Hocking v Bell

[1945] HCA 16

71 CLR 430

AppealNegligence-Medical practitioner- Verdict against evidence-Prima-frie

case - Scintilla - Defendant's explanation - Sufficiency - Evidence-Inference -

-Respective functions of jury and judge-Fourth trial of same cause of action- Grant of new trial or entry of judgment-Powers of court on appeal-Entitled to April 5, 6,

verdict as a matter of -Jury-Prejudice-Conduct of case-Supreme Court Procedure Act 1900 (N.S.W.) (No. 49 of 1900), S. 7-Arbitration Act 1902 Aug. 10.

(N.S.W.) (No. 29 of 1902), S. 15 (b).

A married woman claimed damages against a surgeon alleging that after performing the operation of thyroidectomy he left part of a drainage tube in her neck until ultimately, some eighteen months after the operation, it came through a tonsil, passed through her stomach and was evacuated per rectum, she, in the meantime, having been seriously ill and suffering great pain. There were four trials of the action before a judge and a jury of four. At the first trial the jury gave a verdict for the plaintiff in the sum of £500. This was set aside by the Full Court of the Supreme Court and a new trial was ordered. At the second and third trials the jury disagreed, being evenly divided. At the fourth trial the evidence adduced for the plaintiff consisted of the testimony of herself, her husband, friends and acquaintances who saw her during her illness, a nurse who nursed her at her home for some time after the operation, and of expert medical evidence given by a retired professor of pathology and by a medical practitioner who appeared to have extensive medical and surgical knowledge but no special qualifications with reference to the thyroid gland * On 18th March 1946 special leave was granted by the Privy Council to the appellant to appeal in forma pauperis against this decision.

71 CLR 431

or the operation of thyroidectomy. The plaintiff herself was the only witness who gave evidence of having seen the piece of tube referred to by her. Medical witnesses called for the defendant, whose qualifications were much superior to those of the plaintiff's medical witnesses, strongly criticized the plaintiff's evidence and said that her story was inherently improbable; they contradicted some of the evidence given by the plaintiff's medical witnesses. The jury gave a verdict for the plaintiff in the sum of £800 and made a specific finding that the defendant left in the site of the operation a piece of rubber tube as described by them. The Full Court unanimously set aside this verdict, and, by a majority, directed judgment to be entered for the defendant. On appeal,

Held, by Rich, Starke and McTiernan JJ. (Latham C.J. and Dixon J. dissent- ing), that the appeal should be dismissed.

By Rich J. on the ground that the court has inherent power to prevent a miscarriage of justice by abuse of its process. In all the circumstances, since the judgment appealed from was the only one that could produce a just result, it should be upheld.

By Starke and McTiernan JJ. on the ground that the Supreme Court was justified in concluding that there was 110 evidence on which the jury could reasonably find a verdict for the plaintiff and in applying the provisions of the Supreme Court Procedure Act 1900 (N.S.W.) which provides that if the Court in Banco is of opinion that upon the evidence the plaintiff or the defendant is as a matter of law entitled to a verdict, the Court may order

Per Latham C.J., Starke and McTiernan JJ.: In New South Wales, after a trial by jury, the appellate court on appeal has no power to decide facts or to draw inferences of fact; and though it may order a new trial where the verdict is against evidence and the weight of evidence, it cannot order a verdict to be set aside and judgment to be entered for the party against whom the verdict was given unless under S. 7 of the Supreme Court Procedure Act 1900 (N.S.W.) that party is ' as a matter of law entitled to a verdict."

A defendant is " as a matter of law entitled to a verdict" if there is no evidence upon which the jury could reasonably find for the plaintiff.

Per Rich J.: Observations as to the application of S. 15 (b) of the Arbitration Act 1902 (N.S.W.) in matters requiring scientific investigation.

Decision of the Supreme Court of New South Wales (Full Court) Hocking V. Bell, (1944) 44 S.R. (N.S.W.) 468; 61 W.N. 224, by majority, affirmed.

APPEAL from the Supreme Court of New South Wales.

Stella Eileen Hocking, married woman, of Quirindi, New South Wales, brought an action in the Supreme Court of New South Wales claiming damages for negligence from George Bell, a duly qualified medical practitioner, practising as a surgeon at Macquarie Street, Sydney.

71 CLR 432

In her declaration the plaintiff alleged that she retained the defendant for reward to perform upon her a certain surgical operation and to undertake and give to her such care and attention as might be necessary consequential upon the performance of the operation and upon his acceptance of the retainer it became the duty of the defendant as such surgeon to use due and proper care, skill and diligence in and about the performance of the operation and such care and attention as aforesaid yet the defendant in the performance of the operation and in the giving to her of the said care and attention conducted himself SO unskilfully and with such lack of proper care and diligence that she, the plaintiff, was a long time sick; was greatly injured in her health and constitution; and suffered great pain and was put to great expense.

The defendant pleaded not guilty and issue was joined. Particulars delivered under the declaration by the plaintiff's solicitors to the defendant's solicitors were, inter alia, as follows

the plaintiff will allege that she was operated upon by your client in the lower region of the throat that a piece of drainage tube was inserted in the wound by your client and that this drainage tube was SO negligently or unskilfully manipulated by your client that it broke and that your client thereafter negligently failed to remove the portion of the said drainage tube remaining in the wound with the result that the plaintiff developed a complaint believed to be tetany in a very acute form-to such an extent that she was dangerously ill over a period of more than eighteen (18) months and that she only recovered from this illness on the passing of this piece of tube into the gullet whence it ultimately passed from the body per rectum." In the particulars the tube was described as being " a piece of soft rubber tube about 2 inches long, greyish in colour, and had the appearance of having been in water for some time. It was cut off straight at one end and torn at the other. On the side was a straight cut in which could be seen what appeared to be a swab and wire protruding from torn end of tube.

The tube &. is no longer in the possession of the plaintiff, having been discarded by her at the time of its passing."

The action was tried four times before a judge and a jury of four. At the first trial the jury returned a verdict in favour of the plaintiff in the sum of £500. The Full Court of the Supreme Court set aside this verdict and ordered a new trial (Hocking v. Bell 1 ). Leave to appeal from this order was refused by the High Court 2. At the second and third trials the jury disagreed, being evenly divided.

1(1942) 42 S.R. (N.S.W.) 130; 59 2(1942) 66 C.L.R. 671 (note). 71 CLR 433

After the third trial the defendant applied by motion to the Full Court for a verdict upon the evidence given in that trial on the ground that, under S. 7 of the Supreme Court Procedure Act 1900 (N.S.W.), he was as a matter of law entitled to a verdict. The motion was dismissed (Hocking v. Bell 1

At the fourth trial the judge submitted the following question to the jury "Did the defendant leave in the site of the operation the object substantially as described, that is, a piece of rubber tube about two inches long, cut off straight at one end and torn at the other, on the side a straight cut in which could be seen what appeared to be a swab and wire protruding from torn end of tube ? " written answer by the jury was as follows We find: that the defendant left in the site of the operation a piece of rubber tube of a length somewhat less than two inches, cut off straight at one end and torn at the other, part of which tube had been cut down one side and from which protruded some material which looked like wire and a swab from the torn end of the tube." The jury gave a verdict in favour of the plaintiff in the sum of £800. The Full Court unani- mously set aside this verdict, and, by a majority, directed judgment to be entered for the defendant: Hocking v. Bell 2.

The parties agreed at the hearing of the action that medical text-books and treatises referred to by them should be regarded as evidence in the action. Further facts and relevant statutory pro- visions appear in the judgments hereunder.

From the decision of the Full Court the plaintiff appealed to the High Court.

Shand K.C. (with him Carson), for the appellant. There was no power in the Full Court of the Supreme Court to enter a verdict for the respondent. The jury's verdict should be restored (i) on the appellant's positive evidence as to what occurred; (ii) on the medical evidence called by the appellant and by the respondent as to the possibility-and, on some evidence, of the probability- of the events alleged to have occurred (iii) upon the history of the illness of the appellant following the operation. The only reasonable explanation of the fact that for some eighteen months the appellant was suffering from tetany was the presence of some foreign body in the vicinity of the thyroid; (iv) because, upon the respondent's admitted conduct and reactions following the operation and other events referred to in the evidence, the jury was entitled to say that they were tantamount to admissions by the respondent

1(1943) 43 S.R. (N.S.W.) 154 60 2(1944) 44 S.R. (N.S.W.) 468; 61 71 CLR 434

that the thing alleged by the appellant had happened. There was evidence which, if believed, supports the verdict. The fact that there may be very strong evidence for the respondent is irrelevant for the purpose of considering whether there is evidence which would support the verdict. The story told by the appellant in respect of the drainage tube is not an impossible story but, on the contrary, is a probable one. The respondent's version of his method of pro- cedure in and about the operation varied from time to time in an endeavour to meet the allegations made by the appellant. That variation was significant. The jury was entitled to find that there was no proper or other inference to be drawn other than that the tetany was caused by a foreign body. It is worthy of note that immediately the foreign body was extruded as described by the appellant the tetany ceased. Upon the evidence given by the respondent himself the jury was entitled to say that what was described by the appellant had been done by the respondent. Admissions by a medical practitioner are not in a category different from that of a layman. The science of anatomy is not an exact science. The credibility of the respondent's witnesses, particularly his medical witnesses, was affected by reason of variations which appear in the evidence given at the various trials, therefore the jury was entitled to say that it did not accept their evidence. It may be that the respondent was faced with a dilemma, but, if so, it was a dilemma of his own making. The respondent, doubtless, offset the knowledge that the trouble was caused by the tube by the hope that it would be extruded, or, if it were not, that the infection would become quiescent. The evidence shows that although he denied it originally the respondent thought throughout that the appellant's condition was one of true tetany. The evidence given by the appellant's 'family " doctor is such that the jury would be justified in utterly disbelieving it and also in assuming that a certain letter written by the respondent and sent to that doctor was written and sent in bad faith. The final result of the condition of the appellant's tonsil is that the respondent's evidence provides no explanation. That is the only inference and certainly is one the jury is entitled to draw. If, as here, there is some evidence which supports the verdict of a jury, that verdict should not be disturbed by an appel- late court. The nature of the tests made and the treatment admitted by the respondent and other medical witnesses to have been given and prescribed following upon the reporting by the appellant of the extrusion of the tube, support the allegations made by the appellant. As far as a question arises between true and hysterical tetany there were available in October 1939 tests well known to

71 CLR 435

competent medical practitioners dealing with the appellant the application of those tests would have shown whether in her case it was true or hysterical tetany. These tests were not applied and treatment was given for true tetany. From those facts the proper conclusion is that those medical practitioners believed it was a case of true tetany. The wire-like protrusions from the tube as described by the appellant were doubtless pieces of gut used by the respondent to sew up the wound and which, through over- sight or other unexplained reason, had fastened the tube to a muscle. The gut, being in suppuration, had failed to dissolve. The evidence shows that a medical witness believed that the tube had been left in the wound therefore it is not unreasonable for the jury to believe it. In dealing with the appellant's evidence the Court below did not approach the problem from the correct angle. Mem- bers of that Court confused the functions of the court with the functions of the jury. The court must decide upon the worth of conflicting statements. In New South Wales there are three occasions upon which a verdict may be entered for the defendant, namely, (i) where the evidence, as here the medical testimony, is all one way; (ii) where the evidence is documentary the construction thereof is a matter for the court; and (iii) where the evidence by the defendant shows that there is not any foundation for a prima-facie case (De Gioia v. Darling Island Stevedoring &Lighterage Co. Ltd. 1; Aitken v. McMeckan 2 ).

[STARKE J. referred to Scown v. Haworth 3.] The decision of the majority of the Court below was based upon the ground that the case of the appellant depended upon impossi- bility and therefore no jury could possibly believe it. That was an incorrect approach. There is very little difference between the medical evidence advanced on behalf of the appellant and the medical evidence advanced on behalf of the respondent. It was open to the jury to find that the tube worked itself out by entering the side of the tonsil and then coming out of it, thus, in effect, going through the tonsil. It is a reasonable hypothesis that the tube travelled within the visceral compartment; therefore it would work its way up, perhaps outside the trachea, and burst through the strong substance of the trachea and all the time the inflammation was probably contained in the visceral compartment. That hypothesis meets the contention of the respondent's witnesses that the inflam- mation and suppuration containing the tube could not issue from the tonsil as alleged without destroying or seriously impairing

1(1941) 42 S.R. (N.S.W.) 1 ; 59 2(1895) A.C. 310, at p. 316. 3(1898) 24 V.L.R. 313. 71 CLR 436

something vital, e.g., the structures in the vascular compartment. Reference to medical text-books and treatises shows that there are not any muscles situate between the thyroid and the tonsil, thus the passage of the tube would be practically unimpeded. A likely explanation is that the tube flowed or moved along a channel of infection. The medical witnesses differ as to their opinions and some agree with the representations made on behalf of the appellant. The jury might reasonably infer, once the jurymen were satisfied that the tube entered the wound, that the tube aggravated the infection. The power conferred by S. 7 of the Supreme Court Procedure Act 1900 upon the Court below is limited to the granting of a new trial and does not empower the Court to enter a verdict for the respondent See Phillips v. Ellinson Brothers Pty. Ltd. 1. There was some evidence before the jury; the verdict of the jury should not be set aside unless reasonable men could not have arrived at the con- clusion. The only existing means whereby a verdict can be entered for the defendant is under the common law that if the Full Court is of opinion that on the evidence the plaintiff or the defendant is entitled at law to a verdict, such a verdict may be entered. The principle applicable is as enunciated in Dublin, Wicklow and Wexford Railway Co. v. Slattery 2-see also Shepherd v. Felt and Textiles of Australia Ltd. 3 and Driver v. War Service Homes Commissioner [No. 1] 4. There was not any conflict of evidence in De Gioia v. Darling Island Stevedoring &Lighterage Co. Ltd. 5. In Adelaide Stevedoring Co. Ltd. v. Forst 6 there was a lack of unanimity in the medical evidence and, having regard to the facts, a conflict as to the inference to be drawn. In conclusion it is submitted that there is evidence upon which reasonable men could find that the appellant's case was established, and, therefore, that she is entitled to have the verdict of the jury restored. The most the Court below was empowered to do was to grant a new trial; therefore the decision of that Court should be set aside and, in that event, a new trial granted. Having regard to the fact that there have been four trials of the matter and that twelve out of the sixteen jurymen have decided in favour of the appellant the Court should allow the verdict of the jury to stand (Goodwin v. Gibbons 7 ).

[DIXON J. referred to Foster v. Steele 8 and Swinnerton v. Marquis of Stafford 9.]

1(1941) 65 C.L.R. 221, at pp. 227, 2(1878) 3 App. Cas. 1155, at pp. 3(1931) 45 C.L.R. 359, at p. 379. 4(1924) V.L.R. 515. 5(1941) 42 S.R. (N.S.W.) 1 ; 59 6(1940) 64 C.L.R. 538. 1181, 1185, 1186, 1202. 7(1767) 4 Burr. 2108 [98 E.R. 100]. 8(1837) 3 Bing. N.C. 892 [132 E.R. 9(1810) 3 Taunt. 232 [128 E.R. 92]. 71 CLR 437

Cassidy K.C. (with him Reimer), for the respondent. There was a conflict between the evidence given by witnesses, medical and other- wise, for the appellant. Some of the evidence SO given is based not upon established facts but upon theories and inferences incorrectly drawn. Upon the evidence the allegations made by or on behalf of the appellant are not only improbable but are also impossible. The charges SO made involve a charge of criminal malpractice on the part of the respondent which is entirely without foundation. The story told in support of those allegations could not reasonably be accepted by any jury of reasonable men. The evidence given by the appellant herself during the course of the various trials varies to a greater or lesser extent in many material respects. The evidence

SO given does not agree in many respects with facts indisputably established. A finding that a tube was or could have been left in the wound is negatived by the weighty evidence of medical and other witnesses and this evidence is supported by hospital and other records. No reasonably minded person who approached the case free from prejudice or wrong considerations could come to the conclusion that a tube with or without a swab could have been left in the position described by or on behalf of the appellant. The evidence given by the appellant as to the alleged eruption and disposal of the tube does not stand up to test and, it is submitted, is merely imagina- tion or hallucination on the part of the appellant. The basis of hallucination exists in this case because it is an accompaniment of the condition of thyrotoxicosis and also of the condition of angio neurotic oedema associated with the appellant. The evidence relating to the appellant's blood count is of vital importance as further supporting the improbability of the allegations made by the appellant. The existence or otherwise of tetany is a comparatively small matter. It is not decisive as to the alleged omission to remove the tube. There is a large body of evidence which supports a medical theory that after a certain date the condition of the appellant was one of hysteria and not of tetany. Under S. 7 of the Supreme Court Procedure Act as a matter of law the respondent was entitled to a verdict. A court must satisfy itself that there is credible evidence that can be put to the jury and on which the jury are entitled to make a finding as to what is charged. It is the function of the court to determine whether or not there is credible evidence in the case (Banbury v. Bank of Montreal 1 ). Section 7 empowers the Full Court of the Supreme Court to enter a verdict. De Gioia V. Darling Island Stevedoring &Lighterage Co. Ltd. 2 is applicable to

1(1918) A.C. 626, at p. 670. 2(1941) 42 S.R. (N.S.W.) ; 59 W.N. 22. 71 CLR 438

this case. The matter of importance is: Where does the onus rest ? Alternatively, if the Court be of opinion that a verdict could not and/or should not be entered for the respondent then a new trial should be granted on the ground that the verdict found by the jury was unreasonable as being against the evidence and the weight of evidence. The granting of a new trial depends upon the circum- stances of the case (Goodwin v. Gibbons 1 ). The court has a dis- cretion where the verdict is plainly an unreasonable one and effects an injustice. The charge against the respondent involves serious malpractice amounting, under the charge of negligence, to criminal malpractice and in such circumstances the court will not allow an unreasonable verdict to stand. The way in which the case was conducted assisted towards the diversion of the jury's mind away from the real issue. This is of special importance in a case which presented technical difficulties to the jury. The suggestion by counsel that this was a case of a plaintiff fighting the British Medical Association was improperly made and was not founded on fact. In Commonwealth Life Assurance Association Ltd. v. Smith 2 this Court granted an application for a third trial. The jury should have been directed that the onus upon the appellant, having regard to the serious nature of the charge, was to prove her case either (i) to the comfortable satisfaction of the jury (Briginshaw v. Brigin- shaw 3 ), or (ii) as in a case New York v. Heirs of Phillips, d'cd 4- and see Helton v. Allen 5; Narayanan Chettyar v. Official Assignee of the High Court of Rangoon 6; Abrahams v. Catip 7; R. V. Crowe 8; and In re a Solicitor 9 ). Under rule 102 of the Supreme Court Rules the particulars furnished by the appellant became part of the record and became and remained part of the pleading. Those particulars defined the limits of the matters at issue and, being a case of negligence, must be proved strictly.

Shand K.C., in reply. The court is averse to a multiplicity of trials of an action, particularly in cases where juries have more than once found verdicts for the same party (Swinnerton v. Marquis of Stafford 10; Foster v. Steele 11; Davies v. Roper 12; Foster V. Allenby 13 ).

1(1767) 4 B irr. 2108 [98 E.R. 100]. 2(1938) 59 C.L.R. 527. 3(1938) 60 C.L.R. 336. 4(1939) 3 All E.R. 952, at p. 955. 5(1940) 63 C.L.R. 691, at pp. 696, 697, 701. 702, 713. 714. 6(1941) 39 Allahabad L.J. 683. 7(1942) Q.L.R. 26. 8(1942) .L.R. 288. 9(1939) 56 W.N. (N.S.W.) 53. 10(1810) 3 Taunt. 232 [128 E.R. 92]. 11(1837) 3 Bing. N.C. 892 [132 E.R. 12(1856) 2 Jur. N.S. 167. 13(1837) 5 Dowl. P.C. 619. 71 CLR 439

[During the course of argument the following medical text-books and treatises were referred to :-

(a) On behalf of the appellant :-Allbutt &Rolleston on System of Medicine (1910), vol. 8, pp. 590, 594, 694 Barr on Modern Medical Therapy in General Practice (1940), vol. 3, p. 3129 Beasley &John- ston's Manual of Surgical Anatomy, 2nd ed., pp. 114, 162; Binnie's Treatise on Regional Anatomy, vol. 1, pp. 494, 496; Boyd's Textbook of Pathology, 2nd ed. (1934), p. 776; Cecil's Textbook of Medicine (1927), p. 1139 Cunningham's Textbook of Anatomy, 4th ed., 6th ed., 7th ed., (generally); Deaver on Surgical Anatomy, vol. 2, p. 457 Fagge on Principles and Practice of Medicine (1886) Gray on Ana- tomy (1897), pp. 406, 1412; Jamieson's Illustrations of Regional Anatomy, pp. 20, 26-28, 30, 38, 40, 42, 43, 50, 51, 55B; Lexer &Bevan on General Surgery (1908), pp. 46, 170; McCrae's Osler's Principles and Practice of Medicine, pp. 420 et seq.; Meakins on The Practice of Medicine (1936) Muir's Textbook on Pathology (1936), p. 181; Quain on Anatomy, 10th ed. (1898), pp. 57-59, 311; Rolles- ton's British Encyclopaedia of Practical Medicine, vol. 9; Spalteholtz on Atlas of Anatomy, vols. 1, 2, 3.

(b) On behalf of the respondent :-Cunningham's Textbook of Anatomy, 4th ed., pp. 459, 466, 470, 471, 1063, 1066, 1067, 1070, 1135; 6th ed., p. 460; 7th ed., pp. 418, 1373; Deane-Lewis' Practice of Surgery (By Reinoff), pp. 242-256; Deaver on Surgical Anatomy, vol. 2, pp. 605, 608, 613; Fowler on Tonsil Surgery, pp. 38, 154; French on Differential Diagnosis, pp. 186, 187; Joll on Diseases of the Thyroid Gland, p. 591; Meakins on The Practice of Medicine (1936) Quervain on The Goitre, p. 133; Sabotta &McMur- rich on Atlas of Anatomy, vols. 1, 2, 3, pp. 300, 363-365, 460, 463, 464, 467, 468; Shelling on The Parathyroids (1935), pp. 22, 157; Sloan on The Thyroid, pp. 232, 234, 238, 260, 317; Spalteholtz on Atlas of Anatomy, vols. 1, 2, 3; Testut on Anatomy, vol. 4; Thompson on Diseases of the Nose and Throat, 3rd ed. (1926); Todd &Fowler on Muscular Relations of the Tonsil, pp. 362-367; Wright on Applied Physiology, 7th ed. (1940).]

Cur. adv. vult. The following written judgments were delivered :-

LATHAM C.J. This is an appeal from an order of the Full Court of the Supreme Court of New South Wales setting aside a verdict for £800 for the appellant in an action claiming damages for negligence, and directing that judgment be entered for the defendant. The plaintiff, a married woman, claimed damages for negligence against the defendant, a surgeon, alleging that after performing the operation

71 CLR 440

of thyroidectomy he left part of a drainage tube in her neck, which remained in the neck until ultimately it came through the tonsil into the mouth some eighteen months after the operation. In the meantime, the plaintiff was seriously ill and suffered great pain.

There have been four trials before a judge and a jury of four. C.J. At the first trial there was verdict for the plaintiff for £500. The

Full Court set aside this verdict and ordered a new trial See Hocking v. Bell 1. Leave to appeal from this order was refused by this Court 2. At the second and third trials the jury disagreed, being evenly divided. After the third trial the defendant moved the Full Court for a verdict. The motion was dismissed (Hocking v. Bell 3 ), and a new trial was again ordered. At the fourth trial there was a verdict for the plaintiff for £800, and the jury made a specific finding in answer to a question submitted to them by the learned trial judge. The Full Court unanimously set aside this verdict, and, by a majority, Davidson and Halse Rogers JJ. (Roper J. dissenting), directed judgment to be entered for the defendant (Hocking V. Bell 4 ). It is from this order that the plaintiff now appeals to this Court. The trial lasted for thirty-six days, and the evidence given at the trial occupies nearly 1,400 pages of transcript. The testimony of the plaintiff and of witnesses for the plaintiff as to actual events was challenged by the defendant, and the expert medical evidence called by the plaintiff was also challenged. There was a conflict of evidence upon many matters.

In a trial by jury the jury is the constitutional tribunal for deciding issues of fact. As Lord Wright said in Mechanical and General Inventions Co. Ltd. v. Austin 5: "The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury." Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed-that is the responsibility of the jury.

If a verdict is against evidence and the weight of evidence a new trial may be ordered. If the evidence on one side SO greatly pre- ponderates over the evidence on the other side that it can be said that the verdict is such as reasonable jurors, understanding their responsibility, could not reach, a verdict may be set aside and a new trial may be ordered. Caution is necessary in applying the principle that a verdict may be set aside if it is against evidence and the weight of evidence. That principle must not be interpreted in such a manner

1(1942) 42 S.R. (N.S.W.) 130 ; 59 2(1942) 66 C.L.R. 671 (note). 3(1943) 43 S.R. (N.S.W.) 154 ; 60 4(1944) 44 S.R. (N.S.W.) 468 ; 61 5(1935) A.C. 346, at p. 373. 71 CLR 441

as to deprive the jury of its right of believing one witness on one side against twenty (or any number) of witnesses on the other side.

Setting aside a verdict is one thing. Entering a contrary verdict is quite a different thing. The giving of a verdict is the function of jurors, not of judges. Special provision, by statute or rules, is necessary in order to enable the court to go beyond setting aside the verdict of a jury and ordering a new trial and to enable it to direct a contrary verdict to be entered and to give judgment accordingly See Shepherd v. Felt and Textiles of Australia Ltd. 1, per Dixon J.

Under the Judicature system in England, Order 58, r. 4, of the Rules of the Supreme Court permits the court upon appeal to draw inferences of fact and to enter judgment if it thinks fit, notwithstand- ing the verdict of the jury. This is a power which should be exer- cised " with considerable caution" and only "where the evidence is such that only one possible verdict could reasonably be given upon the evidence" (Baird v. Magripitis 2, per Starke J.) But in New South Wales the Judicature system is not in force, and the powers of a Full Court are less extensive. After a trial by jury the Full Court upon appeal has no power to draw inferences of fact and though it may order a new trial where the verdict is against evidence and the weight of evidence, it cannot order a verdict to be set aside and judgment to be entered for the party against whom the verdict was given unless the conditions prescribed by the Supreme Court Procedure Act 1900, S. 7, are satisfied. Section 7 provides that " In any action, if the Court in Banco is of opinion that the plaintiff should have been nonsuited, or that upon the evidence the plaintiff or the defendant is as a matter of law entitled to a verdict in the action or upon any issue therein, the Court may order a non- suit or such verdict to be entered."

Thus, in the present case the Full Court could properly order a verdict to be entered for the defendant only if the defendant is

as a matter of law entitled to a verdict." If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is SO negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defen- dant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, SO that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, SO that the court may

1(1931) 45 C.L.R., at p. 379. 2(1925) 37 C.L.R. 321, at p. 334. 71 CLR 442

properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case See Shepherd v. Felt &Textiles of Australia Ltd. 1, per Starke J. " Where on the uncontroverted facts the action or an issue must be determined in favour of one party, then, as a matter of law, that party is entitled to the verdict in the action or upon the issue. And it is necessarily wrong to leave any conclusion or inference in such circumstances as a question of fact to the jury."

Under S. 7 the Full Court can never direct a verdict for the party upon whom the onus of proof lies (the plaintiff in this case), because the question whether or not the evidence for that party should be believed is essentially and necessarily a matter for the jury. But however great the preponderance of evidence may be in favour of the other party, the Full Court cannot on that ground direct a verdict to be entered for that party. In De Gioia v. Darling Island Steve- doring &Lighterage Co. Ltd. 2, Jordan C.J. expressed the rule which is applicable by saying that "If the stage is reached that a prima-facie case has been made out, the question whether the jury should accept that case, or should accept rebutting evidence called for the defendant, is one for them, no matter how over- whelming the rebutting evidence may be; and the trial judge must leave it to them. If the jury find for the plaintiff, and the Full Court rules that the rebutting evidence is overwhelming, it is express- ing the opinion that the defendant was, as a matter of fact, not of law, entitled to a verdict: Wilton v. Leeds Forge Valley Co. 3; How V. London &North Western Railway Co. 4. It cannot, therefore, enter a verdict in his favour, but can only order a new trial" See also Huddart Parker Ltd. v. Cotter 5.

There is sometimes great difficulty in distinguishing between a case of no evidence upon which a jury could reasonably find for a plaintiff (so as to justify entry of a verdict for the defendant) and a case of some evidence for the plaintiff but greatly preponderating evidence for the defendant (where a verdict for the plaintiff can be set aside and a new trial ordered but it would be wrong to direct a verdict for the defendant). Davidson J. and Halse Rogers J. refer to this difficulty in this case 6. But this distinction, though difficult to apply in particular cases, is very real and important. The relevant principle was expressed in Dublin, Wicklow and Wexford Railway

1(1931) 45 C.L.R., at p. 373. 2(1941) 42 S.R. (N.S.W.) 1, at p. 3(1884) 32 W.R. 461. 4(1891) 2 Q.B. 496, at pp. 500, 501. 5(1942) 66 C.L.R. 624, at p. 660. 6(1943) 43 S.R. (N.S.W.), at pp. 71 CLR 443

Co. v. Slattery 1, by Lord Hatherley, who said that he concurred with Mr. Justice Barry's opinion in the court below, viz.: When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury." The question for the court is not a question whether the evidence for the plaintiff should be believed or not. In the last-cited case 2 their Lordships all agreed in this view and they emphasized the importance of maintaining that principle under a system of trial by jury. The headnote fairly states the decision: "Where there is conflicting evidence on a question of fact, whatever may be the opinion of the judge who tries the cause as to the value of that evidence, he must leave the consideration of it for the decision of the jury."

The judge must leave the case to the jury, because, however preponderating the evidence against the plaintiff may be in his opinion, it is a matter for the jury to determine what evidence they believe. All their Lordships were of opinion that the verdict in the case under consideration was against evidence and against the weight of evidence, but nevertheless it was held that a verdict should not be entered for the defendant. Lord Cairns L.C., referring to the distinction between the question whether a verdict was against evidence or the weight of evidence and the question whether there was no evidence which, if believed, would justify a verdict for the plaintiff, said "I have already said that your Lord- ships have not now before you the question of whether the ver- dict was against evidence, or against the weight of evidence. But

I feel bound to say that if that question were now open, I should, without hesitation, be of opinion that a verdict more directly against evidence I have seldom seen " 3.

Similar statements are made by Lord Penzance 4, by Lord O'Hagan 5. Lord Selborne says that the evidence must be left to a jury, however strong contradictory evidence might be by which it was met 6. So also Lord Blackburn said that he quite agreed "that it is not enough that the balance of testimony should be overwhelmingly on one side, and that therefore a verdict the other way ought to be set aside as unsatisfactory" 7, and he said " in order to avoid all chance of misapprehension hereafter, I think it better to repeat that I do not think that the cogency or strength of the evidence in support of a disputed fact justifies the judge in directing the jury to find it" 8. He adds that where there is an

1(1878) 3 App. Cas., at p. 1168. 2(1878) 3 App. Cas. 1155. 3(1878) 3 App. Cas., at p. 1165. 4(1878) 3 App. Cas., at p. 1181. 5(1878) 3 App. Cas., at pp. 1182, 6(1878) 3 App. Cas., at p. 1187. 7(1878) 3 App. Cas., at p. 1202. 8(1878) 3 App. Cas., at p. 1216. 71 CLR 444

A. admission, the judge is not only entitled, but bound to direct the

jury to act upon the admission. Finally, Lord Gordon says that: " Whether the evidence be strong, or conflicting, or weak, it is equally the province of a jury to decide upon it 1. See the references to the Dublin, Wicklow and Wexford Railway Co.'s Case 2 in Banbury V. Bank of Montreal 3. See also Metropolitan Railway Co. V. Jackson 4, per Lord Blackburn 'It is for the jury to say whether and how far the evidence is to be believed."

It may be, however, that, even though the plaintiff makes out a prima-facie case, uncontested and indisputable evidence called by the defendant may be such as to provide an explanation which deprives the plaintiff's case of its prima-facie effect, as in De Gioia V. Darling Island Stevedoring &Lighterage Co. Ltd. 5. In such a case the position is that upon all the evidence a jury acting reason- ably can only come to one conclusion, SO that as a matter of law the party on whom the onus of proof does not lie is entitled to a verdict. But this exceptional case arises only where there is no conflict of evidence, SO that the case falls within the general principle which S. 7 embodies, viz., that where there is really no question of fact for the jury to decide the Full Court may determine that, as a matter of law, one party is entitled to a verdict.

I have not referred in detail to the authorities which establish the proposition which I have stated, because they are very fully set out in the judgment of Davidson J. in this case 6. I particularly mention, however, Ryder v. Wombwell 7 and Mechanical and General Inventions Co. Ltd. v. Austin 8.

The principles stated must be applied in reference to the verdict actually given. In the present case the jury did not merely give a general verdict for the plaintiff for £800. The jury also answered a specific question submitted to them by the learned judge. This question related to the basis of the plaintiff's claim, that is, the leaving of a piece of a rubber tubing in her neck after the operation, and the verdict of the jury must therefore be considered in relation to their finding upon the particular fact to which the question relates. But the answer to this question must be regarded from two points of view :-(1) In order to determine whether as a matter of law the defendant is entitled to a verdict, it is necessary to deter- mine whether there was any evidence upon which the jury could

1(1878) 3 App. Cas., at p. 1217. 2(1878) 3 App. Cas. 1155. 156-161; 60 W.N., at pp. 91-95. 3(1918) A.C., at pp. 672, 673. 4(1877) 3 App. Cas. 193, at p. 207. 5(1941) 42 S.R. (N.S.W.) 1; 59 6(1943) 43 S.R. (N.S.W.), at pp. 7(1868) L.R. 4 Ex. 32. 8(1935) A.C. 346. 71 CLR 445

reasonably find for the plaintiff the general verdict which the jury did in fact find. From this point of view the answer to the specific question submitted to the jury is not decisive of the case, because if there was evidence which would justify a verdict for the plaintiff with no reason given, the fact that the jury in effect gave (if it does give, as in this case) what may be held to be a wrong or unsupport- able reason for the verdict (in the sense that it was a reason that reasonable men could not properly regard as such) would not entitle the defendant to a verdict. In such a case the defendant could not be said, as a matter of law, to be entitled to a verdict, though he might have strong grounds for claiming a new trial. (2) Thus when the question is whether the verdict actually given is against evidence and the weight of evidence, SO as to justify the granting of a new trial, then the particular reason assigned by the jury for its verdict as the ground of the verdict is a matter of great importance. If, in the present case, a reasonable jury properly instructed could not come to the conclusion stated in the answer to the question submitted to them there would be ground for ordering a new trial, because it would not appear that the verdict was not based upon the unsupportable

There is one other matter to which reference should be made before entering upon a consideration of the evidence. The granting of a new trial is a matter of discretion. The court is not bound to grant a new trial in every case where it has the power to do SO. In exercising the power to grant a new trial the court should consider all the circumstances of the case, including, in this particular case, the fact that several trials have already taken place.

I propose therefore to examine the evidence in the case for a par- ticular purpose, namely in order to determine whether there was evidence upon which a jury could reasonably reach a verdict in favour of the plaintiff. I will also consider whether there was evidence upon which a jury could reasonably answer the specific question submitted to the jury by the learned trial judge in the way in which in fact the jury did answer that question. The object of the examination of the evidence will not be to consider whether a verdict for the defendant, if it had been given, could have been supported. There is no doubt that the defendant adduced evidence which, if believed by the jury, would have justified the jury in finding a verdict for him. He denied the allegations of the plaintiff as to the actual incident of leaving a part of the tube in the wound, and he adduced a most impressive volume of medical evidence which, if accepted by the jury, would involve a disbelief of other evidence given by the plaintiff as to her illness and associated incidents, and

71 CLR 446

would involve also a disbelief of the medical evidence called on behalf of the plaintiff. The question is not whether the defendant's evidence is overwhelmingly stronger than that for the plaintiff, but whether the evidence for the plaintiff, if believed, including evidence as to any admitted or undisputed facts (See De Gioia's Case 1 ), is such that a jury could reasonably find for the plaintiff. The question before this Court emphatically is not a question whether the evidence for the plaintiff should be believed or not.

The plaintiff sued the defendant for damages for negligence. No negligence was charged with respect to the performance of the operation of thyroidectomy. Particulars of negligence were given as follows :---- The plaintiff will allege that she was operated upon by your client in the lower region of the throat; that a piece of drainage tube was inserted in the wound by your client and that this drainage tube was SO negligently or unskilfully manipulated by your client that it broke and that your client thereafter negligently failed to remove the portion of the said drainage tube remaining in the wound with the result that the plaintiff developed a complaint believed to be tetany in a very acute form-to such an extent that she was dangerously ill over a period of more than eighteen (18) months and that she only recovered from this illness on the passing of this piece of tube into the gullet whence it ultimately passed from the body per rectum."

It is not disputed that evidence that the defendant left a piece of tube in the plaintiff's neck is evidence of negligence.

The plaintiff gave particulars of the nature and description of the piece of rubber tube mentioned and, in particular, of the shape, size, length and colour thereof in the following terms :- A piece of soft rubber tube about 2 inches long, greyish in colour, and had the appearance of having been in water for some time. It was cut off straight at one end and torn at the other. On the side was a straight cut in which could be seen what appeared to be a swab and wire protruding from torn end of tube."

The learned judge at the trial submitted the following question to the jury 66 Did the defendant leave in the site of the operation the object substantially as described, that is, a piece of rubber tube about two inches long, cut off straight at one end and torn at the other, on the side a straight cut in which could be seen what appeared to be a swab and wire protruding from torn end of tube ?

When the jury returned into the court with a verdict for the plaintiff for £800 the foreman said :- We have not answered the question in the words supplied by your Honour but we have found

1(1941) 42 S.R. (N.S.W.) 1; 59 W.N. 22. 71 CLR 447

certain facts on that particular question, the answers of which I H. C. OF have here."

The answer to the question was then handed to the learned trial judge. It was in the following terms We find That the defendant left in the site of the operation a piece of rubber tube of a length somewhat less than two inches, cut off straight at one end and torn at the other, part of which tube had been cut down one side and from which protruded some material which looked like wire and a swab from the torn end of the tube."

The evidence adduced for the plaintiff consisted of the testimony of the plaintiff herself, her husband, and friends and acquaintances who saw her during her illness, and a nurse who nursed her at her home for some time after the operation, and of expert medical evi- dence given by Professor D. A. Welsh and Dr. G. S. Thompson.

Evidence was given that the plaintiff was in ill health in 1937. She had an enlarged thyroid gland. She was examined by Dr. K. O'Hanlon at Quirindi on 23rd August 1937. She was then treated by Dr. J. W. Flynn for giant urticaria and angio neurotic oedema, which, as stated by Dr. E. P. Sloan in his book The Thyroid, (1935), p. 120, are affections which occasionally occur in goitre cases. She was treated in the Quirindi Hospital from 19th October to 15th November. In a letter to Dr. H. J. Ritchie written on 12th February 1938, Dr. O'Hanlon describes her goitrous condition, stating that the thyroid gland was very prominent, and that he thought she was thyrotoxic. Upon Dr. O'Hanlon's advice she consulted Dr. Ritchie on 21st February 1938, who diagnosed the case as one of thyrotoxicosis. Thyrotoxicosis is a condition pro- duced by over-secretion of the thyroid gland. It results in nervous- ness, hot flushes, palpitations, emotional disturbance, and sometimes protrusion of the eyes (exopthalmie goitre) and causes a loss of weight. Dr. Ritchie was of opinion that an operation was desirable, and he referred the plaintiff to Dr. Bell. Dr. Bell is a surgeon of extensive experience and with high qualifications. The plaintiff went into St. Luke's Hospital, and was prepared for the operation during a period of rest and treatment.

The operation took place on 15th March 1938. The operation involved the making of a horizontal incision at the base of the throat and a penetration of the structures overlying the thyroid gland. The skin, the platysma muscle and the cervical fascia would be cut. The thyroid gland lies behind the infrahyoid muscles (the sterno-thyroid, the sterno-hyoid, and the omo-hyoid) and is over- lapped laterally by the sterno-mastoid muscle. The infrahyoid muscles would be either separated or cut, the pretracheal fascia

71 CLR 448

continuous with the sheath of the thyroid gland and the capsule of the gland would be cut and SO much of the thyroid removed as was in the judgment of the surgeon necessary. Special care is taken in this operation to avoid damage to the parathyroid glands which are small bodies about the size of half a split pea, varying in number, lying behind the thyroid gland itself. The removal of the gland is a delicate operation because the gland is perhaps the most highly vascular part of the body, and a large number of blood vessels have to be tied in order to prevent haemorrhage. The wound is then sewn up with catgut, the gland being first sewn, and then the various structures overlying the gland are rejoined by stitches as required, and finally the external portion, the platysma muscle and the skin, are sewn, generally with horsehair. In order to provide drainage of the wound, a rubber tube is inserted into the place which had been occupied by the thyroid gland. It is a common practice to cut a small hole in the tube towards the inner end to assist drainage. The tube may be inserted either before or after the stitch- ing is completed. The defendant was not sure whether he finished stitching before or after the tube was placed in position. The doctor who gave the anxesthetic to the plaintiff had no recollection of the operation but said that the practice of the defendant, with which he was familiar, was to do some internal stitching after he had inserted the tube. The tube is removed within twenty-four to forty-eight hours after the operation. The tube lies loosely in the wound, but is prevented from slipping into the sinus, that is, the incision, by being attached to the skin by a horsehair stitch and by a safety pin through the external end of the tube.

The hospital records show a normal progress on 15th and 16th March. On 17th March these records state Tube removed and 3 sutures. Less discharge. Condition good." The following is the plaintiff's account of the removal of the tube he " (Dr. Bell) " said the tube was not working and he would take it out SO he loosened some stitches and pulled the tube in his fingers, shook the tube, and it did not come out and SO he pulled a little harder and it still did not come SO he put his hand on my forehead and held the head back firmly and pulled and whatever it was came out and he said Damn' and I said Oh.' He held it in his fingers for a second and I saw it, just a little dark piece of rubber, then he threw it into the tray and he and the sister turned around and left the room. had a stinging sensation in the throat. It stung very much there (indicating)."

The nurse who was present when the tube was removed was not identified by any evidence. The progress of the plaintiff was then

71 CLR 449

not as satisfactory as before. Sutures were removed from time to time, but the temperature of the plaintiff rose and there was a purulent discharge from the wound, together with swelling of the neck. The discharge continued until the plaintiff left the hospital on 14th April, when she went home. Before she left the hospital she had a feeling of "pins and needles in her hands and feet, and calcium lactate was prescribed by the defendant. " Pins and needles are frequently the first sign of tetany, which is a condition involving spasms of the body, in which the muscles of various parts of the body become rigid, resulting sometimes in great pain. Tetany may be caused in various ways, but one cause is to be found in injury to the parathyroid glands. These glands control the quantity of available calcium in the blood and a deficiency in such calcium brings about tetany.

When the plaintiff went home she still had the feeling of pins and needles, and she had cramps and severe pain in the feet and legs. Dr. O'Hanlon saw her on 30th April and on 2nd May her husband wrote Dr. Bell a letter in which he stated that The throat is not yet healed, she has taken out seven knots since coming home. It is not discharging SO freely.

The whole body has been much swollen until to-day. It seems slightly less swollen to-night.

The tetany is still very annoying, but the attacks do not last quite SO long."

Dr. Bell replied on 4th May, stating that he had been speaking to Dr. Ritchie about the plaintiff and that Dr. Ritchie suggested that she should take calcium in the form of calcium gluconate.

She was treated by Dr. O'Hanlon, and, in accordance with his advice, again went into the Quirindi Hospital, and remained there from 4th May to 9th June. On 10th May Dr. O'Hanlon wrote to the defendant a letter containing the following There was a free discharge from her neck and she told me she had recovered several pieces of suture material. She had also been troubled very much by contractions in her forearms and legs and occasionally in her facial muscles. A few days after I first saw her I persuaded her to go into hospital where she is at present-there we recovered more catgut and with frequent foments to the neck there is less discharge and it appears to be generally better. However, the tetany is I think worse. Yesterday she had a very severe spasm involving prac- tically her whole body, it was accompanied by SO much pain that I was forced to administer a mild chloroform anaesthesia (not a very safe treatment I know-considering her condition) until a solution of calcium chloride 10% could be prepared for intravenous adminis-

71 CLR 450

tration. I gave 10 cc.'s of this solution, with remarkably rapid and good result, later in the day Mrs. Hocking said she felt well, but had the feeling that she was about to go into another spasm however this has not occurred. I propose to give her a daily intra- venous injection for a few days at least.

When I first saw her on her return, I put her on to Glucophos because of its calcium gluconate content, but I have ordered some of the Sandoz preparation.

Some text-books regard post-operative tetany as being fatal very often-what is your opinion

The Quirindi Hospital records, together with the evidence of the plaintiff, show that the wound in the neck was frequently fomented, and was kept open in order to permit an effective discharge. Pieces of catgut came out from time to time. (Catgut lasts longer in pus than in healthy tissue.) The hospital records also show that the nurses were directed to watch carefully for and report any tetanic spasms, and several spasms are recorded. Intravenous injections of calcium chloride were given. The wound improved, but tetany spasms are recorded up to 1st June. The records also contain references to swelling in the plaintiff's neck. On 9th June the plain- tiff left the hospital and went home. The wound did not finally close until the end of June or the beginning of July. On 29th June the defendant wrote to the plaintiff's husband, saying that he was sorry the news was not better about the muscle spasms, and that he had informed Dr. O'Hanlon about some recent methods of treat- ment and had sent him up some special injections for him to use. During the succeeding months the plaintiff was treated by injections, sometimes of calcium and sometimes of paroidin-a parathyroid extract. The medical evidence for the plaintiff and for the defendant was that this treatment was essentially a treatment for tetany. On 17th January 1939 Dr. O'Hanlon wrote to the defendant saying that the plaintiff was improving, and that the major attacks, though not less frequent, were becoming less severe, though she had frequent minor spasms which did not leave the muscles involved as sore as before. He reported that she was not able to tolerate the large doses of calcium lactate for more than a month or so, and that she was having occasional doses of paroidin and also of morphia. Dr. O'Hanlon saw the plaintiff in February 1939. The plaintiff, her husband and Dr. O'Hanlon gave evidence that the latter stated that he could do nothing further for the plaintiff. He did not see her again until September 1939. In the meantime her husband adminis- tered calcium and paroidin, sometimes by subcutaneous injections. On 27th May the defendant wrote giving the plaintiff his good

71 CLR 451

wishes, and saying that he had been talking to Sir Alan Newton in Melbourne about a similar case and that Sir Alan Newton was a great believer in cod liver oil and calcium-a treatment which had resulted in the complete recovery of some patients.

The evidence of the plaintiff, her husband and a number of friends and acquaintances, including Sister Sly, who nursed her for a time after she came out of the Quirindi Hospital in June 1938, was that her neck was swollen from time to time. There was also evidence that her neck was sometimes swollen SO severely that she had diffi- culty in turning her head, and sometimes had to move the whole body if she wished to look in another direction. The plaintiff and her husband also gave evidence that there was a continuance of the muscular spasms throughout 1938 and during 1939.

The plaintiff and her husband gave evidence that on 2nd October 1939 she had a very violent spasm. Her evidence is as follows: :-

on the Saturday and Sunday I was constantly drawn up with the tetany spasms. My muscles never relaxed once. I was closely drawn. They would give a little and I could straighten in bed but sometimes my knees were drawn up. I was drawn up, round. My back was bent up round. On the Monday I was really very ill. Round about 3 o'clock I did not think I was going to live any longer. I had my neck SO bad. My husband came home round about then-I could not say exactly what time-and I had a cough- ing fit. I seemed to be choking. I started to cough and I swallowed something.

Q. How was your mouth ? A. I could not open or shut it. My teeth were not close together.

Q. You seemed to swallow something ? A. Yes, and I took a terrific-lurch and the muscles seemed to tighten up dreadfully hard. Something burst into the left side of my face. I felt some- thing knock through, as it were. I felt a sensation like something bursting. I had something on my tongue and I swallowed it, what- ever it was.

Q. What happened after that. What was your condition ? A. was still very ill after that for quite a while.

Q. Did you feel any sensation following that A. I do not remember clearly, but I think next day I felt a sensation in the stomach. Of course I felt something going down my stomach. It went very slowly. It seemed to move down my stomach."

After 2nd October there were no spasms. Her husband gave purgatives to the plaintiff and on the following Thursday morning, 5th October, she had a motion and she said that she saw something in the receptacle from the commode which she

71 CLR 452

out in her fingers. She said that while she was emptying the receptacle she was startled by the approach of somebody coming and she dropped the thing into the pan, where it was taken away by the flush. On the next day she made a sketch of the article, which she said was not to scale, but was intended to show her husband what sort of thing it was which had passed through her The thing I had in my finger, I would say a soft greyish piece of tube like a piece of rubber which had been in water for some time. It was swollen. It was not smooth like a new piece of tube.

Q. What about the shape ? A. There was a straight cut at one end. It was split up within half an inch of the end and it had in that opening a swab which I thought was a piece of marine sponge with a blackish-looking stuff. It had come from this sponge and it looked like black wire but when I bent it it would fly back straight. It was like horsehair, and it would fly back quickly straight. It looked like wire to me but it could not have been wire."

It may be mentioned that it was not suggested in cross-examination of the plaintiff or by any evidence for the defendant that the plaintiff had any knowledge of or familiarity with drainage tubes or the manner in which they might be cut.

Dr. O'Hanlon saw the plaintiff on 6th October and on 7th October he sent the plaintiff's sketch to the defendant with a letter in which he said :-

'Mr. Hocking gave me the following history-Last Monday she had as bad an attack of tetanic spasm as she has ever had, she complained of pain in the neck which was swollen. Until Wednesday she complained of pain and soreness from the neck to the stomach, the act of swallowing was painful, he thought she had symptoms of indigestion and gave her castor oil, salts, etc. On Thursday Mrs. Hocking had a bowel action and passed a piece of grey rubber tubing, squarely cut on one end and ragged on the other, the tube was partially split up and stuck in the lumen was what she took to be a small piece of marine sponge about which was twisted a piece of wire.

I enclose the sketch she made for her husband and which he passed on to me. Mrs. Hocking emptied the tube along with the bowel action result into the W.C. SO neither Mr. Hocking or I saw it. Mrs. Hocking's description is too vivid for the article to be imaginary SO of course I was somewhat nonplussed when I was asked to explain it all.

Assuming that it was a piece of drainage tube that was accidentally left behind-I suppose it is possible that it could work its way into the oesophagus, though to me it seems strange that it did not work out through the sinus which persisted for SO many weeks after her

71 CLR 453

return from Sydney. Mrs. Hocking on a few occasions did complain of soreness in the neck, but at no time did I ever detect any symp- toms that would indicate an X-ray examination-naturally the possibility of a foreign body being the cause never entered my mind. Within a month or six weeks after her return from Sydney her nurse did recover undissolved sutures on several occasions the sinus eventually closed and now she has an excellent scar. The attacks of tetany have become fewer nevertheless, Mrs. Hocking is still far from well, she is very unsteady when she tries to walk.

If a foreign body has remained in the neck all this time do you think that it may be a possible cause of the tetany and could we now expect an improvement in her general condition? You understand, Doctor, that this question is based on an assumption only."

On 11th October the plaintiff wrote to the defendant saying that a piece of drain tube had been left in her neck and that it burst into her gullet SO that she almost choked. The defendant replied on 15th October, saying that he was sorry to hear that she had been ill again, that he had had a letter from Dr. O'Hanlon and had spoken to him on the telephone, and adding

"It is difficult to explain your last illness and the 'piece of drain tube' which you say passed by the bowel.

I saw Dr. Ritchie during the week.

I think you should come to Sydney for a medical investigation in order to see if we can advise some medical treatment to improve your health."

The plaintiff came to Sydney on 26th October and went into St. Luke's Hospital. She remained in the hospital until 3rd Novem- ber. A blood test was taken by Dr. Tebbutt and it showed a calcium deficiency, the figure being 7.2 milligrams per cubic centi- metre when the normal figure to be expected was 10. The defendant and Dr. Marsh, a highly qualified throat specialist, examined the plaintiff's throat, and she returned to her home. In November 1939 Dr. Ritchie prescribed calcium gluconate for her.

The evidence to which I have hitherto referred is evidence of events alleged by the plaintiff to have happened. I come now to evidence consisting of expressions of medical opinion. Professor David Arthur Welsh, who was from 1902-1936 Professor of Pathology in the University of Sydney, gave evidence for the plaintiff. He had made a special study of the thyroid and parathyroid glands, but had had little or no actual surgical experience. He described the glands and explained that the parathyroid glands regulate the calcium content of the blood by taking calcium salts from the bony skeleton, and that if the calcium content of the blood dropped below 10 there

71 CLR 454

was latent tetany, and if much below 10 there was open and declared tetany. He said that if the parathyroid glands were reduced in number or if their function was interfered with in any way by interference with the blood supply or if they were destroyed by suppuration or inflammation they could not perform their function of taking enough calcium to provide the requisite calcium content in the blood, and that the result was tetany. Inflammation about the thyroid gland would, in his opinion, undoubtedly affect the functioning of the parathyroid glands.

Professor Welsh said that the hospital records, referring to the discharge from the wound after the operation as " a thick purulent discharge," showed that some pus-producing bacteria had been introduced into the wound. The result was suppuration in the wound. The cramp in the fingers which was recorded on 20th March 1938 could be the very early development of tetany. If a piece of rubber had been left in the wound the effect would be to perpetuate the inflammation or suppurative process. Even if there were such a foreign body in the cavity, the wound could heal externally (as in fact it did). In his opinion the pus in the wound could travel anywhere in the neck, and gravity had very little influence in the neck, SO that the pus might spread upwards, that is, in the direction of the tonsil. He said that the infection "usually spreads between the various structures in the neck, each little structure, each muscle and the thyroid gland itself and a group of big important vessels in the neck are enclosed in what is called a fibrous capsule and the inflammation and suppuration usually spreads by separating these structures along their fibrous capsules, opening up the spaces between them, what we call the fascial planes. One has to imagine each little structure like a muscle or gland enclosed in a band or sheath of that fibrous tissue and the tendency of the suppuration is to spread up between these and of course to carry any foreign body with it.

Q. Would there be anything to prevent it going to the tonsil ? A. No, nothing serious to prevent it going to the tonsil.

Q. And would it necessarily on its way injure any blood vessel or muscle ? A. Not necessarily seriously injure any blood vessel or muscle. It might have taken a different course and seriously injured the blood vessel, but there is no history in this case that it did so."

This witness said that suppuration might result only in a thickening of fascial planes without any destruction of muscles, and therefore without any permanent effect in limiting the movement of the neck.

71 CLR 455

The plaintiff had given evidence that the thing which she had evacuated had something like wires sticking out of it and something like a swab in it. The defendant's advisers took a piece of tube and inserted wires and a piece of a swab in it, and the plaintiff said that it was a fair representation or a rough representation of what she had passed. This article, Exhibit "P," was 2 inches long with projecting wires extending another 1 1/2 inches. Professor Welsh would not suggest that anything like Exhibit "P" with the wires in it could travel in the body.

He gave an example of a particular form of tubercular abscess, a psoas abscess, travelling between the fascial planes (that is, the membraneous sheaths of the muscles) for a considerable distance in the body.

The opinion of Professor Welsh was that if there was a foreign body in the thyroid there would be suppuration, and the function of the parathyroids would be disorganized, with tetany as a result. He regarded the history of the plaintiff in the Quirindi Hospital as certain proof that she was suffering from true tetany due to calcium deficiency in the blood, and that her account of complete cessation of spasms after the eruption into her throat which she had described was what could be expected when the cause of the tetany had been removed. As to the probability of the sudden disappearance of tetany when the cause thereof is removed, it is of some interest to note that in the Oxford English Dictionary, sub "Tetany' there is a quotation from Allbutt's System of Medicine, (1899), p. 48 The tetany spasms ceased the day after a tapeworm had been expelled."

He also gave evidence that some two years before the trial he had examined the left tonsil of the plaintiff, and had seen a distinct scar in the tonsil which indicated that some kind of " volcanic eruption" had taken place from the tonsil which was consistent with an abscess having burst out of that tonsil. He also said that the other tonsil was not anything like the left tonsil. He said that the con- dition of the tonsil indicated to him that there had been great disorganization of its structure, and that the area in which the scar appeared was sufficient to permit the exit of a tube such as had been described.

The opinion of Professor Welsh was that the thick purulent discharge showed that there was an infected suppurating wound, that the subsequent history showed spreading suppuration in the neck which began in the region of the thyroid, and that ultimately there was an abscess in the left tonsil which burst.

71 CLR 456

The evidence of Professor Welsh was challenged in cross-examina- tion, and some of it was contradicted by evidence called for the defendant. I am, however, at present considering only whether there was evidence for the plaintiff which, if believed, would justify a verdict for her.

Dr. G. S. Thompson, another witness for the plaintiff, appears to have extensive medical and surgical knowledge, but no special qualifications with reference to the thyroid gland or the operation of thyroidectomy. He gave evidence supporting that of Professor Welsh, stating that in his opinion the history of the plaintiff's case immediately after the operation, particularly in relation to her temperature, showed that the wound was infected. The hospital records showed a long continuance of that infection, the discharge not ceasing until July 1938; the illness of the plaintiff during 1938 and 1939 was undoubtedly parathyroid tetany; if a piece of tube were left inside the wound made by the operation it could set up suppuration, as a result of which the tube could become located in an abscess in the tonsil. He gave evidence with respect to the anatomy of the neck, agreeing with witnesses for the defendant that the thyroid gland was located in a particular compartment (the visceral compartment) of the neck which was separated by fascia from a (muscular) compartment containing certain muscles and another (vascular) compartment containing blood vessels, &. The compartment containing the thyroid gland ended in its anterior upper portion at the hyoid bone and no suppuration could take a foreign body past that anterior portion of the compartment without some destruction of the infrahyoid muscles, but in the rear the compartment extended to the base of the skull. In Dr. Thompson's opinion it was possible for a piece of rubber tube to travel from the thyroid gland to the tonsil-a distance variously estimated by witnesses at from about one inch to as much as five inches (and actually measured in court in the case of the plaintiff as being two and a half inches). Reference was made in evidence to the descrip- tion in Cunningham's Text Book of Anatomy of the visceral com- partment and the statement therein as to the presence of loose areolar tissue and fat in the neck near the tonsil. The relevant references in the 7th edition are to pp. 1372, 1373, 1374. See also Jamieson, Illustrations of Regional Anatomy, figure 50, and Tonsil Surgery by R. H. Fowler, (1930), pp. 34 and 49, as to the tonsil lying in a bed of loose areolar tissue separating it from adjoining muscles. The quantity of connective tissue and fat varies with different individuals.

71 CLR 457

Dr. Thompson gave evidence that in his opinion the Quirindi Hospital records showed conclusively that the plaintiff had true tetany. He said that it was quite possible that the tube could travel from the neck to the tonsil without destroying any vital organs and that a psoas abscess provided an example of the travelling of pus in an abscess which illustrated in a comparable manner the effect of pus. He also was of opinion that the fact that the calcium content of the plaintiff's blood in October 1939 was 7.2 milligrams per cubic centimetre, instead of 10 milligrams, supported the opinion that the plaintiff was suffering from tetany brought about by some interference with the parathyroid glands. He said that he was unable to see any other explanation of the calcium deficiency. The hospital records showed that the plaintiff became unconscious on some occasions, and she gave further evidence of unconsciousness during spasms. In Dr. Thompson's opinion unconsciousness did occur in tetany in severe cases. He agreed with Professor Welsh that the wound might close notwithstanding the presence of a foreign body. He gave evidence that it was possible, if stitching were done after a tube was inserted in a wound, for a stitch to catch up the rubber SO as to hold it.

Dr. Thompson examined the plaintiff's tonsil before the first trial and gave evidence that there was a punched-out canal in the tonsil 1/2 inch in diameter and 3/4 inch long, and that this indicated that the tonsillar tissue had been killed in some way and had sloughed away. This hole was not the supra-tonsillar recess or fossa or any other of the crypts of the tonsil which appeared in a normal tonsil.

A great deal of Dr. Thompson's evidence was attacked in cross- examination, and by contradictory evidence.

The plaintiff's case was that the inner end of the tube, at or about the small hole in the tube, was accidentally caught in a stitch that the tube, possibly being somewhat perished, broke when it was being removed and that what appeared to the plaintiff, in a condition of exhaustion and distress, to be wire and a piece of swab, were pieces of catgut and a deposit of some kind within the body of the tube that the illness of the plaintiff after the operation was explainable by the presence of the tube in tissues of the neck affected by suppura- tion, resulting in an abscess which ulcerated through the tonsil, the piece of tube having moved in the affected tissues and along fascial planes without permanently destroying any vital organs that Dr. O'Hanlon and the defendant treated the plaintiff for true tetany and that she suffered from true tetany which could be explained only by injury of some kind to the parathyroid glands that suppuration within and about the capsule of the thyroid gland would produce

71 CLR 458

such injury; that such suppuration was established by hospital records and other evidence; that the sudden cessation of the tetany spasms was explainable by the sudden removal of the cause by the bursting of the abscess in the tonsil and the extrusion of the piece of tube; and that the calcium deficiency discovered in C.J. the blood in October 1939 strongly supported this case.

I have already referred to authorities which establish the pro- position that, wherever there is conflicting evidence, it is for the jury to determine what evidence they will believe, and that it is not the function of a judge, either at the trial, or upon an application for a new trial, or upon an application for a verdict to be entered against the party on whom the onus of proof lies, to act upon his own opinion that certain witnesses should be believed rather than other witnesses. If I felt at liberty to act upon my own opinion of the evidence I would regard the evidence for the defendant as over- whelming the evidence for the plaintiff. There are obvious improba- bilities of high degree in the plaintiff's statement as to what happened when the tube was extracted, and upon other points the evidence of the plaintiff is plainly open to serious attack. (See the analysis of evidence upon the first trial 1 and upon the last trial 2.) Further, the qualifications of the medical witnesses for the defendant are much superior to those of the medical witnesses for the plaintiff. But these facts affect the weight and not the existence of the evidence for the plaintiff. It cannot, in my opinion, be said that if the evidence for the plaintiff which I have summarized was believed there was no evidence to support a verdict for the plaintiff. Accord- ingly, in my opinion, it cannot be held that, as a matter of law, the defendant is entitled to a verdict in this case.

It may be added that the evidence for the defendant provides instances of doctors differing and affords support for the plaintiff's case in certain particulars. I mention some examples. There was evidence by a witness for the defendant that there was a possibility though only " a bare possibility "-of a tube being caught by an internal stitch and that a surgeon should guard against such a possibility. In general the defendant's witnesses (and the defendant himself) agreed that suppuration, and infection, as well as trauma, could interfere with the effective operation of the parathyroid glands and SO produce tetany. One of his witnesses, however, was of a contrary opinion. The defendant's witnesses in general, though conceding that pus might travel almost anywhere, denied the possibility of a foreign body travelling from the thyroid gland to the

1(1942) 42 S.R. (N.S.W.) 130 ; 59 2(1944) 44 S.R. (N.S.W.) 468 ; 61 71 CLR 459

tonsil without serious destruction of organs, of which they saw no signs. One witness, however, said that, though highly improbable, it was remote possibility," and another admitted that it was "a very vague possibility." Some evidence for the defendant was carefully limited to what was described as anatomical possibility -apparently as distinguished from pathological possibility and the plaintiff was suffering from a pathological condition. Some of the defendant's witnesses were of opinion that the illness of the plaintiff after the operation was in the first place true parathyroid tetany, but that after about June the condition was not true tetany, but was a condition of hysteria, simulating tetany. It was not disputed that the plaintiff was in fact treated as for true tetany and not as for hysteria. The defendant's witnesses differed to some extent in selecting a point of time at which the true tetany ceased and the hysteria commenced. One witness for the defendant, however, was of opinion that the witness never suffered from true tetany, but was at all relevant times a victim of hysteria. I think I am right in saying that there was no evidence that hysteria would affect the calcium content of the blood. There was much evidence that the plaintiff did sometimes lose consciousness. The defendant's wit- nesses gave evidence that tetany due to parathyroid injury was marked by the feature that the patient did not lose consciousness during spasms, while during hysteria consciousness might be lost on occasions. But these witnesses had to agree that a considerable number of leading authorities expressly stated, as Dr. Thompson had done, that in severe spasms of true tetany consciousness might be lost. Some of the witnesses for the defendant did not agree with statements or diagrams contained in what were admitted to be leading works of authority. I refer to these divergences of opinion as matters which a jury was entitled to take into account, though, as

I have already said, if I had to determine the case according to my own opinion, I would have no doubt whatever in deciding for the defendant. It is, however, as I have already said, most important that a judge should not usurp the function of the jury, even if he regards the evidence against the verdict as most cogent, and, indeed, overwhelming in character.

If then, there was evidence upon which a jury might reasonably find for the plaintiff, it is immaterial (in determining whether a verdict should be entered for the defendant) that the jury answered in favour of the plaintiff the specific question which was asked, even though there might not be evidence to support the answer to that specific question. If the verdict had been against the plaintiff, then the plaintiff could not have claimed a new trial on the ground that a

71 CLR 460

question to which she had not objected had been submitted to the jury. But even if there were no evidence to support the answer given by the jury to the question, it does not follow that a verdict should be entered for the defendant. The fact that there was no evidence to support that particular answer does not show that the Latham C.J. defendant is entitled to a verdict as a matter of law.

But it is unnecessary for me to base my decision in this case upon the view which I have just stated, because, in my opinion, there was evidence which, if believed by the jury, can reasonably support the answer given by the jury to the question submitted to them by the trial judge. The answer to this question shows that the jury substantially believed the story of the plaintiff, however improbable that story may appear to be. The description of the piece of rubber tube is based upon the drawing made by the plaintiff, which is a remarkable feature of the case. That drawing shows what looks like a rubber tube with a "V" cut in it, the tube being torn across the "V" cut, with lines projecting which the plaintiff says looked like wire, "but of course were not wire." There was evidence that it was the practice to make a cut in the inner or distal portion of a drainage tube to facilitate drainage. The finding of the jury may legitimately be read, not as stating that there was actually wire in the tube or an actual swab in the tube, but that there projected from the tube some material which looked like wire and which looked like a swab. The jury, believing the plaintiff, only describes what the plaintiff said she believed she saw. As to the size of the tube, much evidence was given to the effect that the whole of a tube would not be longer than 2 inches, but there was also evidence that the length of tubes used varied from time to time, as would naturally be expected, and an illustration of a thyroidec- tomy operation in a book used by the defendant's witnesses Binnie's Treatise on Regional Surgery, (1917), vol. I., p. 497- shows a tube in position, the visible projecting part of which appears to be considerably over an inch in length. Some evidence for the defendant admits that a tube used in a modern thyroidectomy operation may be as long as 2g inches. The evidence for the defen- dant as a whole is that tubes used in such operations are practically never longer than 2 inches. But this question of fact was a matter for the jury, and the answer of the jury is "somewhat less than 2 inches." Thus, in my opinion, there was evidence to support the answer of the jury, though I should not have given that answer myself.

What precisely Griffith C.J. meant in Heydon v. Lillis 3 by the expression perverse verdict " in the passage to which my brother Starke has referred, I am not sure. Sometimes it is used to describe a disregard of a direction from the judge. Sometimes it refers to a finding contrary to that which the facts of the case legally demand. But I think it always means something more than a verdict against the weight of the evidence (Saunders v. Davies 4, per Pollock C.B.; Jones v. Spencer 5, per Lord Morris; McInerney v. Clareman, per Kenny J. 6 ) ). In any case, the meaning and effect of the terms used in S. 7 of the Supreme Court Procedure Act are too clear and well settled to be affected by the choice of expression of the late Chief Justice.

For the reasons I have given I am of opinion that the course taken by the majority of the Supreme Court in entering a verdict for the defendant ought not to have been followed.

There remains what to my mind is the more difficult question, namely whether yet another new trial should be ordered.

In Mechanical and General Inventions Co. Ltd. v. Austin 7, Lord Wright said :- For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury: that would be quite wrong. Much more is

1(1924) V.L.R. 515, at p. 532 ; 30 2(1931) 45 C.L.R., at pp. 373, 379, 3(1907) 4 C.L.R. 1223. 4(1852) 16 Jur. 481. A.L.R. 375, at pp. 376 et seq. 5(1897) 77 L.T. 536, at p. 538. 6(1903) 2 I.R. 347, at p. 369. 7(1935) A.C. 346. 71 CLR 499

necessary in order to justify the setting aside of a jury's verdict where there is some evidence to support it. No doubt the test can be roughly described as being whether the verdict of the jury was reasonable, but what is meant by reasonable in this connection, must be carefully defined." And again he said :- The question in truth is not whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty. An appellate court must always be on guard against the tendency to set aside a verdict because the court feels it would have come to a different conclusion 1.

The test propounded by Lord Selborne in Metropolitan Railway Co. v. Wright 2 was approved by the Privy Council in Cox V. English, Scottish and Australian Bank 3, viz. There must be such a preponderance of evidence, assuming there is evidence on both sides to go to the jury, as to make unreasonable, and almost perverse, that the jury when instructed and assisted properly by the judge should return such a verdict" 4. An expression repeatedly used by courts is 'overwhelming preponderance."

In Place v. Searle 5, Scrutton L.J. said An enormously strong case is needed before the Court of Appeal can say that though there is evidence given by a witness it cannot reasonably be believed by the jury. Unless we get such a case as that, we must assume, in considering the question whether there is any evidence on which the jury could reasonably find a verdict for the plaintiff, that they accepted the evidence in favour of the plaintiff and disbelieved the evidence given in favour of the defendant," scil. where such disbelief is necessary to the conclusion.

A distinction has always existed between cases on the one hand in which the verdict is vitiated by some legal error, such as a material misdirection or misreception of evidence, or was perverse in the sense that the jury disregarded a judge's direction and, on the other hand, cases where, on conflicting evidence, a verdict is found which is said to be against the weight of the evidence. In the former case, apart from the modern rule about substantial miscarriage, a new trial was granted ex debito justitiae. In the latter it was a matter depending upon a more general discretion.

According to Mr. W. M. Best in a note in Jurist, vol. 2 (1856), p. 167 :- Where a jury disregard a presumption of mixed law and fact, and a fortiori where they find in a particular way on a mere question of conflicting testimony, all the authorities agree

1(1935) A.C., at pp. 373, 374, 375. 2(1886) 11 App. Cas. 152. 3(1905) A.C. 168, at p. 170. 4(1886) 11 App. Cas., at p. 153. 5(1932) 2 K.B. 497, at p. 515. 71 CLR 500

that the granting of a new trial is only matter for the discre- tion of the courts, which are moreover very cautious in the exercise of this power." For this reason the fact that a new trial has already been had with a like result to the first has been thought to be a relevant and an important consideration.

In Goodwin v. Gibbons 1, Lord Mansfield denied, however, that there was any general rule against granting a third trial, saying: "A new trial must depend upon answering the ends of justice." But the fact that there have been two concurring verdicts must carry weight. In Foster v. Steele 2, Tindall C.J. and Park J. considered that the fact that the second trial produced the same result was decisive, whilst Vaughan and Coltman JJ. said that they would try the result of a third, " but if the third were against the defendant, then the proceedings should end.

In a case of misdirection a majority of this Court ordered a third trial, stating the test thus :- To induce a court to order a third trial, the party against whom the verdict has passed must establish that the second trial took a course clearly prejudicial to him, and SO erroneous that the verdict cannot justly be allowed to stand (Australasian Brokerage Ltd. v. Australian and New Zealand Banking Corporation Ltd. 3 ).

It is consequently clear that the defendant assumes a heavy burden in undertaking to make out a case for a new trial. He seeks to strengthen the foundation provided by the facts of the case by two additional grounds of complaint. He says in the first place that the jury should have been directed that a higher measure or standard of persuasion is required by the law in the case of a charge of neglect causing bodily harm. Davidson J. has shown that this complaint is ill founded. Indeed, even if the cause of action here amounted to an offence under S. 54 of the Crimes Act 1900, our decisions in Helton v. Allen 4 and Briginshaw v. Briginshaw 5 show that the contention cannot be supported. See too Piggott V. Piggott 6. The solid body of authority against introducing the criminal standard of persuasion into civil causes cannot be shaken by the unconsidered statement of Lord Atkin in the case from Allahabad, the report of which I have had the advantage of reading. Similar statements will be found elsewhere, and I think they are traceable to article 94 of Sir Fitzjames Stephen's Digest of Evidence. Unfortunately the influence of J. H. Wigmore's formidable learning and reasoning has not been felt as it should in this and other matters.

1(1767) 4 Burr. 2108 [98 E.R. 100]. 2(1837) 3 Bing. N.C. 892 [132 E.R. 3(1934) 52 C.L.R. 430, at p. 442. 4(1940) 63 C.L.R. 691. 5(1938) 60 C.L.R. 336. 6(1938) 61 C.L.R. 378, at p. 415. 71 CLR 501

In the next place, the defendant says that the conduct of the case by the plaintiff's counsel was calculated to lead the jury to decide the case on false issues, and generally to distract them from their true duty.

Without denying that the lengths to which counsel went were such as to require weighing with the other elements in the case, it is, I think, necessary to remember that he was entitled to put strongly to the jury the relative positions occupied by his client and by the defendant, in obtaining the assistance of the medical profession; and, in the next place, that in the result the jury made a finding very carefully, indeed significantly framed, upon the exact issue of fact upon which the case depended-a finding expressed in a way which made it clear that their minds were addressed to the very issue.

After all, the fundamental question in the case is whether the evidence opposed to the plaintiff's case is SO overwhelming that the court should again intervene to destroy the verdict as not only wrong, but as completely unreasonable and unjust.

In determining this question perhaps the most important considera- tion is that faith in the honesty of the plaintiff must be ascribed to the jury and an inability to believe that the woman they saw and heard was telling a purely imaginary story.

No doubt they could not reach that view without first weighing against it the very substantial case made by the defendant. But once belief in her as a witness and acceptance of the veracity of the witnesses called on her behalf is assumed, the evidence for the defence must wear a very different complexion. By that I mean that it must also be taken that the more valid criticisms of and contentions made concerning that evidence were accepted. On those hypotheses the verdict begins to wear much less an unreasonable aspect. The question of credibility and the estimate of the character and relia- bility of the witnesses is, of course, essentially a matter for the jury.

But their finding gives to the tubing a size, "somewhat less than two inches," and that size is really very considerable in relation to the tissues involved. From the beginning, I have been struck with this statement and the reference to the material that looked like wire. If the jury had supposed that the plaintiff had been quite mistaken in her estimate of size, their finding would have gained strength. But, as it is, after closely considering the plaintiff's evidence and the medical and other evidence called by her, I think that the matter is within the province of the jury.

There is, I think, when it is separated out, much evidence support- ing the jury's verdict. The case is one in which the strong feeling

71 CLR 502

that the jury's verdict is mistaken, based as it is on a natural incredulity concerning the plaintiff's story, and on the cogency of the countervailing evidence, makes it difficult to appreciate the amount of evidence really available to support the jury's finding. In such circumstances the decision rests with the jury, and if the result is unjust theirs is the responsibility.

On the whole case I think that the Court ought not to interfere and grant another new trial. I am therefore of opinion that the appeal should be allowed, the order of the Supreme Court discharged and the verdict restored.

McTIERNAN J. At the last trial of this action a jury again returned a verdict for the plaintiff. The Supreme Court in Banco set aside the verdict and ordered that a verdict be entered for the defendant. This appeal is against the whole of the Court's order.

The Supreme Court in Banco may, under S. 7 of the Supreme Court Procedure Act 1900, in any action order that a verdict be entered for either the plaintiff or the defendant; it is not a condition of this statutory power, as it is of the common law power to enter a verdict, that leave was reserved at the trial to do SO (Heydon V. Lillis 1 ). Under S. 7 the condition is that in the opinion of the Court the party for whom it enters a verdict is "upon the evidence entitled as a matter of law " to a verdict in the action. Instances of the exercise of this power are Balmain New Ferry Co. Ltd. V. Robertson 2; Heydon v. Lillis (1); Shepherd v. Felt &Textiles of Australia Ltd. 3. In the last-mentioned case this Court approved an order of the Supreme Court for a verdict to be entered in the other cases, this Court decided that the Supreme Court ought on the evidence to have entered verdicts. In the present case the defendant is as a matter of law entitled to a verdict if there is no evidence on which the jury could reasonably return the verdict for the plaintiff.

There is a distinction between the power of the court in the case where there is insufficient evidence to justify the verdict and the case where the verdict is against the weight of evidence. In the latter case the court may set aside the verdict and grant a new trial, but it may not order a verdict to be entered the Supreme Court of New South Wales has no power to decide facts in an action tried with a jury; hence in this case this Court has not the power to decide facts: See Hocking v. Bell 4, De Gioia v. Darling Island

1(1907) 4 C.L.R. 1223, 2(1906) 4 C.L.R. 379. 3(1931) 45 C.L.R. 359. 4(1943) 43 S.R. (N.S.W.) 154 ; 60 71 CLR 503

Stevedoring &Lighterage Co. Ltd. 1 and Banbury v. Bank of Mon- treal 2. In that case Lord Atkinson observed: "No doubt in cases where the verdict is set aside as against the weight of evidence there will be evidence on both sides, but now that the scintilla doctrine has been abandoned the tasks of the court in the two classes of cases closely approach each other" 3. The scintilla doctrine was abandoned in Ryder v. Wombwell 4.

Davidson and Halse Rogers JJ. were of the opinion that there is no evidence on which a jury may reasonably find that the defen- dant left in the surgical wound a piece of the drainage tube that had been inserted in it, and for that reason the verdict could not stand. Roper J. was of the opinion that the verdict ought to be set aside on the ground that it is against the weight of evidence and that a new trial be granted. After considering all the evidence I have come to the conclusion that the opinion of the majority is right and that the order of the Court should be affirmed. But if it were not correct to hold that there is no evidence that ought or could reasonably satisfy a jury that the defendant left a piece of the drainage tube in the wound I should agree with Roper J. rather than restore the verdict. If I thought that, leaving out of account the contrary evidence, there is sufficient evidence prima facie to support the verdict, nevertheless I should reach the conclusion that, on the whole, the contrary evidence in point of probability SO greatly preponderates against the verdict that it is an unreasonable verdict and that the jury could not have performed their duty judicially and returned the verdict (Metropolitan Railway Co. v. Wright 5; Mechanical and General Inventions Co. Ltd. v. Austin 6 Bright v. Eynon 7

It is an undisputed fact that no piece of drainage tube was found in any part of the plaintiff's body or taken from it. Notwithstanding the circumstantial story which the plaintiff gave of the breaking of the drainage tube, it would not be reasonable for the jury to infer that the defendant left a piece of tube in the surgical wound unless they were satisfied that the object which, according to her evidence, "burst into the left side of her face" was part of the drainage tube which had been inserted in the surgical wound, and that such object had moved out of the wound inside the neck until it emptied into the pharynx. The story seems to me to be a glaring improbability. Upon the evidence it was unreasonable for the jury to attach any credit or weight to it. The reasons for this conclusion depend upon the discrepancies

1(1941) 42 S.R. (N.S.W.), at p. 5 2(1918) A.C., at p. 664. 3(1918) A.C., at p. 677. 4(1868) L.R. 4 Ex. 32. 5(1886) 11 App. Cas. 152. 6(1935) A.C., at pp. 369, 374. 7(1757) 1 Burr., at p. 395 [97 E.R., 71 CLR 504

between the object which she said she swallowed and evacuated and the part of any tube which, upon the whole of the evidence on the kind of tube inserted into the wound and of stitching and swabs used, could have been left in the wound, if the defendant had broken the tube and failed to remove the portion left in the wound. The plaintiff said in evidence that she examined the object evacuated, but lost it and then made a sketch which is in evidence. Her descrip- tion in the evidence of the object is :-"-" would say a soft greyish piece of tube like rubber which had been in water for some time. It was swollen. It was not smooth like a new piece of tube. There was a straight cut at one end. It was split up within half an inch of the end and it had in that opening a swab which I thought was a piece of marine sponge with a blackish looking stuff. It had come from the sponge and it looked like black wire but when I bent it back it would fly back straight. It was like horsehair, and it would fly back quickly straight. It looked like wire to me but it could not have been wire." The special finding of the jury was We find that the defendant left in the site of the operation a piece of rubber tube of a length somewhat less than two inches, cut off straight at one end and torn at the other, part of which tube had been cut down one side and from which protruded some material which looked like wire and a swab from the torn end of the tube."

The plaintiff's case is that the whole thing, that is, tube, swab and the protruding material, was left by the defendant in the wound. It is not suggested that the defendant put the swab into the tube as an element belonging to it. Such a thing would defeat the purpose of the tube and the suggestion, if made, could not possibly be supported by the evidence. The jury does not specify what the " blackish looking stuff" in the plaintiff's description is. They say that it was some material which looked like wire." The suggestion made to explain the swab and the protruding material is that a swab was caught by the stitches made at the time of the operation and that the protruding material is gut with which the stitching was done. The only evidence given in the case about the swabs used during the operation and the way in which they were used, and also about the method in which the stitches were made, provides no reasonable basis for any inference along the lines of the suggestion which is made. There is, in my opinion, no evidence upon which the jury could reasonably find that a swab with gut or any other material protruding from it was attached to the drainage tube. which the defendant inserted in the surgical wound at the time of insertion or became attached to it afterwards. The evidence does not support the conclusion that the object described by the plaintiff, or by the

71 CLR 505

jury in their special finding, was part of or comprised in that drainage tube.

The result is that the jury was left without any explanation, which could be reasonably supported by the evidence, as to what became of the piece of drainage tube which would have been left in the wound if the defendant had broken the tube admittedly no piece of tube was found in her neck or taken from it. In these circum- stances the jury could not reasonably accept her story about the breaking of the tube or infer from it that the defendant left a piece of the drainage tube in the wound.

Assuming, however, that the above-mentioned object was left by the defendant in the surgical wound, it was necessary for the plaintiff to prove that the object moved upwards, and ultimately entered the pharynx. The plaintiff called expert witnesses to prove that the object did SO. For the purpose of their evidence they assumed that the defendant left part of a drainage tube in the wound, but it does not seem that they were prepared to assume that what was left in the wound had the material like wire protruding from it but whatever its characteristics, they also assumed, for the purpose of their evidence, that her story that she swallowed a piece of tube eighteen months afterwards was also correct. If the assump- tion is made that the thing left in the wound is the identical thing which the plaintiff said that she swallowed, the hypothesis which, upon the evidence of these witnesses the jury were invited to accept, was that pus accumulated in the thyroid capsule where the internal end of the tube was, that is to say in the space which had been occupied by the gland before the thyroidectomy that instead of rupturing outwards and re-opening the incision made in the neck, the abscess, consisting of the piece of tube and pus, ruptured the thyroid capsule at a point contiguous to fascial spaces leading ultimately to the point at which the pharynx was penetrated; that it was carried upwards in pus through those spaces until it turned to the right and went through the pharyngeal wall. According to these witnesses the condition of the left tonsil showed that a tube went through the tonsil into the mouth. The hypothesis, therefore, requires that the foreign body penetrated the pharyngeal wall at the point opposite the left tonsil.

The pictures and drawings which were put in evidence repre- senting the anatomy of the neck, show the arrangement of fasciae muscles and other anatomical parts through which the object in question must have passed if it went from the thyroid capsule through the tonsil into the pharynx. Considering the size, shape and other characteristics of the object which is supposed to have

71 CLR 506

moved through these parts, there are prima facie great difficulties in accepting the hypothesis that it did travel through them. The arrangement of muscles and fasciae establish the fact that there are real obstacles. Professor Welsh does not indicate any specific course by which the pus could have carried the tube from the thyroid capsule into the mouth through the tonsil. He accepted Professor Shellshear's evidence about the anatomy of the neck. In my opinion it would not be reasonable for the jury to find on Professor Welsh's evidence that the object which the plaintiff swallowed had come from the thyroid cavity unless he pointed out how it could overcome the obstacles mentioned in Professor Shell- shear's evidence.

According to this witness there are anatomical obstacles in the region of the thyroid capsule and at the level of the hyoid bone; and the arrangement of muscles forming the pharyngeal wall in the region of the tonsil was another obstacle. Dr. Thompson gave an account of the course by which, in his opinion, the object about which the plaintiff gave evidence moved from the thyroid capsule into her mouth. His evidence does not agree with the evidence which Professor Shellshear gave about the anatomy of the neck and, as I have said, the evidence of Professor Shellshear was accepted by the plaintiff's only other expert witness, Professor Welsh. The jury could not possibly get as adequate an account of the anatomy of the neck from Dr. Thompson's evidence as from Professor Shellshear's evidence or the pictures and drawings which are in evidence. The jury could not possibly have any reasonable justification for declining to give credit and weight to the evidence of Professor Shellshear. It may be observed that Dr. Thompson's evidence is that the tube penetrated the pharynx. It is not clear that he said precisely that it went through the tonsil. No reliance was placed on any medical condition at any other place than the tonsil to support the hypothesis that the foreign object came into the mouth. The evidence of the expert witnesses called by the defendant, read from the transcript, is a refutation of the evidence of Professor Welsh and Dr. Thompson. But I decide the matter not on the weight of the evidence on the defendant's side, but on the question of the sufficiency of the evi- dence on the plaintiff's side, that is as a matter of law. The nature and arrangement of the many parts of which the neck consists are facts established by the pictures and drawings in the evidence. Having regard to these facts, I think that the jury could not reason- ably find on the evidence which Professor Welsh and Dr. Thompson gave in this case, that the object which the plaintiff says that she

71 CLR 507

swallowed came from the thyroid cavity, up the neck, through the left tonsil and into the mouth.

There is the further evidence about the condition of the plaintiff's tonsil, the symptoms of tetany, and her illness. I do not think that this evidence adds anything to support the proof of the issue of negligence to which the trial was confined. It adds nothing because there is no evidence on which the jury could reasonably find that the foreign body which the plaintiff said came out of her neck had been left in her neck by the defendant.

As I have shown, the foreign body, which the plaintiff said she swallowed and evacuated, was a piece of rubber tube characterized by the addition to it of a swab and material which looked like wire.

The evidence is insufficient to establish that in the tube which the defendant inserted in the wound there was a swab either with or without any such material protruding from it. The jury, therefore, could not reasonably find that the defendant left in the wound the foreign body described by the plaintiff in her evidence or by the jury in their special finding. The result is that there is no evidence on which the jury could properly make the special finding or return a verdict for the plaintiff on the issue in the action as defined by the plaintiff's particulars of the negligence which she alleged.

In my opinion the appeal should be dismissed.

Appeal dismissed with costs. Solicitors for the appellant, Thomas &Hague, Quirindi, by Wilson &Clapin.

Solicitors for the respondent, A. S. Boulton, Lane, Rex &Co.