge. ...
The question whether the hypothetical action would or would not have succeeded must, in my opinion, depends on the evidence which would probably have been led in that action. Accordingly, when evidence comes to be led in this action there must always be the underlying question whether that evidence could, and probably would, have been led in the hypothetical action."
In Yeoman's Executrix v. Ferries, supra, Lord Avonside thought that the plaintiff
would have failed in the lost action had he himself been trying it but that had it been tried
before a jury then there was a chance that a jury may have decided favourably. He
considered that had the case been conducted competently those advising the plaintiff
would have favoured a settlement if some reasonable offer were made. It was something
of real and definable value that he might have recovered something in settlement although
he may not have succeeded had the trial gone on. As to how far the court could go in
speculating about what might have happened in the conduct of the lost action his Lordship
said at p. 336
"I do not accede to the argument pressed on me that all those are inadmissible speculations incapable of proof in a legal sense. I consider that a judge in a case of this kind, having heard the evidence available to him, is entitled to draw on his experience in a field in which probabilities are open to decision and practice within knowledge."
Bray CJ in Tutunkoff v. Thiele, supra, at p. 152 observed after assessing the plaintiff's chances of complete success in the lost action at 60 per cent
"This may be rough justice but the valuation of chances cannot be precise. In so doing I have taken into account the degree of contributory negligence I am prepared to find on the present evidence, the greater degree of contributory negligence which might have been proved in the lost action, and the remote but not negligible chance that in that action it might have been possible to exculpate the employer altogether."
In Malec v. JC Hutton (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ
explained the approach to the assessment of possibilities at p. 643
"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... but unless the chance is so low as to be regarded as speculative - say less than 1 percent - or so high as to be practically certain - say over 99 percent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 percent probability of occurring, but to ignore altogether a prediction which has a 49 percent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
See also Sellars v. Adelaide Petroleum NL (1992-1994) 179 CLR 332 per Mason CJ,
Dawson, Toohey and Gaudron JJ at p. 350. Mr Chesterman submitted that that approach
to the assessment of possibilities or hypothetical events was only to be applied after
causation had been established and that causation was ordinarily governed by the general
civil standard of proof on the balance of probabilities. That approach was true for the
circumstances which prevailed both in Malec and in Sellars in which the court was called
upon to make actual findings on the issue of causation. In professional negligence cases
the task of the trial court is to evaluate the loss of the chance to bring the action timeously
and prepared competently. An aspect of that process may include the question of
causation. The case of Daniels v. Burfield (unreported decision of the Full Court of the
Supreme Court of South Australia No SCGRG 2772 of 1987, S3779) relied on by the respondent, although concerned with issues of negligent medical treatment in the course
of an operative procedure, did not concern the assessment of a lost chance. It was an
action against the surgeon. The issues raised on that appeal involving the application of
the principles enunciated in Abalos v. Australian Postal Commission (1988) 171 CLR 167
concerning the trial judge's evaluation of a witness are not of concern in cases such as the
present.
The learned trial judge seems to have approached the assessment of the
appellant's chances of success as requiring him to hear "a trial within a trial", but the state
of the evidence rendered impossible such an approach, Kitchen v. Royal Air Force
Association, supra, p. 574. It was accepted that had the appellant's instructions been
attended to competently the trial against Dr Clark and the Cairns Base Hospital would have
come on for hearing in 1987. The Hospital records would have been available identifying
the anaesthetist. The anaesthetist may have been made a party. In any event, her
recollection may or may not have assisted the appellant's case. Dr Clark would more likely
than not have had a good recollection of the operation which occurred on 10 November
1983. He wrote reports referring to the appellant's ulnar neuritis during 1984, 1985 and
1986 and the timely service of the writ on him would probably have kept his recollection
alive. From the evidence of both Dr Clark and Dr Gillett it can be inferred that very likely
the appellant's ulnar neuritis would not have occurred without negligence on someone's
part. The appellant did not have the condition when the operation was commenced on 10
November and by the next morning, when she regained consciousness, she was
experiencing symptoms. The trauma to the ulnar nerve either occurred in the operating
theatre, as Dr Clark said it did, or when the appellant was back in the ward. Dr Clark
suggested that it was unlikely to have occurred in the recovery room as the appellant was subject to regular movements of her limb. The very thing that happened - trauma to the
ulnar nerve - was something of which doctors and hospital staff were well aware and
against which careful precautions were usually taken according to both Dr Clark and Dr
Gillett.
Although the trial below moved away from imputing liability to Dr Clark, had other
witnesses to what occurred in the operating theatre been available to give evidence,
including the theatre sisters and assistant surgeon as well as the anaesthetist and Dr Clark
himself, the conclusion might have been drawn that Dr Clark ought to have stopped the
operation from proceeding if, for no good medical reason, the appellant's arm was to
remain in an inappropriate position. Dr Gillett's evidence suggested that there would
normally be no good anaesthetic reason which would override the risk to the patient's ulnar
nerve. Dr Clark said that the surgeon could have the patient awakened and not perform
the operation if relations between himself and the anaesthetist were unsatisfactory as far
as the patient's safety was concerned.
If Dr Clark's statements to the appellant were the only evidence of negligence
available had the trial occurred in 1987, their admissibility against the Hospital would
presumably have been because Dr Clark was acting as agent of the Hospital when he saw
and examined the appellant following the operation and when he removed her stitches.
She was then a public patient. There was no objection as to the admissibility of his
statements against the Hospital taken below. Those statements may not have been
admissible against the anaesthetist had she been a party to the action. However it is likely
that they would not have constituted the only evidence of negligence in 1987 and it is
probable that Dr Clark would have recalled what occurred in the operating theatre, that
there would have been other witnesses, and the question of the admissibility of those
statements may not have arisen or would not have been vital to the appellant's case.
I am of the view that the appellant's prospects of success in an action against Dr
Clark and the Cairns Base Hospital were better than "pure speculation". The learned trial
judge assessed damages in respect of both actions and regarded the left arm disability
and subsequent reflex sympathetic dystrophy as very serious. He referred to Dr Gillett's
report of 27 September 1994 in which he had said that "the best way to assess it [the ulnar
neuritis] was akin to 'an amputation of the arm above the elbow joint and below the deltoid
insertion'". The learned trial judge accepted that pain and suffering should be assessed
at approximately $60,000 and of that one-half would have been apportioned to the past
attracting interest at 5% for the 3¼ years to 1987 amounting to $4,875. He concluded that
on the medical evidence the appellant's neck injury had destroyed her earning capacity (no
submission is made against this conclusion) and accordingly made no allowance for
economic loss in the claim against Dr Clark and the Cairns Hospitals Board. Special
damages of $3,940, past medication expenses of $1,706.25 and future medication
expenses of $7,103.25 were agreed. Past voluntary care of the appellant by her husband
was assessed at $9,905 attracting no interest and future care was assessed at $53,239.
None of those figures has been contested on appeal. The learned trial judge assessed
the damages which the appellant would have recovered had she been completely
successful at $140,768.50. At p. 11 (R. 216) of his reasons he added in parenthesis that
some discounting of the pain and suffering component would have been necessary to allow
for its overlap with the pain and suffering associated with the concurrent neck disability.
No submissions were made on appeal as to what if any reduction would have been made.
The learned trial judge said that he did not need to embark upon that exercise nor canvass
the question of the refund due to the Workers' Compensation Board. He assessed the appellant's damages for pain and suffering in respect of her action against Mrs Parsons
at $30,000. It seems clear from the appellant's statement and, to a much more limited
extent, from her oral evidence and from the extensive medical reports that the pain in her
left arm and parts of her body associated with the reflex sympathetic dystrophy was the
dominant pain after November 1983. However she does mention from time to time that her
back pain was "playing up" and had been giving her "spasms". There was no impression
from that evidence that the pain from the neck overshadowed or incorporated the pain
associated with the ulnar neuritis or reflex sympathetic dystrophy but the learned trial
judge's indication that there was some element of overlap involved in his assessment
makes it necessary to deal with this point. No submissions were directed to this aspect
of the damages but in my view the court should attempt to calculate that overlap and to
reduce the appellant's damages for pain and suffering accordingly. Taking a broad
approach I consider that a reduction of $10,000 would reflect that overlap. His Honour's
apportionment of one-half to the past should be retained. Interest should be allowed on
$25,000 at the rate and period allowed by the learned trial judge, namely, 5% for 3¾ years.
That amounts to $4,062.50.
The learned trial judge indicated that there was no need to canvass the question of
the refund due to the Workers' Compensation Board in the part of his reasons for judgment
dealing with the second action. The alleged assault the subject of the first action had
occurred in the course of the appellant's employment for which she would appear to have
received Workers' Compensation payments. Those payments could not have been
attributed to injuries sustained by virtue of the conduct complained of in the second action
against Dr Clark and the Hospital. It would have been necessary to make a deduction in
respect of the first action had the appellant been successful but not the second.
Mr Keane submitted that if it were accepted that the appellant would, as a matter
of practical certainty, have succeeded in her action against the Cairns Hospitals Board
then she should recover judgment in the sum of $140,768.50. As I understood Mr
Chesterman, he submitted that it would be more appropriate to have the assessment of the
chance returned to the learned trial judge were the appeal successful. On the question of
costs he submitted that the matter should be remitted since, in any event, the appellant was
unsuccessful in her claim for damages for assault against Mrs Parsons. This court may
undertake an assessment of the chance.
I have concluded that the appellant had good prospects of success in her action
against Dr Clark and/or the Cairns Base Hospital and there is no doubt that either would
have been able to meet any judgment sum awarded to her. In assessing the value of the
lost chance some account must be taken of the prospect that evidence may have been
given at the lost trial that circumstances arose in the course of the operation which required
the appellant's ulnar nerve to be put at risk and which would negate negligence on any
defendant's part. Recognition should also be given to the possibility that the appellant
would have been advised to settle for a lesser sum prior to trial and accepted that advice.
In order to take account of those possibilities and other adverse contingencies I estimate
the appellant's chances of complete success in the action at sixty per cent and would
award damages equivalent to sixty per cent of the amount of her assessed damages
reduced in respect of the amount for pain and suffering and the interest thereon as
mentioned above. I would accordingly assess the value of the appellant's lost chance at
$77,973.60. The parties agreed that interest would be payable on any damages assessed
at 12% between 1987 and 1994 and 10% between 1994 and 1996. The two sums are
$65,497.80 and $15,594.70 respectively amounting to $81,092.50.
When the learned trial judge awarded the plaintiff as damages the legal fees
ordered to be paid on the leave to proceed application being $3,859.65 he failed to award
her interest. There was no disagreement with the submission that she should recover in
any event interest on that amount at the agreed rates which amounts to $1,157.88. The
total amount of damages to which the appellant is entitled is $81,833.25 together with
interest at the agreed rates in the sum of $82,250.38.
There is no reason why this Court cannot deal with the costs of the trial below. The
parties appeared before the learned trial judge on four days. On day three the court
adjourned at 12.00 and on day four some unspecified period of the morning was occupied
with addresses. Of the ten witnesses called, the appellant and her husband, Mr Lang and
Mr Wright solicitors and Dr Douglas and Dr Gillett gave evidence which was referable to
both actions. The evidence of Mrs Cushnan and Mrs Parsons was referable to the first
action alone. There was some overlap with Dr Clark's evidence into the first action in
respect of the early operative procedures which he carried out for spinal fusion but it mostly
concerned the second action. Dr Johns' evidence concerned his treatment of and
consultations with the appellant largely in respect of the second action injuries. Many
medico-legal reports were tendered, most by consent, and more concerned the medical
consequences of the second action than the first.
The learned trial judge ordered in a supplementary judgment that having failed on
the major issues at trial the appellant should pay the costs of the defendant of and
incidental to the action to be taxed apart from the costs associated with proof of loss of the
legal costs which the respondent was ordered to pay. Since the appellant was successful
in establishing liability against the respondent for professional negligence I infer that that
costs order included the costs of proving negligence. Having succeeded on this appeal in respect of one of the lost actions which occupied approximately one-half of the time of
the court below and more likely than not occupied approximately one-half of the preparation
for trial costs, the order as to costs below should be varied to the extent that the respondent
pay one-half of the appellant's costs of the trial below to be taxed unless agreed. The order
of the learned trial judge concerning the costs of proving liability against the respondent
should stand. The appellant has been successful in her appeal and the respondent should
pay the costs of and incidental to the appeal to be taxed.
The following are the formal orders which I would make
1. Appeal allowed.
2. Vary the orders below so that there be judgment for the appellant in the sum
of $81,833.25 together with interest thereon in the sum of $82,250.38
against the respondent.
3. The respondent to pay the appellant's costs of and incidental to proving
liability against the respondent together with one-half of the balance of the
appellant's costs below of and incidental to the action to be taxed.
4. The appellant to pay one-half of the respondent's costs below of and
incidental to the action other than the costs of and incidental to the issue of
liability as dealt with in 3 above to be taxed.
5. The respondent to pay the appellant's costs of and incidental to the appeal
to be taxed.
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