Juengling v Wells - [2009] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JUENGLING -v- WELLS [2009] WASCA 125

CORAM: McLURE JA
MILLER JA
NEWNES JA

HEARD: 5 FEBRUARY 2009

DELIVERED : 17 JULY 2009

FILE NO/S: CACV 19 of 2008

BETWEEN: NORMAN JUENGLING
Appellant
AND
SONIA MAREE WELLS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MAZZA DCJ
Citation  :WELLS -v- JUENGLING [2008] WADC 18
File No  :CIV 335 of 2006

Catchwords:

Negligence - Whether anaesthetist negligent in failing to use nasogastric tube to decompress respondent's stomach before intubation - Whether finding of breach of duty of care by primary judge based on erroneous findings of fact - Whether there should be a new trial - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr G Droppert

Solicitors:

Appellant: Minter Ellison
Respondent: Hoffmans

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Pateman v Higgin (1957) 97 CLR 521
Rogers v Whitaker (1992) 175 CLR 479
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161
Tame v New South Wales (2002) 211 CLR 317
Warren v Coombes (1979) 142 CLR 531
Wells v Juengling [2008] WADC 18

McLURE JA: I agree with Newnes JA that the appeal should be allowed. However, I would not order a retrial. Instead, I would dismiss the respondent's action against the appellant. These are my reasons for that course.
The facts are set out in the reasons for judgment of Newnes JA. There are two limbs to the appellant's ground of appeal which is in the following terms:
The learned trial judge erred in fact and in law in finding the … appellant was negligent in failing to decompress the … respondent's stomach using a nasogastric tube … such finding being based on erroneous conclusions in respect of:
(a)the expert evidence as to the utility and effectiveness of nasogastric tubes in decompressing a patient's stomach;
(b)a perception that there was a greater risk of aspiration in respect of this respondent arising from the volume of fluid in her stomach.
Neither limb clearly identifies the issues. Having regard to the written submissions, the first limb is to the effect that, based on the expert evidence, it was not open to the trial judge to make a finding of breach. Alternatively, if the finding was open, Dr Donnelly's evidence should have been rejected.
The second limb is to the effect that the trial judge erred in taking into account the volume of intravenous fluid administered to the respondent in determining the volume of fluid in her stomach, a matter on which there was no evidence.
In summary, the relevant facts are as follows. The respondent was admitted to the Rockingham‑Kwinana Hospital on 20 January 2004 with an acute distended abdomen. Dr Couch, a surgeon, diagnosed a possible closed loop small bowel obstruction requiring an emergency laparotomy that night.
The appellant conducted a pre‑anaesthetic consultation with the respondent prior to her being taken to the operating theatre. However, the respondent was drowsy and unable to sit up which prevented the appellant from undertaking the standard test for assessing a patient's airway (a Mallampati assessment).
The appellant used an anaesthetic technique called rapid sequence induction. The appellant attempted to place the endotracheal tube (ETT) into the respondent's trachea. The trachea leads to the lungs. The respondent was difficult to intubate. Instead of inserting the ETT into the trachea, the appellant inserted it into the oesophagus. The oesophagus leads to the stomach. Unaware that the ETT was in the oesophagus, the appellant pumped air into the respondent's stomach at which point her acidic stomach contents were regurgitated up the oesophagus and were aspirated into the respondent's airway. The inflation of the stomach increased the intra‑gastric pressure.
The appellant took swift and effective remedial action to avoid the life‑threatening risk to the respondent. However, the aspiration of the acidic stomach contents into the respondent's right lung caused it to collapse and be damaged.
The appellant was aware of the risk of aspiration of the respondent's stomach contents into her airway because of her acute abdomen. He took two steps to reduce that risk. First, he used rapid sequence induction which reduces the time between the administration of anaesthetising drugs and securing the airway. Once a person is anaesthetised, the normal defences against regurgitation of stomach contents are ineffective. The airway is secured (thereby preventing aspiration) by inserting the ETT into the trachea and inflating a cuff near the end of the tube.
Second, pressure was applied to the cricoid cartilage which ordinarily causes the cartilage to block the oesophagus, thus preventing the movement of the stomach contents out of the oesophagus. The trial judge referred to cricoid pressure as '[a] universally used and, mostly, effective method to guard against regurgitation' [15]. Intubation is attempted once cricoid pressure is established. However, if the ETT is inserted into the oesophagus past the cricoid pressure point, this mechanism provides no protection against regurgitation and aspiration.
Dr Donnelly, a specialist (consultant) anaesthetist, was called to give evidence by the respondent. Dr Gibbs, the head of the Department of Anaesthesia at Sir Charles Gairdner Hospital, was called by the appellant. The appellant, also a specialist anaesthetist, gave evidence.
The independent experts agreed that the appellant was not negligent in failing in his first attempt to effect a tracheal intubation. However, there was a conflict of expert opinion as to whether the appellant was negligent in inserting the ETT into the oesophagus past the point at which cricoid pressure was being applied. Dr Donnelly was of the opinion that to push an ETT beyond cricoid pressure would require a considerable degree of force and would be obvious to a reasonable anaesthetist. Dr Gibbs' evidence was that it is relatively easy to slip past cricoid pressure because of, inter alia, the shape of the ETT and the oesophagus when pressure is applied. The trial judge accepted Dr Gibbs' evidence.
Thus, the appellant was found not to have been negligent in inserting the ETT into the respondent's oesophagus past the cricoid pressure point. There is no finding that the appellant was negligent in pumping air into the respondent's stomach.
The respondent pleaded 13 particulars of negligence, all of which were based on Dr Donnelly's reports. Only one allegation was successful. The trial judge held that the appellant was negligent in failing to decompress the respondent's stomach by the use of a nasogastric tube. Having regard to the nature of the appellant's challenge, it is necessary to refer in detail to the expert evidence.

The expert evidence

Dr Donnelly was firmly of the opinion that the respondent's stomach should have been decompressed using a nasogastric tube prior to the administration of anaesthetic. As I understand it, the procedure involves a small bore tube being fed through a patient's nose to their stomach to permit gastric fluids (and perhaps gases but not solids) to be suctioned out. The procedure is done while the patient is conscious and can be performed by nursing staff.
All the experts, including Dr Donnelly, agreed there was an increased risk of the aspiration of stomach contents into the airway where a patient has, inter alia, an acute abdomen or a 'full stomach'. In those circumstances the rapid sequence induction technique is appropriate because its purpose is to secure the patient's airway as rapidly as possible before the gastric contents start to regurgitate (ts 52).
The respondent's acute abdomen was not the only consideration that led Dr Donnelly to the view that it was necessary to decompress the respondent's stomach using a nasogastric tube. Dr Donnelly was of the opinion there was the same risk of aspiration for a woman in early pregnancy (ts 52). That view was not shared by the other experts. In a report dated 5 October 2005, Dr Donnelly said:
The matter that causes me most concern, and this involves both the surgeon and the anaesthetist, is that no gastric tube was passed prior to operation to decompress the stomach in a patient who demonstrably was suffering from an acute abdominal emergency in a very early pregnancy (GAB 5).
Accepting Dr Gibbs' opinion that the nasogastric tube should be removed prior to induction because it breaches the gastro‑oesophageal barrier, he continued:
This patient was in early pregnancy when the barrier pressure is understood to be less. She should definitely have had the benefit of a nasogastric suction as part of either her surgical or anaesthetic preparation (GAB 23).
In fact, the respondent was not pregnant.
There are multiple references in Dr Donnelly's evidence to stomach decompression by nasogastric tube being part of surgical procedure. According to Dr Donnelly, stomach decompression improves the surgeon's operating conditions (ts 69).
He was not aware of a school of thought that said the use of a nasogastric tube was not mandatory nor universal practice and continued:
It's not the sort of thing which is practised by the surgeons that I work with (ts 134).
Dr Donnelly, who practised in New South Wales, also cross‑checked his opinion with surgeons, as appears from the following evidence in cross‑examination:
Do you say it's negligent? [to choose not to use a nasogastric tube]?‑‑‑Yes, I think I would say that because virtually every surgeon I know who I have just run the basic facts of this case past said, 'What, no nasogastric tube … ' (ts 137)
Dr Donnelly was also cross‑examined on whether or not the respondent had a 'full stomach'. This is in substance a false issue.
The clearest evidence comes from the appellant. A literally full stomach would contain 1 1/2 litres (ts 188). However, the term 'full stomach' in anaesthetic literature is used to indicate a risk of aspiration, whether that be from a significant volume of fluid in the stomach in an unfasted patient or the patient having an acute abdomen or other condition where gastric emptying may be delayed (GAB 42; ts 188). That is, a stomach is treated as 'full' for anaesthetic purposes when there is a risk of aspiration due to input issues (the patient has not fasted) or output problems (the patient has an acute abdomen). Dr Gibbs also uses the term 'full stomach' as equivalent to the respondent's situation of having an acute abdomen (GAB 27 ‑ 28).
Dr Donnelly in his evidence uses the expression 'full stomach' in its anaesthetic context. Surprisingly, counsel for the appellant suggested to Dr Donnelly in cross‑examination that there was a material distinction between an acute abdomen and a full stomach. Dr Donnelly replied:
I think an acute abdomen implies that the patient will have a full stomach or a stomach which is undergoing stasis because
Stasis being?---Not passing on its contents because of problems further down and in this case this was a closed loop small bowel obstruction (ts 94).
And again:
'[A]bdo distended, generally tender' suggests to me that she had a full stomach and it is extremely common practice to ‑ in fact it is, in my view, almost obligatory, unless the patient absolutely refuses to have it, to pass a nasogastric tube, vent the stomach and reduce the amount of gas in the bowel (ts 95).
Dr Gibbs disagreed with Dr Donnelly's opinion that it was obligatory to pass a nasogastric tube. He stated in his evidence dated 10 August 2006 that:
It is not a universally recommended practice to insert a nasogastric tube prior to the induction of anaesthesia in patients with a suspected full stomach for the following reasons … :
(a)There is no guarantee that the tube will empty the stomach, because it can be easily occluded by particulate matter in the stomach, ie, it is often ineffective;
(b)The tube may hinder the normal function of the gastro-oesophageal sphincter, thereby increasing the likelihood of regurgitation.
(c)Insertion may cause bleeding, making airway management more difficult.
(d)Insertion of a nasogastric tube may be difficult and distressing for the patient. Given that there is no proven benefit, and there is possible [sic] of harm, its use in this situation is avoided by many anaesthetists.
For these reasons it is certainly not negligent to choose not to use a nasogastric tube (GAB 27 ‑ 28). (original emphasis).
He expanded on the position in examination‑in‑chief:
The use of a nasogastric tube is recommended by some textbooks, but not by all. Therefore, anaesthetists are not ‑ there is no consensus view about whether a nasogastric tube should be used or not. It is made more contentious by the fact that it has been shown ‑ it is assumed and been shown in some situations to be relatively ineffective. There are some good reasons for this, in that it is not possible to know if the stomach is empty anyway, and often there is particulate matter or little bits of mucus, which will ‑ it's a relatively thin tube, as you can imagine ‑ that would block it. So, to use a tube, there is no real guarantee. In many situations anaesthetists would, if they had used a tube and aspirated as much as possible, when the abdomen is opened later, the stomach may still be relatively full, so as a result of that, many anaesthetists ‑ and this is supported by advice in textbooks and in some of the articles that have been submitted already ‑ that it is relatively ineffective. Not only that, it is potentially harmful. It may cause bleeding when inserted through the nose, and it may cause patients to vomit. It may breach ‑ it may render relatively less effective the valve-like function of the gastro oesophageal junction into the stomach, so for those reasons it can possibly cause harm as well. The third point is that it is unpleasant. So to subject a patient already in distress to something that may be ineffective and may be harmful, many anaesthetists and most that I'm acquainted with, would not use this ‑ put one in, in this situation (ts 313).
Bleeding in a patient about to be anaesthetised may make the intubation more difficult because of the potential for blood in the pharynx which would further obscure a view which, in this case, may already have been difficult (ts 314).
Dr Gibbs rejected the proposition that the attendant will realise if the nasogastric tube had been blocked by a particulate matter. He said:
You would have no idea?---Absolutely none. You don't know whether the stomach is empty, whether you half emptied it, a tiny bit emptied it, wholly emptied it. You have got no idea. It's blind (ts 344).
Dr Gibbs accepted that preventing aspiration is critical because effective therapy is limited (ts 342) and that steps to reduce the acidity of the gastric contents, such as the administration of antacids, had not been taken in this case (ts 343).
He was also cross‑examined about what might have happened if a nasogastric tube had been passed:
Of course it might have been effective in reducing or totally removing the fluid in her stomach?---Yes, it could have been (ts 346).
Dr Donnelly accepted that a nasogastric tube may become blocked by particulate matter in the stomach. He did not say there was no risk of that occurring in the respondent's case. His position was that if the first tube gets blocked you take it out and put in another one (ts 70, 96, 135).
Dr Donnelly was asked how he knew a nasogastric tube was blocked. He said you generally use a syringe and draw back on it or you use the wall suction provided in theatre and 'you get a definite feeling that there is something blocking it' (ts 135).
However, Dr Donnelly accepted that a nasogastric tube was not foolproof. He said:
[A] nasogastric tube is not entirely foolproof which I think is the substance of the papers which are referred to by Prof Gibbs, and there is always the possibility that the patient might get more fluid in their stomach as they go to sleep or there may be a loculus of fluid in the stomach which I haven't been able to suck out and that can still come up (ts 134 ‑ 135).
Dr Donnelly accepted that a nasogastric tube may hinder the normal function of the gastro oesophageal sphincter if it remains in situ during the administration of anaesthetic but not if it is removed beforehand. That appears to be accepted by Dr Gibbs (ts 346 ‑ 347).
Dr Donnelly appears to accept that bleeding can make airway management more difficult because he simply responds that there are things that can be done, such as using topical nose drops, which 'minimise that complication'. He regarded it as a 'low frequency risk' (ts 137).
Dr Donnelly also accepted that the insertion of a nasogastric tube may be difficult and distressing (and patients hate it) but it is one of those situations where the benefits outweigh the risks (ts 137). The case was run on the basis that the decision on the use of a nasogastric tube was solely that of the medical practitioners.
The appellant's evidence was that he considered but decided against using a nasogastric tube because he did not think the respondent would be a very difficult intubation; he was going to control the risk of aspiration with rapid sequence induction and cricoid pressure; a nasogastric tube is fairly traumatic to pass and can cause coughing, vomiting and quite severe nose bleeds; and in his experience the nasogastric tube did not guarantee an empty stomach. He said:
From my own experience of taking a lot of people to theatre we have had a nasogastric down for days beforehand and inevitably the bowel is still distended, got fluid in it, so it's not guaranteed of emptying the stomach … (ts 188).
However, he said with hindsight he would have inserted a nasogastric tube (ts 243).
The summary of the academic literature and authoritative texts appears to be that where there is a risk of aspiration, no‑one suggests stomach decompression with a nasogastric tube is mandatory, some recommend it, others do not and still others are silent on its use (ts 312 ‑ 314).

The trial judge's reasons

In considering whether the failure to decompress the respondent's stomach using a nasogastric tube was in breach of the appellant's duty of care, the trial judge concluded that the risk of aspiration and thus damage to the lung was foreseeable [232]. Having established foreseeability, the trial judge said the respondent had to go further and demonstrate that decompression by nasogastric tube 'was practical in the circumstances and was likely to be effective in reducing the risk of injury' [233].
The trial judge found that decompression by a nasogastric tube was practical in the circumstances [234]. There is no challenge to that finding. He then turned his attention to whether it was likely to be effective in reducing the risk of injury. The trial judge said:
An important factor in the effectiveness of nasogastric decompression is the nature of the gastric contents. If the gastric contents are likely to contain particulate matter there is, in my opinion, a considerable chance that the nasogastric tube would become blocked and would be rendered ineffective. But in this case, the plaintiff had not eaten any solid food for approximately 36 hours before surgery. She had been given fluids either orally or intravenously during that time. The Rockingham-Kwinana Hospital notes, which the defendant read, showed that she had been given, whilst at the hospital, 3 litres of intravenous fluid. In light of this, in my view, it was most unlikely that there would be any particulate matter in the plaintiff's stomach and that was something that was either known to the defendant or ought to have been known to him. Accordingly, I do not think that any attempt to decompress the plaintiff's stomach using a nasogastric tube would have been ineffective by reason of the occlusion of the nasogastric tube with particular matter and this was not a reason which ought reasonably to have caused the defendant to decide not to pass a nasogastric tube [241].

It was accepted by the parties to the appeal that the fact and amount of intravenous (IV) fluid was relevant to the state of the respondent's hydration but irrelevant to the level of fluid in her stomach. The latter is affected by the oral intake of fluid, which the trial judge found to be poor [221].
The trial judge accepted that the administration of a nasogastric tube is very uncomfortable but held that the benefits of decompression outweighed the discomfort [243]. He also concluded that the use of topical drops as mentioned by Dr Donnelly would have been an effective measure against the risk of nasal bleeding [244].
The trial judge then addressed the issue of whether the respondent had a full stomach. He said:
[Counsel for the appellant] strongly submitted that there was no evidence that the [respondent] had a full stomach and therefore decompression of the [respondent's] stomach would have been pointless and ineffective [245].
He noted there was no evidence of the precise volume of the respondent's stomach contents but continued that the appellant knew or ought to have known that the respondent 'had taken on 3 litres of intravenous fluid since she had been admitted to hospital' [246]. He continued:
In my opinion, while it cannot be said that the [respondent] had a literally full stomach, she had in her stomach a sufficient volume of fluid which if regurgitated and aspirated had the potential to cause her serious harm. Further, I am of the view that the [appellant] should have appreciated this fact by reference to the hospital records that were made available to him and which he perused [248].
The trial judge then turned to the expert evidence. He noted that Dr Gibbs did not go so far as to say that decompression by nasogastric tube was generally ineffective and should not be used, nor did he say that it was accepted medical practice not to decompress the stomach using the nasogastric tube before a rapid sequence induction [250]. The trial judge continued:
Upon a consideration of all of the evidence it seems to me that while decompression is not obligatory in all cases of a patient who has an acute abdomen and must undertake a rapid sequence induction, it is often employed, with good effect, more likely in cases where the stomach contents are liquid. In the end, it depends upon the circumstances of each case whether the procedure should be used.
In my opinion Dr Gibbs tended to analyse this issue from the theoretical perspective of whether nasogastric decompression was a mandated requirement of a rapid sequence induction and not by a reference to the particular circumstances of this case. Notwithstanding the shortcomings of Dr Donnelly which I have already referred to in this judgment, I found that his evidence on the need to decompress the respondent using a nasogastric tube persuasive [251] ‑ [252].
The trial judge's impression of Dr Donnelly was that he was a man who harboured strong feelings concerning the appellant's care of the respondent, used inappropriately dogmatic language and was plainly wrong on some matters (such as that the respondent was pregnant) [227].

The second limb - IV fluid

As previously noted, the trial judge erroneously concluded that the IV fluid administered to the respondent materially affected (increased) the volume of fluid in the respondent's stomach.
The next question is whether that error is material. It is certainly central to the trial judge' conclusion in [248] that the respondent had in her stomach a sufficient volume of liquid which if regurgitated and aspirated had the potential to cause her serious harm. However, that is not a material error affecting the outcome. The submission put by counsel for the appellant at [245] that there was no evidence that the plaintiff had a full stomach and therefore decompression of the plaintiff's stomach would have been pointless and ineffective (rejected at [248]) was inconsistent with all the expert evidence and was a false issue. It was accepted by the appellant and the independent experts that the respondent was at risk of regurgitation and aspiration of her stomach contents because her acute abdomen placed her in the same risk situation as an unfasted patient, who for anaesthetic purposes, is regarded as having or being at risk of having a full stomach.
If that were the only reliance on the volume of IV fluid administered to the respondent, I would dismiss this ground. However, it is also referred to at [241] which paragraph is the pivot point for the finding of breach. The trial judge relied on the fact that the respondent had not eaten any solid food for approximately 36 hours and had 3 litres of IV fluid to conclude that it was unlikely that there would be any particulate matter in the respondent's stomach. Based on that finding he concluded it was likely on the balance of probabilities that the use of a nasogastric tube would be effective to totally remove or substantially reduce the respondent's gastric contents [241]; [291].
Thus the finding about the lack of particulate matter in the respondent's stomach is central to the finding that decompression would have been effective to prevent or reduce aspiration which in turn was central to the finding of breach. However, the trial judge's reliance in [241] on the IV fluid would not result in a material error if there was a sound evidentiary basis for the finding that it was most unlikely that there would be any particulate matter in the respondent's stomach.
In my view, that finding is not open on the evidence. The evidence at its highest is from Dr Donnelly who said:
She was at risk from having a full stomach, probably liquid on the basis of what she had consumed over the previous ‑ in the preceding 36 hours and this could be readily treated by the passage of a nasogastric tube. I think Prof Gibbs raises the issue, 'It will block if there's solid material in it. Well, you take it out, solid material, tube and all and put another back down and then you keep going' (ts 96).
Dr Donnelly did not say it was unlikely there would be any particulate matter in the respondent's stomach. His repeated response to the possibility of particulate matter causing a blockage was that the proper course was to remove the nasogastric tube and replace it with another. Further, Dr Donnelly accepted that gastric fluid may remain notwithstanding the use of a nasogastric tube (ts 134 ‑ 135). Moreover, it was not put to Dr Gibbs that it was unlikely that there would be any particulate matter in the respondent's stomach. His whole evidence is inconsistent with that thesis.
The trial judge clearly rejected Dr Donnelly's evidence that decompression is obligatory in all cases where a patient has an acute abdomen [251]. His conclusion of breach depended on his finding that it was most unlikely there would be any particulate matter in the respondent's stomach with the consequence that it was more likely than not that stomach decompression would be effective (on the balance of probabilities). It follows that the finding of breach must be set aside.
The remaining questions are whether the matter can be determined based on the balance of the trial judge's findings and if not, whether this court can and should make its own finding on breach. That also raises for consideration the first limb of the appellant's ground of appeal. Before considering these matters, it is necessary to advert to the relevant legal principles.

Legal principles

The trial judge said that in order to prove breach the respondent had to establish foreseeability of risk and that decompression by nasogastric tube was practical and likely to be effective in reducing the risk [233].
That is not an accurate statement of the law. It is not the case that because the risk of harm is reasonably foreseeable and reasonably preventable that a finding of negligence must follow. It is necessary to ask the further question of whether the appellant's failure to eliminate or reduce the relevant risk showed a want of reasonable care and skill in the provision of specialist anaesthetic services: Tame v New South Wales (2002) 211 CLR 317 [98] ‑ [99] (McHugh J); Rogers v Whitaker (1992) 175 CLR 479, 483.
In Rogers v Whitaker, the court held that the Bolam principle (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) does not apply in Australia. The Bolam principle provides that a doctor is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. However, evidence of professional medical practice and opinion remains relevant to the issue of whether there has been a breach of duty but does not dictate the outcome. As stated by the High Court in Rogers v Whitaker:
[W]hile evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care (487).
The High Court in Rogers v Whitaker (at 484) also noted that in matters involving medical expertise, there is ample scope for genuine differences of opinion and a practitioner is not negligent merely because his or her procedure differs from that of other practitioners. In medicine, as in the law, there are matters of judgment on which practitioners exercising reasonable care can differ.

The expert evidence and breach

As previously noted, the trial judge made a positive finding that decompression is not obligatory in all cases with a patient who has an acute abdomen; whether or not it is required depends upon the circumstances of each case [251]. The only circumstance identified by the trial judge which put decompression of the respondent in the required category was that it was most unlikely she had particulate matter in her stomach. As that finding has been set aside, the respondent returns to the general category in which decompression is not obligatory. There is no notice of contention claiming the decision should be upheld on other grounds.
Further and in any event, I am satisfied the weight of the evidence supports a finding that reasonable care did not require stomach decompression by nasogastric tube.
The risk of regurgitation and aspiration arose because of the need for the respondent to be anaesthetised for emergency surgery. The risk would have been eliminated by rapid sequence induction and cricoid pressure but for a number of unintended events. First, the appellant failed to put the ETT into the trachea. Second, he put the ETT into the oesophagus. Third, he breached cricoid pressure and inflated the stomach. All of these events occurred without negligence. This case raises the issue of what constitutes reasonable steps to eliminate risks flowing from non‑negligent errors. However, the relevant question remains: what precautions should the appellant have reasonably taken to eliminate or materially reduce the risk of aspiration. A precaution is not classified as reasonable unless its performance would, in the ordinary course of events, avert the risk that called it into existence: Bennett v Minister of Community Welfare (1992) 176 CLR 408, 422 (Gaudron J); Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161.
It is appropriate to identify at the outset the matters on which there is consensus and where there is conflict. There is consensus on the following. There was a risk of aspiration of the respondent's stomach contents into her airway because of her acute abdomen. Preventing aspiration is critical because effective therapy is limited. Proper measures to reduce the risk include rapid sequence induction and the application of cricoid pressure. The purpose of stomach decompression by nasogastric tube is to remove the fluid content of the patient's stomach. There is a risk of blockage of a nasogastric tube by particulate matter in the stomach. The passage of a nasogastric tube is uncomfortable and can be distressing to the patient. There is a risk (characterised by Dr Donnelly as low) of a nasogastric tube causing bleeding which may make airway management more difficult. The appellant's pre‑anaesthetic consultation was (for reasons beyond his control) not ideal.
The areas of conflict are quite narrow. There is some disagreement as to whether it is possible to assess if a nasogastric tube is blocked and the related issue of the effectiveness of the procedure. Further, the practice in New South Wales relating to the use of nasogastric tubes, of which Dr Donnelly was aware, differs from that in Western Australia of which Dr Gibbs gave evidence. Assuming the practice of other practitioners is relevant, it is pertinent to note that Dr Donnelly's evidence of general practice related to that of the surgeons he worked with. That is of limited assistance when considering the duty owed by a specialist anaesthetist. Otherwise, his evidence related to his own practice as an anaesthetist. Dr Gibbs' evidence was of the practice of anaesthetists in general. He was qualified to speak of that because of his position at Sir Charles Gairdner Hospital. Further, he was Chair of the West Australian Anaesthetic Mortality Committee and familiar with emergency management of the type under consideration.
Finally, the independent experts drew conflicting inferences on whether the appellant's failure to decompress the stomach by nasogastric tube breached the standard of care owed by a specialist anaesthetist. That is the ultimate issue for determination by the court and, being a matter of inference, is one on which an appellate court is in as good a position as a trial judge to decide: Warren v Coombes (1979) 142 CLR 531.
The conflicts in the independent expert evidence are capable of being resolved rationally by examination and analysis of the record without reference to demeanour and impression. Although there was some criticism of the manner in which Dr Donnelly gave his evidence, there was no general credibility finding against the independent experts. It is appropriate that their evidence on the subject of stomach decompression be taken at face value.
The most important factual issue is the effectiveness of the nasogastric tube procedure in emptying, or substantially removing, gastric fluid from the stomach. The language used by Dr Gibbs on this issue is not without ambiguity. He said in his report '[t]here is no guarantee that the tube will empty the stomach, because it can be easily occluded by particulate matter in the stomach, ie, it is often ineffective' (GAB 28). If a guarantee of effectiveness were required, very few if any medical procedures would be undertaken.
However, the term 'guarantee' has to be read in context with the observations that the nasogastric tube can be easily occluded and is often ineffective. That is consistent with Dr Gibbs' oral evidence. The thrust of his evidence as a whole is that stomach decompression by nasogastric tube is a 'hit and miss' procedure that produces unreliable and variable results. That corresponds with the appellant's unchallenged evidence of his personal experience and the experiences to which Dr Gibbs refers in his oral evidence. Moreover, I do not understand Dr Donnelly to contest Dr Gibbs' evidence that a nasogastric tube can be easily occluded and is often ineffective. Dr Donnelly's position is based on being able to 'feel' a blockage in which event he would remove the nasogastric tube and replace it with another. The evidence of Dr Gibbs should be accepted.
Further, there is not a wide gulf between the evidence of Dr Gibbs and Dr Donnelly on the reliability of assessing whether a nasogastric tube is blocked. The procedure is conducted blind. Whether or not the tube is blocked is at best a matter of 'feel' with a significant margin for error. This is recognised by Dr Donnelly in his concession as to why cricoid pressure should still be applied after stomach decompression by nasogastric tube.
Based on Dr Gibbs' evidence, it cannot be concluded on the balance of probabilities that stomach compression by nasogastric tube (or indeed more than one in the event of a known blockage) would, in the ordinary course of events, empty or substantially empty the stomach of gastric fluid so as to avert the risk of regurgitation and aspiration. It might (could) on some occasions but not on others. In hindsight, the appellant would have passed a nasogastric tube because it might have averted the risk. However, the law does not impose an obligation on medical practitioners to take precautions that 'might' be effective. The absence of a finding that use of a nasogastric tube would in the ordinary course of events avert the risk of aspiration is determinative.
Considerations of reasonable clinical judgment would only intrude if there was a finding on the balance of probabilities that in the ordinary course of events stomach decompression would avert the risk of aspiration. In that event, it is appropriate to consider the extent of the possibility that it might not work. Where the possibility of failure is high (even with the option of passing more than one nasogastric tube) the weight to be given to the risk of adverse complications and the discomfort and distress to patients will increase. The unreliability of the procedure, together with the other factors identified by Dr Gibbs explain why many anaesthetists and most that Dr Gibbs was acquainted with 'would not use this ‑ [a nasogastric tube], in this situation'. The evidence establishes that the decision whether to use a nasogastric tube in this case involved a matter of clinical judgment on which reasonable minds might differ.

Although not all the steps in my analysis were raised on behalf of the appellant, they are essential to the determination of the grounds of appeal and must therefore be addressed.
For these reasons, I would uphold the appeal and order that the plaintiff's (respondent's) claim be dismissed.
MILLER JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a judgment of Mazza DCJ in the District Court, in which his Honour found that the appellant was negligent in failing to decompress the respondent's stomach using a nasogastric tube in the process of intubating her for the purpose of administering a general anaesthetic prior to emergency abdominal surgery. His Honour found that as a result of the appellant's negligence, a substantial amount of fluid in the respondent's stomach was regurgitated and aspirated into her trachea and lungs, causing serious injury: Wells v Juengling [2008] WADC 18. The appellant appeals against the finding that he was negligent. No question arises as to damages, the quantum having been agreed before trial.

Background

At the relevant time the respondent (Ms Wells) was 27 years of age. On 21 January 2004, she consulted her general practitioner complaining of stomach pains, vomiting and diarrhoea. The general practitioner arranged for Ms Wells to be taken to the Rockingham‑Kwinana District Hospital (the hospital) by ambulance.
At the hospital, an emergency doctor conducted an initial medical examination of Ms Wells and made a preliminary diagnosis of a bowel obstruction. He then arranged for her to be seen by a general surgeon, Dr Couch. Dr Couch examined Ms Wells at approximately 6.50 pm that day and assessed her as having an 'acute abdomen' with a possible closed loop small bowel obstruction. He decided that Ms Wells should undergo a laparotomy that night.
The appellant (Dr Juengling) is a specialist anaesthetist. He was the anaesthetist on call for the hospital that night. After examining Ms Wells, Dr Couch telephoned Dr Juengling who agreed to come to the hospital to perform the anaesthetic for Ms Wells's laparotomy.

At about 7.30 pm, Dr Juengling arrived at the emergency department and immediately conducted a pre‑anaesthetic assessment of Ms Wells. He based his assessment on an examination of Ms Wells and perusal of her medical record. Ms Wells was conscious but drowsy. She was unable to sit up. From the time of her admission to the hospital, Ms Wells had not taken any solids but had been given fluids orally and had received three litres of fluid intravenously. She had also received anti‑nausea medication, Panadol and morphine.

Ms Wells was taken to theatre and at 7.50 pm the anaesthetic procedure was commenced by Dr Juengling, assisted by an experienced anaesthetic technician, Ms Sleight. Dr Juengling decided to anesthetise Ms Wells using a technique called rapid sequence induction (RSI). He chose RSI because he assessed Ms Wells as having an increased risk of regurgitation and aspiration of gastric contents due to her 'acute abdomen'.
RSI includes the application of cricoid pressure to block the oesophagus, impeding regurgitation. As it was described by an expert witness, Dr Donnelly (exhibit 1), the cricoid cartilage lies below the larynx and is shaped like a signet ring with the bulky part facing towards the oesophagus. When pressure is properly applied to it, it is pushed backwards, blocking the oesophagus and preventing reflux of gastric contents.
Dr Juengling administered anaesthetic drugs to Ms Wells so that she was sedated and paralysed. He then proceeded to attempt to pass an endotracheal tube (ETT) into Ms Wells's trachea, with the aid of a laryngoscope. The laryngoscope is used to move the tongue out the way to expose the epiglottis and the vocal cords, and has a light to illuminate the throat to assist the anaesthetist in passing the ETT safely down into the trachea. Once the ETT was in the correct position, it would be connected to the ventilator, allowing Ms Wells to be ventilated and to receive anaesthetic gas throughout the operation.
Dr Juengling had difficulty intubating Ms Wells because her anatomy was such that he was unable to view Ms Wells's vocal cords. Unbeknown to Dr Juengling, he mistakenly passed the ETT into Ms Wells's oesophagus rather than into her trachea. (I should say it was common ground that such an event can occur quite easily and it was not suggested that it was due to any lack of care by Dr Juengling.)
Dr Juengling connected the ETT to the anaesthetic circuit and ventilated Ms Wells while he waited for the capnograph, a monitoring device which produces a graph from an analysis the patient's expiratory air, to confirm that the ETT was positioned in the trachea. In fact, as the ETT was positioned in the oesophagus the air passed through it into Ms Wells's stomach and caused regurgitation of her gastric contents. Although Ms Sleight was applying cricoid pressure, Dr Juengling observed gastric contents coming up the ETT and also in Ms Wells's mouth. He disconnected the ETT from the circuit and used a sucker to clear the fluid from Ms Wells's mouth.
Dr Juengling, assisted by other theatre staff, turned Ms Wells onto her right side in an attempt to limit the extent of any aspiration, and, in particular, to protect her left lung. Dr Juengling said in evidence that he chose the right side because, due to the way the bronchi are positioned, any aspiration was more likely to have gone into the right lung. Dr Juengling then removed the ETT, continued to suction all the evident fluid from Ms Wells's mouth and from her pharynx (under direct vision with the laryngoscope), and briefly manually ventilated Ms Wells using a bag and face mask. He then reintubated Ms Wells while she remained on her side and applied suction via the ETT, which recovered no secretions. Ms Wells was paralysed so it was imperative that she be intubated and ventilated as quickly as possible as she could not breath spontaneously. The second intubation attempt was successful.
The laparotomy was then performed. A chest X‑ray was carried out after the surgery was completed. The radiology report on that X‑ray states that 'the right upper and mid zones are completely opaque, consistent with complete lung collapse … the left lung appears normal'.
Following the surgery, Ms Wells was kept paralysed, sedated and ventilated and was transferred by ambulance to the intensive care unit (ICU) at Fremantle Hospital. Dr Juengling and Ms Sleight travelled with Ms Wells in the ambulance.
Ms Wells was assessed in the ICU shortly after midnight on 22 January 2004 and a chest X‑ray was performed. The radiology report noted 'extensive right upper lobe consolidation'. A subsequent chest X‑ray was performed some seven hours later on 22 January 2004. The radiology report noted 'right upper lobe consolidation has almost entirely resolved. The left lung is clear'.
Ms Wells was sedated overnight and, once she was awake and alert, was extubated on 22 January 2004. Ms Wells was discharged from ICU to the ward on 23 January 2004.
Ms Wells's respiratory condition subsequently deteriorated and, on 26 January 2004, she was re‑admitted to ICU with a diagnosis of adult respiratory distress syndrome. On 27 January 2004, Ms Wells was intubated and ventilated and, on 28 January 2004, a tracheostomy was performed. Ms Wells was extremely unwell and remained in ICU on ventilatory support for several weeks. On 31 March 2004 she was discharged to the ward and from there she was discharged home on 5 April 2004.
Ms Wells subsequently brought the proceedings which are the subject of this appeal.
It is necessary before proceeding further to describe briefly the anaesthetic technique known as rapid sequence induction (RSI) and the use of a nasogastric tube (NGT).

Rapid sequence induction

RSI was described in the expert evidence (GAB 4, ts 174) as a procedure used to anaesthetise patients where there is an increased risk of the regurgitation of stomach contents, and the aspiration of them into the lungs, because the patient either has not fasted or has an 'acute abdomen' (which was explained in the evidence to mean any abdominal problem). The patient is therefore assumed to have sufficient fluid in their stomach to cause harm if aspirated. The procedure is quicker than a standard anaesthetic procedure. The procedure was described as follows:
1.The patient is pre‑oxygenated for 3 ‑ 5 minutes via a face mask to minimise the risk of decreased oxygenation during the period that the patient cannot breathe before being connected to the ventilator.
2.Anaesthetic drugs are administered intravenously which sedate and paralyse the patient.
3.As the patient becomes drowsy, cricoid pressure is applied and is maintained until the patient is successfully ventilated. Pressure is applied by hand to the patient's cricoid cartilage so that the cricoid is compressed against a vertebra, occluding the oesophagus to prevent gastric contents coming up past that point. This protects the patient's upper airway from aspiration of gastric contents.
4.While cricoid pressure is maintained, the anaesthetist inserts the ETT into the patient's trachea via the patient's mouth. The ETT is connected to the anaesthetic circuit.
5.The anaesthetist ascertains that the ETT is correctly positioned in the trachea by observing the waveform on a monitor, the capnograph. The capnograph indicates the presence of carbon dioxide in the patient's expiratory air.
6.Once it is ascertained that the ETT is correctly positioned, the cuff on the ETT is inflated, isolating the trachea from the oesophagus and the upper airway. When that is done, cricoid pressure is released.

Use of a nasogastric tube to decompress the stomach

As the name suggests, an NGT is a tube passed through the patient's nasal passage into the stomach to draw fluid and gas from the stomach. The process of drawing the fluid and gas is known as decompression. The question of whether an NGT should have been used to decompress Ms Wells's stomach is the central issue on the appeal.

The respondent's claim

At the trial, Ms Wells relied upon a number of grounds of negligence but only one is relevant for the purposes of this appeal, namely that Dr Juengling was negligent in that he 'failed to pass a nasogastric tube to empty Ms Wells's stomach in the process of intubation in Ms Wells who was suffering from an acute abdominal emergency'. The other grounds of negligence were rejected by the trial judge and Ms Wells does not seek to impugn those findings.

The findings of the trial judge

The trial judge held that Dr Juengling was negligent in failing to decompress Ms Wells's stomach by the use of an NGT.
His Honour found that Dr Juengling was aware that Ms Wells had an acute abdomen and that, as a result, was at greater risk of regurgitation and aspiration of her stomach contents. While Dr Juengling believed that that could be effectively controlled by the proper application of cricoid pressure, he knew that cricoid pressure was not always effective. If it failed for any reason there was nothing to stop regurgitation and aspiration of the stomach contents. The trial judge also found that Dr Juengling was aware that if Ms Wells's gastric contents passed into her trachea and lungs there was the potential for serious injury. His Honour accepted that as cricoid pressure was usually effective, the probability of such an injury was low, but concluded that it was nevertheless a real, and not a far‑fetched or fanciful, risk. It was therefore a foreseeable risk.
His Honour said that the relevant questions were then whether decompression by use of an NGT was likely to be effective and whether it posed a risk of harm to Ms Wells.
His Honour observed that on the question of harm to Ms Wells, the expert evidence was divided. Dr Gibbs, the expert witness called on behalf of Dr Juengling, and Dr Juengling himself did not regard the use of a nasogastric tube as a necessary step in an RSI and considered that in some circumstances it posed an undue risk of harm to the patient. They said that the passing of the tube was unpleasant for the patient and can cause nasal bleeding, which in turn can make the process of intubation more difficult. They also said there was a danger that the tube could interfere with functioning of the gastro‑oesophageal sphincter. Both emphasised that a nasogastric tube might not be effective in emptying the stomach as particulate matter in the stomach could block the tube.
Ms Wells's expert witness, Dr Donnelly, considered the risk to the patient was low and the problems identified by Dr Gibbs and Dr Juengling could fairly readily be alleviated. Dr Donnelly considered that the value of the procedure outweighed any discomfort to the patient.
With respect to professional practice, his Honour noted that the expert opinion was again divided. Dr Donnelly's evidence was that decompression was almost obligatory when the patient had an acute abdomen. Dr Gibbs, on the other hand, said there was no consensus among anaesthetists on its use and in the professional literature it is not a universal recommendation - some texts regard it as a good idea, some say it is not always effective, and some are silent on the point.
The trial judge referred to Dr Juengling's evidence that he had considered the use of a nasogastric tube but had rejected it for several reasons, namely, he did not think Ms Wells would be difficult to intubate; he could control the risk of aspiration by cricoid pressure; the passing of the tube was traumatic and not always effective; and he believed Ms Wells did not have a full stomach because she had been fasting and had vomited some hours before the procedure.
His Honour did not accept that the discomfort of Ms Wells or the risk of nasal bleeding were factors weighing against the use of an NGT, the former being outweighed by the benefit of the procedure and the latter, on Dr Donnelly's evidence, being treatable by topical drops. Nor did his Honour consider that the prospect of blockage of the tube by particulate matter to be a relevant factor. He found that Dr Juengling knew, or ought to have known, that Ms Wells had not had solid food for approximately 36 hours but had been taking only fluids, including three litres of intravenous fluid whilst at the hospital.
The trial judge observed that there was no evidence as to the precise volume of Ms Wells's stomach contents. His Honour noted, however, that it was evident from the hospital records that since being admitted to the hospital, but prior to intubation, Ms Wells had received three litres of fluid intravenously. While Dr Juengling was aware that Ms Wells had vomited and had bouts of diarrhoea, he ought to have been aware that since her admission to the hospital she had been administered anti‑nausea drugs. The trial judge concluded [248] that Dr Juengling should have known from the hospital records that Ms Wells had in her stomach a sufficient volume of fluid which, if regurgitated and aspirated, had the potential to cause her serious harm.
Having considered the relevant expert opinion, the trial judge found [251] that while decompression was not obligatory in all cases, where a patient has an acute abdomen and must undergo RSI, 'it is often employed, with good effect, more likely in cases where the stomach contents are liquid. In the end, it depends upon the circumstances of each case whether the procedure should be used'.
His Honour found [254] that the passing of an NGT would have safely and effectively decompressed Ms Wells's stomach and that, in the circumstances of Ms Wells, if cricoid pressure failed she was at risk of serious injury. His Honour held that, subject to causation, Dr Juengling was negligent in failing to decompress Ms Wells's stomach by use of an NGT.
The trial judge then turned to the issue of causation and found that, had Dr Juengling used an NGT to decompress Ms Wells's stomach, it is more likely than not that Ms Wells's gastric contents would have been totally removed, or at the very least would have been substantially reduced to a point where Ms Wells would not have suffered the injuries she did. His Honour found that Dr Juengling's failure to decompress her stomach by use of an NGT materially contributed to Ms Wells's injury.

The grounds of appeal

Dr Juengling relied upon the following ground of appeal:
The learned trial judge erred in fact and in law in finding the appellant was negligent in failing to decompress the respondent's stomach using a nasogastric tube, such finding being based on erroneous conclusions in respect of:
(a)the expert evidence as to the utility and effectiveness of nasogastric tubes in decompressing a patient's stomach;
(b)a perception that there was a greater risk of aspiration in respect of this respondent arising from the volume of fluid in her stomach.
A second ground of appeal relating to causation was withdrawn by Dr Juengling's counsel on the hearing of the appeal.

The appellant's submissions

On behalf of Dr Juengling, it was submitted, first, that the finding of negligence was contrary to the evidence. The evidence of Dr Gibbs was that the procedure followed by Dr Juengling accorded with well‑recognised and standard practice and with respected medical literature. Dr Donnelly considered that an NGT should have been used but accepted that they were not entirely foolproof, there were possible complications associated with them and that their use may be avoided by many anaesthetists. While merely acting in accordance with accepted practice is not itself a defence to an alleged breach of duty, medical practice and opinion remains relevant to the issue of whether there has been a breach of duty. Having regard to the expert evidence, Dr Juengling had followed well‑recognised and standard anaesthetic practice and it was not open to the trial judge to find that Dr Juengling was negligent.
Secondly, it was submitted that the trial judge erred in finding that because of the volume of fluid in Ms Wells's stomach, Ms Wells was at greater than normal risk of injury if cricoid pressure failed. There was no evidence as to the volume of fluid in Ms Wells's stomach. The conclusion of the trial judge as to the volume of fluid in her stomach resulted from an erroneous belief that the three litres of fluid administered intravenously could have found its way into her stomach. There was no evidence that the circumstances of Ms Wells required measures greater than the use of the RSI technique alone.
It was further submitted that on the evidence the trial judge erred in finding that a reasonable anaesthetist would have used an NGT prior to commencing RSI. It was the evidence of Dr Gibbs that an NGT was generally ineffective and it was not accepted medical practice to decompress a stomach using an NGT before an RSI. The evidence of Dr Juengling was that in most cases where RSI is used an NGT is not used. The contrary view of Dr Donnelly that the use of an NGT was 'almost obligatory' was idiosyncratic and inconsistent with the major medical text in the area, and should have been rejected.

The respondent's submissions

It was submitted on behalf of Ms Wells, first, that there was no evidence that an NGT usually or generally failed to remove fluid from the stomach. The evidence was that there was a possibility that all fluid may not be removed, because, for example, the tube may be blocked by particulate matter. The trial judge was entitled to find, as he did, that it was most unlikely there would have been particulate matter in Ms Wells's stomach. Moreover, Dr Gibbs did not say that the procedure was generally ineffective, but rather that it may be ineffective. There was no evidence that in this case it was likely an NGT would have been ineffective.
Secondly, it was submitted that the evidence of Dr Gibbs and Dr Juengling fell short of evidence that it was standard anaesthetic practice not to decompress a patient at risk of aspiration before commencing RSI. On the evidence, the trial judge was entitled to find that, while not obligatory, decompression using an NGT was often employed to good effect where the stomach contents are liquid and that in each case it depends upon the circumstances whether it should be used. His Honour was entitled to find on the basis of Dr Donnelly's evidence, that it should have been used in the circumstances of this case.
It was submitted that his Honour did not find that the intravenous fluid went into Ms Wells's stomach. The reference to intravenous fluid was a reference to Ms Wells's state of hydration. The evidence of vomiting prior to the administration of anti‑nausea medication confirmed that Ms Wells had fluid in her stomach. The amount of fluid which was regurgitated and the X‑ray evidence of the lungs showed a large volume aspiration. In any event, while there was no evidence of the actual volume of liquid in Ms Wells's stomach, that was not necessary in order for the trial judge to conclude that the volume was sufficient that, if regurgitated and aspirated, it had the potential to cause Ms Wells serious harm. The trial judge was entitled to find that while Ms Wells may not have had literally a full stomach, she had sufficient volume in her stomach to cause serious harm if regurgitated and aspirated.

Disposition of the appeal

The essential question raised by the appeal is whether Dr Juengling was in breach of the duty of care he owed to Ms Wells by failing to decompress her stomach using an NGT before attempting to intubate her. His Honour concluded that in the circumstances of Ms Wells an ordinary skilled anaesthetist would have done so and accordingly that in failing to do so Dr Juengling was negligent.
In my opinion, with respect, that finding cannot stand. That is because it proceeds, or appears to proceed, upon the view of the trial judge that a material circumstance (of which Dr Juengling was or ought to have been aware) was that Ms Wells had received three litres of intravenous fluid after admission to the hospital which had increased the risk to Ms Wells of injury from the regurgitation and aspiration of her stomach contents. There was, however, no evidence that the amount of fluid Ms Wells had taken intravenously would have affected the amount of fluid in her stomach or that it was otherwise relevant to the risk of injury from regurgitation and aspiration.
To explain the view I have reached it is necessary to consider to the findings of the trial judge in some detail. The trial judge [230] framed the duty of care Dr Juengling owed to Ms Wells as being a duty to ensure that reasonable care was taken to minimise the risk of foreseeable harm to Ms Wells. He then stated that the relevant question was whether a reasonably skilled anaesthetist, faced with the circumstances of this case, should have decompressed Ms Wells's stomach using an NGT. (I should say that no complaint is made about that formulation of the issue.)

His Honour went on:
On the defendant's own evidence, he was aware that the plaintiff had an acute abdomen and, as a result, was at greater risk of regurgitation and aspiration of her stomach contents. That risk, the defendant believed could be effectively controlled by the proper application of cricoid pressure. However, as he acknowledged, cricoid pressure is not always effective. The defendant knew that on occasions cricoid pressure failed for anatomical reasons or because of an accidental oesophageal intubation which breached cricoid pressure. (Indeed this is his case on the issue of oesophageal intubation.) If cricoid pressure failed for whatever reason, the defendant knew that there was nothing to stop regurgitation and aspiration of the stomach contents. Further, the defendant knew that if the plaintiff's gastric contents got into her trachea and lungs, effective therapy was limited and the potential for serious injury was great. Finally, the pre-anaesthetic consultation should have led him to proceed cautiously.
Having regard to these matters in combination I find that a reasonable anaesthetist in the defendant's position should have foreseen that in the event of an accidental oesophageal intubation which breached cricoid pressure the plaintiff would have been exposed to a risk of sustaining a very serious injury. While the probability of its occurrence was low, because cricoid pressure is usually effective, it was a real risk and not far-fetched or fanciful.
This finding does not of itself dispose of this issue in favour of the plaintiff. The plaintiff must further demonstrate that decompression by nasogastric tube was practical in the circumstances and was likely to be effective in reducing the risk of injury [231] ‑ [233].
It would appear to be implicit in that passage that, having found that because Ms Wells had an acute abdomen it was foreseeable that if cricoid pressure was not effective she was exposed to a risk of serious injury, his Honour considered if decompression using an NGT provided a practical and effective method of reducing the risk, then the exercise of reasonable care required Dr Juengling to use it.
However, it is significant that, on his Honour's findings, that foreseeable risk of serious injury applied to any patient with an acute abdomen who was to undergo an RSI. That is, any patient with an acute abdomen would be exposed to a risk of serious injury if cricoid pressure was breached. His Honour made no finding that for any anatomical or other reason Ms Wells was at greater risk that cricoid pressure might be breached. To that extent, Ms Wells stood in no different position to any other patient with an acute abdomen.
Notwithstanding that, his Honour did not find that, so long as it was practical and likely to be effective, an anaesthetist exercising reasonable care would always use an NGT to decompress the stomach of any patient with an acute abdomen who was to undergo an RSI. His Honour dealt with the question of when an NGT should be used later in his reasons.
At [249] his Honour referred to the evidence of Dr Gibbs to the effect that the relevant medical literature did not state that use of decompression by means of an NGT was mandatory before an RSI and that there was no consensus amongst anaesthetists as to whether it should be used or not. His Honour also referred to what he described as Dr Donnelly's contrary opinion. His Honour noted [250] that Dr Gibbs did not say the procedure was totally ineffective and nor did Dr Gibbs say that it was accepted medical practice not to decompress the stomach using an NGT before an RSI. His Honour concluded:
Upon a consideration of all of the evidence it seems to me that while decompression is not obligatory in all cases of a patient who has an acute abdomen and must undertake a rapid sequence induction, it is often employed, with good effect, more likely in cases where the stomach contents are liquid. In the end, it depends upon the circumstances of each case whether the procedure should be used.
…
In my opinion, the passing of a nasogastric tube would have safely and effectively decompressed the plaintiff's stomach.
To sum up on this issue, in my opinion the defendant breached his duty to take reasonable care of the plaintiff by failing to decompress her stomach by a nasogastric tube. I find that a reasonable anaesthetist in the defendant's position would have seen that in the circumstances of the plaintiff there was a risk of serious injury, if cricoid pressure failed, which although unlikely, was by no means far-fetched or fanciful. Further, the alleviating action of decompressing the plaintiff's stomach by use of a nasogastric tube was, in my view, practical and likely to be effective and not pose any undue risk to the plaintiff. Subject to what I will say shortly about causation, I am satisfied on the balance of probabilities that the defendant was negligent in failing to pass a nasogastric tube to empty the plaintiff's stomach [251] ‑ [254]. (emphasis added)
While the trial judge did not expressly reject the evidence of Dr Donnelly on the point, it appears clear that his Honour did not accept Dr Donnelly's view that decompression by means of an NGT is a 'necessary' step in an RSI ([235], (ts 134)) and that it was 'almost obligatory' as a matter of professional practice amongst anaesthetists ([239], (ts 95)). Rather, his Honour came to a finding which fell somewhat short of Dr Donnelly's view; namely, that whether such decompression should be undertaken depends upon the particular circumstances of the case. It is clear that his Honour did not consider such decompression was mandatory in every case of acute abdomen where the stomach contents were liquid.
But having found that it was 'the circumstances of [Ms Wells]' which required Dr Juengling, in the exercise of reasonable care, to decompress Ms Wells's stomach using an NGT, his Honour did not state what those particular circumstances were.
However, when regard is had to his reasons as a whole it is, I think, clear that his Honour considered that the relevant circumstance was that, as a result of the intravenous fluid she had received, Ms Wells's stomach contained a substantial amount of fluid, giving rise to an increased risk of serious injury, and that that was, or should have been, known to Dr Juengling before he commenced the intubation.
That his Honour took that view is apparent in the light of a passage earlier in his reasons, dealing with whether the use of an NGT was likely to be effective in reducing the risk of injury. His Honour said:
This takes me to the issue of whether the plaintiff had a full stomach. Mr Clyne strongly submitted that there was no evidence that the plaintiff had a full stomach and therefore decompression of the plaintiff's stomach would have been pointless and ineffective.
There was no evidence of the precise volume of the plaintiff's stomach contents. Dr Donnelly described the volume of the plaintiff's aspiration as 'massive' based on his interpretation of the plaintiff's x‑ray taken after surgery. Of course, Dr Donnelly's description was made with the benefit of hindsight. However, prior to the first attempted intubation of the plaintiff the defendant, knew or at the very least, ought to have known that the plaintiff had taken on 3 litres of intravenous fluid since she had been admitted to hospital. This was evident in the Rockingham‑Kwinana Hospital records. The defendant said in his evidence that he was aware that the emergency department had provided her with several litres of fluid and that she was 'near enough rehydrated'. While the defendant was aware that the plaintiff had vomited and had bouts of diarrhoea before the operation, he ought also have been aware that she had been administered anti‑nausea medication and morphine in the hospital's emergency department.
The evidence before me was that a literally full stomach has about 1.5 litres of fluid in it. There is no evidence to suggest that the plaintiff had a literally full stomach. But as the defendant himself said, the term 'full stomach' is a loose description used by anaesthetists to indicate anyone who might be at risk of aspiration: T 188. The defendant pointed out, that even in a fasted normal stomach there is 150 to 200 millilitres of fluid. While the plaintiff had not eaten, it could not be said that her stomach was normal because she had, as the defendant knew, an acute abdomen.
In my opinion, while it cannot be said that the plaintiff had a literally full stomach, she had in her stomach a sufficient volume of fluid which if regurgitated and aspirated had the potential to cause her serious harm. Further, I am of the view that the defendant should have appreciated this fact by reference to the hospital records that were made available to him and which he perused [245] ‑ [248].
His Honour's finding that Dr Juengling should have appreciated that Ms Wells had in her stomach a sufficient volume of fluid to cause serious harm if regurgitated and aspirated can only be understood as referring to the notation in the hospital records that Ms Wells had received three litres of intravenous fluid. It is also, I think, clear that his Honour considered that the fact Ms Wells had received the intravenous fluid was relevant to the likely contents of her stomach and therefore to whether a reasonably skilled anaesthetist would have decompressed her stomach using an NGT.
I might also observe in passing that it is not clear what his Honour meant by a 'sufficient volume of liquid … to cause her serious harm', there being no evidence as to any minimum level of fluid in the stomach which would be necessary to cause serious harm if regurgitated and aspirated. That is significant in a context where his Honour appears to have accepted the evidence of Dr Juengling that even in a fasted stomach some 150 ‑ 200 millilitres of fluid will remain.
It was submitted on behalf of Ms Wells that the trial judge's reference to Dr Juengling's knowledge of the three litres of intravenous fluid was not to be understood as a reference to Ms Wells's likely stomach contents, but was simply a reference to the fact that respondent was hydrated. That, it was said, was relevant because had Ms Wells presented as dehydrated Dr Juengling might reasonably have come to the view that she was highly unlikely to have any significant fluid in her stomach, but he could not reasonably do so in circumstances where she was hydrated.
I do not accept that submission. The specific finding of the trial judge as to Dr Juengling's knowledge of the three litres of intravenous fluid was made in the context of a consideration of whether an NGT was likely to be effective and of the risk to Ms Wells if she regurgitated and aspirated her stomach contents. There was no evidence as to the relevance of Ms Wells' level of hydration on the issue of decompression of her stomach and that was not a matter his Honour considered.
In my view, therefore, it is clear from his reasons that his Honour concluded, first, that decompression of the stomach of a patient with an acute abdomen who was to undergo an RSI is not mandatory but depends upon the circumstances of the particular case; secondly, that the (or, at least, a) material circumstance in this case was that Ms Wells had received three litres of intravenous fluid, resulting in a volume of fluid in her stomach that increased the risk to Ms Wells if she regurgitated and aspirated her stomach contents; thirdly, that before he commenced the intubation Dr Juengling should have known from the hospital records that Ms Wells had received that intravenous fluid and therefore of the increased risk; and fourthly, in the circumstances of that increased risk, the exercise of reasonable care by Dr Juengling required that he decompress Ms Wells's stomach using an NGT. In failing to do so, Dr Juengling was negligent.
There was, however, no basis in the evidence for a finding that the intravenous fluid Ms Wells had received would have found its way into her stomach or would otherwise have increased the risk to Ms Wells over and above any other patient with an acute abdomen. Indeed, that was never part of Ms Wells's case at trial and those matters were simply never canvassed in the evidence.
It follows, in my opinion, that his Honour's finding that in the circumstances the exercise of reasonable care required Dr Juengling to decompress Ms Wells's stomach using an NGT was based upon a misunderstanding of the evidence. That error is of such significance in his Honour's process of reasoning that the finding that Dr Juengling was negligent cannot stand. The appeal must therefore be allowed. It is unnecessary to consider the other basis upon which the appeal is brought.
It was submitted on behalf of Dr Juengling that if the appeal were allowed, it was open to this court to substitute its own finding for that of the trial judge. I do not agree. As I have mentioned, it seems that the trial judge did not accept the expert evidence of either Dr Donnelly or Dr Gibbs in its entirety as to when an NGT should be used, but reached (on what basis is not clear) a conclusion somewhere between their views, namely that whether before conducting an RSI a patient's stomach should be decompressed using an NGT depends upon the circumstances of the particular case. His Honour does not, however, describe the circumstances which would require that to be done either in general or in particular in respect of Ms Wells, other than the erroneous finding to which I have referred. Nor, as I have said, does his Honour explain how he came to view he did. I note, however, that his Honour did form the impression that while Dr Donnelly's clinical competence and experience were not in issue, he harboured strong feelings about the appellant's care of the respondent and tended to be dogmatic [227]. To what extent that impression may have influenced his Honour's view on this issue is not apparent.
In the circumstances, I do not think this court is in a position to make its own finding on the material before it. A determination of the issue will require a fresh evaluation of the expert evidence, and involve findings of fact and as to credibility that can only be made after hearing the witnesses at a trial. The matter must therefore be remitted to the District Court.
That raises the question of whether there should be a fresh trial of the matter as a whole or one limited to the issue on the appeal, namely, whether Dr Juengling was negligent in not using an NGT to decompress Ms Wells's stomach in the process of intubation. It is clear that the court has the power to order a new trial, either generally or limited to a particular issue or question in the action: Supreme Court Act 1935 (WA), s 59(3).
While each case will depend upon its particular circumstances, generally the starting point is that if there is to be a new trial it ought to be of the case as a whole unless the appellate court considers that more injustice would be done by setting the whole matter at large again: Pateman v Higgin (1957) 97 CLR 521, 527, 529; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458.
In this case, there are a number of factors which in my view point to a new trial limited to the issue which is the subject of the appeal. In the first place, the issues upon which Ms Wells was unsuccessful at trial involved allegations of negligence in respect of different and distinct acts or omissions of Dr Juengling and no complaint is made by Ms Wells about the findings made on those issues. Secondly, there is nothing to suggest that the error of the trial judge on this issue bears in any way upon his findings on any of those other issues. Thirdly, the costs of a limited trial will be substantially less than the costs of a trial on all issues, in circumstances where the amount in issue in the action is relatively small, the amount of the damages in the judgment entered for Ms Wells at trial being the sum of $60,000. Fourthly, there is nothing to suggest that such a course would cause any prejudice to either party.
In the circumstances, that is the course which I consider should be followed. There is no reason to reopen the action at large and it would be unjust to do so.
Unfortunate though it is, in my opinion the issue of whether Dr Juengling was negligent in not using an NGT to decompress Ms Wells's stomach must be remitted to the District Court for trial before another judge.

Conclusion

I would allow the appeal, set aside the judgment of the primary judge, and order a new trial before a different judge of the pleaded issue of whether Dr Juengling was negligent in failing to pass a nasogastric tube to empty Ms Wells's stomach in the process of intubation of Ms Wells.