Hontin, C.K. v Utley, G

Re: CLAIRE KATHLEEN HINTON
And: GRAHAM UTLEY
No. ACT G57 of 1991
FED No. 453
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Sheppard(1) and Neaves(1) JJ.

CATCHWORDS

Negligence - vicarious liability of radiologist for acts of employed radiographer performing mammography - placing of wooden cassette case under plaintiff's body - subsequent contact of plaintiff's hip with case causing injury to plaintiff's spine - radiographer found to have acted in accordance with standard practice - practice found to be reasonable - whether radiographer's conduct negligent.

HEARING

CANBERRA

#DATE 26:6:1992

Counsel for the Appellant: Mr D.F. Rofe QC and Mr B. Hull

Solicitors for the Appellant: Nelson and Co.

Counsel for the Respondent: Mr R.E. Williams QC and Mr G.J. Richardson

Solicitors for the Respondent: Minter Ellison

ORDER

THE COURT ORDERS THAT:-

1. The appeal be dismissed.

2. The appellant pay to the respondent his costs of

the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) in which the appellant seeks the setting aside of an order made by the Supreme Court on 20 August 1991 dismissing an action brought by her for negligence. The facts, although in dispute at the hearing, are not now in contest. For the purposes of the appeal counsel for the appellant was content to rely upon the findings of primary fact made by the trial Judge. The account of the evidence which follows is taken from his Honour's judgment. Some of that account is of evidence given by the appellant which his Honour did not ultimately accept. But it is necessary for us to refer to it so that his Honour's findings may be seen in their context.

On 16 April 1980 the appellant was referred to the respondent for a mammogram. The respondent carries on practice as a radiologist. The appellant alleged that, as a consequence of the procedure, she suffered a subluxation or partial dislocation of a facet joint slightly to the left of the L5/S1 junction. His Honour found that "an injury of that nature" occurred during the mammogram procedure. But he said that it was difficult to decide how it occurred. He added that the incident during which it was sustained "was so unremarkable" that the appellant made no mention of it to the radiographer when it occurred or in conversation with the respondent prior to leaving his rooms.
His Honour said that the mammogram was performed by means of a technique known as Xeroradiography. The technique which was involved was introduced into Australia in about 1976 and ceased to be used in about 1986. The reason for its cessation was because of the perceived risks associated with the radioactivity of the materials used.
Xeroradiography avoided the use of X-ray film. Instead a cassette was substituted. The cassette was a sensitive plate easily susceptible to damage. In order to protect it during the carrying out of a procedure, it was the practice to place it in a cassette case. The cassette case measured about 46 cms. long by 43 cms. wide and was 3 cms. thick.
His Honour said that it was not alleged that the standard procedure was inherently dangerous or that it gave rise to a foreseeable risk of injury which required some particular step to be taken to avoid or minimise such a risk. But there was one aspect of the procedure which was carried out which was alleged by the appellant to have been a departure from the standard practice. That was the failure of the radiographer carrying out the procedure to avoid the cassette case coming into contact with the appellant's hip. The respondent disputed that any departure from standard practice had occurred just because there was contact between the hip and the cassette case. The question whether or not there was such a departure was by no means the only issue before his Honour, but it is the substantial issue which this appeal raises for decision. There is also a question whether his Honour accorded sufficient significance to the fact that the respondent was not called to give evidence.
The evidence of what happened came only from the appellant. The other person present was the radiographer, a Mrs Morris. Mrs Morris gave evidence but said that she had no memory of the visit of the appellant on 16 April 1980. His Honour said that it would be unrealistic to expect her to have any such memory. There was no challenge to his conclusion in this regard.
His Honour summarised the appellant's account of what occurred. At the request of Mrs Morris she removed her upper garments. She was asked to sit on a table which was approximately two metres long and 67.5 cms. wide. It was about 78.5 cms. high. There was an issue at the trial whether the table was covered by a mattress. His Honour found that it was. That was not a finding which was the subject of any substantial challenge before us.
Part of the mammography equipment was mounted on an arm fixed to an upright in a track running the length of the table. When the patient was in an appropriate position, the arm could be brought down over the particular part of the body subject to examination. Whilst the appellant was still seated on the table, cones were brought down over each of her breasts in turn and the mammogram was taken. The appellant was then required to adopt what was called a medio-lateral position. She lay first on her left side for the purpose of mammography of her left breast. That was performed without incident. After the mammogram of the left breast had been performed, she was asked to roll over to her right side. She had her right leg extended, her head on a pillow and her right upper arm at a right angle to her shoulder with her forearm on the pillow beside her face. Mrs Morris then took the appellant's left leg and placed it in such a position that the upper part of it was at right angles to her (the appellant's) body and the lower part parallel with her (the appellant's) body. The knee was touching the surface of the table. The appellant said that, when Mrs Morris was positioning the appellant's left leg, she felt strain in the lumbar area slightly to the left of the junction of her spine and pelvis. She made no complaint about this at the time.
Mrs Morris then asked the appellant to hold her left breast with her left hand in a position to allow the cone to be lowered on to the right breast. Mrs Morris brought the appellant's right arm back on to the pillow beside her face and placed pieces of foam under the right breast and beside the appellant's back. Mrs Morris took up the cassette case and said to the appellant, "Now lift your body up." The appellant said that she raised that part of the right side of her body which was in contact with the surface of the table by pushing down hard on her right shoulder. She described this movement as "arching" her body. Mrs Morris pushed the cassette case under the appellant's body so that one end was more or less under the appellant's shoulder and the other end in the region of the appellant's hip. Mrs Morris manoeuvred the case slightly and then asked the appellant to lower her body. The appellant was unable to control the speed and degree of lowering and she felt her hip bone come into contact with the edge of the cassette case. She experienced what she described as "sharp momentary pain" and also said that there was a "sharp wrench" to her lumbar spine.
It should be emphasised that the account of events given in the last paragraph was the subject of substantial dispute at the trial. His Honour did not accept the account as being altogether accurate.
Mrs Morris brought the cone down against the appellant's right breast, placed the cassette in the cassette case and performed the mammogram. The appellant was then asked to lie on her back. Mrs Morris left the room and a short time later returned with the respondent. The respondent had a short conversation with the appellant about the results of the mammogram. Mrs Morris told the appellant that she could come down from the table. As the appellant, in a sitting position, stretched her feet downwards towards the floor, she again felt pain in the same lumbar area but insufficient to give her any concern. She noticed a similar pain when she sat in her car. Later in the afternoon, however, when she went to get up from a chair, she found that she could not stand upright and felt "excruciating pain" in the same lumbar area. She needed assistance to go to bed. She continued to have pain and disability for some years. Although his Honour thought that her claim in negligence should fail, he went on to assess damages, reaching the conclusion that, had she been entitled to succeed, the appellant would have been entitled to judgment in the sum of $60,000. Subject to a question concerning interest, there is no issue between the parties that his Honour's assessment was a correct assessment of the amount which the appellant should recover if she be entitled to succeed.
His Honour referred to the detail of Mrs Morris' evidence which principally consisted of an account of her usual practice in performing a mammography at the relevant time.
His Honour then drew some conclusions. There was an issue before him whether any incident such as is complained of by the appellant occurred at all. After referring to a number of matters his Honour expressed himself as satisfied that such an incident had occurred. His Honour went on to make findings about the way in which the appellant came to be injured. He said:-

"There remains the issue whether Mrs Morris placed the cassette under the body of the plaintiff or whether the cassette was on the table and the plaintiff rolled herself on to it and the issue whether Mrs Morris asked the plaintiff to arch her back in the way described by the plaintiff in her evidence.

........ ........ ........ ........ ........ ........ ... In all the circumstances, although it is likely that Mrs Morris said something to the plaintiff about adjusting her body so that the cassette case would be in a correct position for the mammogram, I am not convinced that she did this in terms so dramatic as those stated by the plaintiff, or that in particular the plaintiff was required to 'arch' her body as described. It is more likely, in my view, that Mrs Morris asked her to do something which might more appropriately be described as a wriggle. I do not exclude the possibility that the plaintiff may have brought her body up in an arch-like fashion, but I am not convinced that she was required to do so by Mrs Morris in the sense that the plaintiff was asked to do other than what was commonly done according to a safe and standard procedure. Furthermore, the medical evidence, in my view, leads to the conclusion that it was not the sudden impact of the plaintiff's hip on the edge of the cassette case which constituted the injury. Rather, it was the involuntary reaction of the plaintiff's muscular system to the sudden sensation of impact of the hip bone with the edge of the cassette case which constituted the 'sharp wrench' that she described. The term 'wrench' was taken up by her counsel and used repeatedly in the case thereafter. The plaintiff's hip was not exposed, although it is not clear what exactly she was wearing on the lower half of her body. She said that she was wearing an x-ray gown. In any event, there was no bruising to her hip. Although some of the medical evidence suggested that the injury was caused by the downward movement of the hip bone being suddenly arrested whilst the torso continued in a downward movement, I think the more likely explanation of the subluxation was an unguarded movement in the nature of an unexpectd and twisting reaction to the sudden contact of the hip with the cassette box. The injury was not, in my view, a frank trauma to the hip, and certainly not a trauma to the lumbar spine. I think that the description 'sharp wrench' is likely to be an exaggeration, not deliberate but an exaggeration nonetheless."

His Honour went on to say that the findings of fact which he had made led to what was really the ultimate question, namely, whether Mrs Morris was negligent in placing the appellant or allowing the appellant to place herself in such a position that her hip was likely to come into sudden contact with the edge of the cassette case. His Honour said that the appellant was a short woman about 1.56 metres (about 5 feet 1 inch) tall. He said that the dimensions of the cassette case were such that it would fit under a taller person comfortably between the waist and the shoulder but, for a person as short as the appellant, the cassette case would provide a comfortable position only if that end of the cassette case closer to the shoulder projected further towards the shoulder than in the case of a taller person. His Honour thought that it would have been possible, in the case of a person of the appellant's size, to have had the cassette in such a position that it did not impinge upon the hip bone. His Honour concluded that there was thus a reasonably practicable alternative which would have avoided the risk of injury to the appellant.
He then asked himself the question whether what Mrs Morris did was unreasonable. His Honour thought there was no departure from standard practice and that, whilst standard practice did not of itself "guarantee reasonableness", it was a strong indication of it. He said that it had not been demonstrated that there was anything unreasonable about the standard practice and continued:-

"With the wisdom of hindsight, it is possible to say that Mrs Morris should have been astute to ensure that the cassette was not placed in such a position that the plaintiff's hip bone was likely to be brought into contact with it suddenly with the likely result then that the plaintiff might suffer some injury not from the impact of the hip bone with the cassette case, but from the reaction of her spine to such an unexpected or awkward event. There was evidence from many sources that no one had, or indeed has, ever been injured in a mammogram at the defendant's rooms. The conduct of the person alleged to have been negligent has to be measured against the remoteness of the risk."

His Honour made the following comments:-
(a) The risk of some physical injury during the course of the

procedure was not so remote that a duty of care to prevent injury, or at least minimise the risk of injury, to the patient should be regarded as not arising.

(b) The standard of care was that which was reasonable in the

circumstances.

(c) Although the appellant felt discomfort when Mrs Morris

placed the appellant's upper left leg at right angles with her body, she made no complaint at that time. If she had done, she may have put Mrs Morris on guard that there might be a greater risk of injury during later stages of the procedure.

(d) There was no allegation that Mrs Morris was negligent in

the way she positioned the appellant's left leg.

(e) He was not convinced that there was any want of reasonable

care on the part of Mrs Morris in doing what she did in relation to the cassette case.

(f) The absence of the respondent from the witness box did not

assist the appellant. Although the respondent had some conversations with the appellant at later times, his Honour thought that nothing said by the respondent, according to the account of the conversations given by the appellant, constituted an admission.

(g) He was not satisfied that the appellant had discharged the

onus of proof that the respondent's employee failed to take reasonable care for the appellant's safety.

The principal submissions made by counsel for the appellant were:-
(a) Mrs Morris had departed from standard practice in that she

did not ensure that the cassette case did not rest against the appellant's hip. Counsel said that his Honour did not set out the evidence upon which he found the standard practice nor did he state what the standard practice was.

(b) On the evidence, standard practice required the radiographer

to position the cassette case and the appellant so that the appellant's hip bone did not come into contact with the edge of the case. Special care should be taken in the case of a patient who was short or short-waisted as the appellant was.

(c) His Honour placed too much emphasis on the evidence that no-one

had been injured before in a mammography procedure at the respondent's rooms.

(d) What the trial Judge had to consider was "the magnitude of

the risk and its degree of probability". Reference was made to Wyong Shire Council v. Shirt (1980) 146 CLR 40 at p 47. On the evidence the risk of injury was well appreciated by competent radiographers. To obviate it the standard safe practice had been adopted, especially in the case of short-waisted women, of moving the case closer to the head of the patient so as to avoid the edge of it contacting the iliac crest. Had this simple, practicable, cost neutral procedure been employed, the appellant's hip could not have come into contact with the edge of the case and the appellant would not have been injured.

As the first of these submissions suggests, his Honour did not refer in any detail to the standard practice which he thought had been observed by Mrs Morris. We think the reason for this is that it was apparent at the trial that, had the appellant's account of how the injury occurred been accepted in its entirety, it would have been common ground that there had been a departure from standard practice. The matter has been approached differently before us because counsel for the appellant has perforce accepted his Honour's primary findings of fact as the starting point for his submissions. So the emphasis of the case has changed from one where there was a dispute about how the incident occurred to one where his Honour's findings on that matter, although adverse to the appellant, are taken as the starting point from which the submission that there was negligence proceeds. Departures of this kind, although understandable because of the difficulty of challenging findings of primary fact on appeal, are something which appellate courts need to be careful about when they are asked to depart from the judgments of trial judges. So often an issue which looms largely on appeal was not the subject of substantial attention at the trial.
Nevertheless, the submissions relied upon by the appellant make it necessary for us to refer to the evidence which there was of the usual or standard practice.
The best qualified witness was Dr. Moran who was called by the respondent. He is a visiting radiologist to the Alfred Hospital in Melbourne and to the Caulfield General Medical Centre. He is the Honorary Secretary of the Victorian Branch of the College of Radiologists and, at the time of the trial, had practised as a radiologist for about eight years. He is familiar with the technique known as xeromammography and has a special interest in that subject. He gave further detail of his qualifications and experience to which it is unnecessary to refer except for evidence which he gave that he had conducted teaching courses in relation to mammography from about 1983.

He said that the procedure carried out at the Alfred Hospital in Melbourne was exactly similar to the procedure described by Mrs Morris in her evidence. But he added that it is seldom that patients lie down in perfect positioning for a mammogram so that there is usually a slight degree of either rolling the patient backwards or forwards or "moving them to small areas".
He said that about 1200 xeromammograms per year were performed at the relevant time at the Alfred Hospital. He said that he had never heard of any injuries being occasioned to any patient in the course of xeromammograms being carried out.
In the course of his cross-examination Dr. Moran conceded that in the case of a patient who was the height of the appellant, the cassette case could come down in the region of her hip if the upper end of the case were placed in line with the appellant's shoulder. The cross-examination proceeded:-

"Well, it is a matter of, how would you avoid that happening, doctor, with a small patient and a cassette box of that size? ---Well, the radiographers get very adept at positioning, and it is usually the waist height that is really relevant here - some people are short-waisted, and they would generally then position the cassette to avoid what we call the iliac crest, that hip area where the bone is, and move the cassette more towards the head. So that good, or safe radiography really requires the bottom level of the cassette box to avoid being in line with the iliac crest. Is that what you are saying? ---Yes. And, with a smaller person, to avoid that, then the careful radiographer would push the upper end, or position the upper end of the cassette box so that it was above the shoulder? ---Yes."

Other doctors who gave evidence were Dr. Stubbs and Dr. Scarlett. Dr. Scarlett was called by the appellant. He is a Fellow of the Royal Australian College of Surgeons and also a Fellow of the Royal College of Surgeons in England. He said that he had been doing medico-legal work for some 25 years and in the last ten years a large portion of his practice had involved him in treating back injuries. A primary reason why he was called was to give evidence of the appellant's spinal condition as a consequence of her injuries. But he said that, although he was not concerned, so far as causation was concerned, with the arching of the appellant's body, that is, the raising and lowering of the body, he was concerned with the lack of supervision "of it", that is the movement made by the appellant at the time she was being placed in position.
Dr. Stubbs was called by the respondent. He is also an orthopaedic surgeon. He agreed, in the course of his cross-examination, that it was not desirable that the appellant come down so that her outer hip bone impinged on a hard surface or the edge of a hard surface. The cross-examination proceeded:-

"Because that is liable to do her damage? ---Well, it is liable to be uncomfortable.

It could do her damage? ---It might."

Although Dr. Stubbs' evidence in this regard was very strongly relied upon by counsel for the appellant, it has to be understood in the context of a case in which the appellant gave evidence that she had been requested to arch her back and did so. That case was not accepted. Dr. Stubbs was not being asked about the different movement which would have resulted had the matter proceeded as his Honour found it did. We do not, therefore, find Dr. Stubbs' evidence particularly helpful. We take the same view of the evidence of Dr. Scarlett. Furthermore, both Dr. Stubbs and Dr. Scarlett were orthopaedic surgeons; they may have a substantial experience in relation to x-rays, but they are not radiologists as was Dr. Moran. His Honour did not make specific findings about any of this evidence when he drew his conclusions about standard practice, but it seems to us to be likely that he would have had regard more to the evidence of Dr. Moran than that given by the other doctors, he being a radiologist with a substantial experience in xeromammography.
In dealing with the evidence of standard practice, counsel for the appellant referred to evidence given by Mrs Morris of her practice. In particular she said that it would be desirable to avoid contact between the iliac crest and the bottom end of the cassette case. She also gave evidence that it was desirable that the bottom end of the cassette case should be in line with the waist curve.
One of the problems we have in relation to the evidence both of Dr. Moran and Mrs Morris from the appellant's point of view is that neither was asked whether, in their opinion, contact of the cassette case with the hip might cause injury. Dr. Stubbs thought that the principal reason for avoiding that contact was to avoid discomfort although he conceded that contact with the hip might cause damage.
Mrs Morris had had no experience of any person ever having been injured in the respondent's surgery as a result of the procedure. Dr. Morris' experience at the Alfred Hospital was similar. He was not aware of any injury to any patient there as a consequence of mammography. The evidence of Mrs Morris and Dr. Moran was relied upon by his Honour as an indication that, whatever the problems might be concerning short waisted women and the desirability of avoiding contact of the cassette case with the hip, it did not seem likely that any such contact would lead to an injury. If one adds to this his Honour's finding that the injury was caused by the involuntary movement or reaction of the appellant as a result of the contact of the case with her hip, it seems difficult to conclude that in some way Mrs Morris did anything or failed to do something which was in all the circumstances unreasonable or was an act or an omission which involved failure on Mrs Morris' part to take reasonable care of her patient. Her description of her usual practice was accepted by his Honour. Dr. Moran, whose evidence was inferentially also accepted, said that the practice so described was similar to that carried out at the Alfred Hospital. The implication of that evidence was that Mrs Morris' practice was a sound one. It was in the context of that evidence that his Honour concluded that there had been no departure from standard practice and that that practice was a reasonable one.
It is true that the authorities establish that the following of a standard practice used by competent medical practitioners is not necessarily conclusive of the question whether or not there has been negligence. Standard practice is an important matter but, as King C.J. said in F. v. R. (1983) 33 SASR 189 at p 194, "the ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community". Reference may also be made to Rogers v. Whitaker (1991) 23 NSWLR 600 and to E. v. Red Cross Society (1991) 31 FCR 299 at pp 315, 329 and 333. Here, however, the question whether the view should be taken that the practice in question itself should be found wanting does not really arise. That is because the primary case made by the appellant, that is her case at trial, was a departure from practice arising because her hip had come into contact with the cassette case when she had arched her body and then lowered herself on to the table.
The analysis of the problem made by his Honour, which has earlier been set out, shows that he did not exclude the possibility of the appellant being exposed to some risk of injury as a consequence of the carrying out of the procedure. But he obviously regarded the risk as remote and he was not satisfied that Mrs Morris had acted in any way unreasonably in relation to that risk with the consequence that negligence had not been established. Having considered his Honour's judgment as a whole, we are not persuaded that it discloses any error in this regard.
We take the same view of his conclusions in relation to the absence of the respondent from the witness box. The significance to be accorded that absence was particularly a matter for his Honour as the trial judge. He concluded, correctly, in our opinion, that none of the statements attributed to the respondent by the appellant in her various conversations with him constituted an admission. The respondent was not present when the procedure was carried out. In all those circumstances it seems difficult to find any error in his Honour's conclusion concerning the failure of the respondent to give evidence.
In the result the appeal is dismissed with costs.

[1992] FCA 453

26 JUNE 1992