Krishna v Loustos

[2000] NSWCA 272

CITATION:	KRISHNA v LOUSTOS [2000] NSWCA 272 revised - 13/10/2000
FILE NUMBER(S):	CA 40944/98; 40945/98
HEARING DATE(S):	22/06/2000
JUDGMENT DATE:	9 October 2000
PARTIES :	Venkata Bomareddy Krishna Noula Loustos
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 100; Handley JA at 101

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	1261/98 1260/98
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	A J Sullivan QC (Appellant) M J Finnane QC / A S Kostopoulos (Respondent)
SOLICITORS:	Yeldham & Associates (Appellant) Xenos Jordan (Respondent)
CATCHWORDS:	NEGLIGENCE - causation - conclusion on causation not supported by facts.
LEGISLATION CITED:	Compensation to Relatives Act 1897. Suitors' Fund Act 1951.
DECISION:	Appeal allowed with costs. In each matter verdict in favour of the Plaintiff is set aside and in lieu thereof there will be a verdict for the Defendant; the Plaintiff is to pay the Defendant's costs of trial. The Plaintiff is to have a certificate under the Suitors' Fund Act, if entitled.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40944/98
40945/98




SPIGELMAN CJ
MASON P
HANDLEY JA

Monday 9 October 2000



Venkata Bomareddy KRISHNA v Noula LOUSTOS

JUDGMENT

1    SPIGELMAN CJ: This Court has before it two appeals by Dr Venkata Bomareddy Krishna from a judgment of Goldring DCJ. His Honour found that Dr Krishna was liable to the Respondent, Mrs Noula Loustos, by reason of his negligence which materially contributed to the death of the Respondent’s husband, Mr Eric Loustos. The Respondent recovered damages both for nervous shock and in an action under the Compensation to Relatives Act 1897.

Facts

2    On 19 October 1990 at the Illawarra Private hospital, Mr Loustos underwent a discectomy and fusion of the C5-C6 vertebrae. The operation was performed by Dr Peter Moloney and occurred under general anaesthetic. Dr James Cowling was the anaesthetist. Following the operation, Mr Loustos was returned to his bed in Ward A, Room 2.2, between 3.30pm and 4.00pm on 19 October. Mrs Loustos, was present with her husband from about 4.45pm onwards.

3    Though the timing of events that occurred over the next two hours could not be determined precisely, it is clear that between 5.00pm and 6.30pm, Mr Loustos developed breathing difficulties. The Respondent’s evidence at trial said that Mr Loustos began to complain about breathing difficulties at 5.00pm. Further, according to the Respondent, by 6.00pm he was making strange sounds in his throat, had started to go red in the face and had started to sweat.

4    The Respondent gave evidence that from 5.00pm she attempted to attract the attention of the nursing staff but she considered that they did not take her requests for assistance seriously, though they did offer some help. Mr Loustos was given a spoon and some ice and cold water but could not swallow this. The nursing staff helped Mr Loustos to sit up and cough. Goldring DCJ, found the evidence of the Respondent generally convincing.

5    On the other hand, members of the nursing staff attending Mr Loustos, which included Sister Lauri and Sister Burke, indicated that at about 6.00pm, when both nurses checked Mr Loustos, his observations, and in particular his colour, were normal. Though they assisted Mr Loustos prior to 6.00pm, they did not indicate that anything was not normal at that time.

6    Notwithstanding the dispute as to when the Mr Loustos’s breathing difficulties began, it is clear that by 6.30pm, he was experiencing major respiratory difficulties. The evidence at trial was that some time between 6.15pm and 6.25pm, Sister Burke returned to Mr Loustos’s room and noticed that he was sweating and was redder in the face. His voice was hoarse and was significantly different from what it had been when she made her observation around 6.00pm. Mr Loustos was complaining about something stuck in his throat. The Respondent said he was sweating as if he was in a sauna. Sister Burke decided that something was wrong and went to the sister’s office to get suction equipment. She informed the nurse in charge of the ward at the time, Sister Jones, of the situation.

7    Sister Jones and Sister Burke returned to Mr Loustos asking the Respondent to wait outside. Just before she left, Mr Loustos held his wife’s hand and said “help me, I can’t breathe.” This was at 6.30pm.

8    Initially, Sister Burke and Sister Jones attended Mr Loustos. The attachment on the suction equipment was of the wrong type and Sister Burke had to return to the sister’s station for the correct one. Returning, she connected the equipment, inserted it into Mr Loustos’s nostril and began suction. A small amount was secreted.

9    Following this, Sister Lauri was fetched by Sister Jones, the time being somewhere between 6.30pm and 6.35pm. Sister Lauri observed Mr Loustos. Recalling that he had had a neck operation, she formed the view that something may have gone wrong causing an obstruction in the throat. She noted that his observations were fairly normal however he was having extreme difficulty speaking and was showing signs of cyanosis. Mr Loustos pointed to his throat and tried to say something that sounded like “lump”.

10    Goldring DCJ found that it was “most likely” that at this stage Sister Jones pressed the emergency button. Also at this stage, Sister Jones was directed by Sister Lauri to get the emergency trolley. Sister Lauri was of the opinion that this occurred later however the trial judge preferred, and placed a lot of weight on, the evidence of Sister Jones describing her as an “extremely impressive witness in all respects”.

11    Following this, Sister Lauri left the room. Sister Burke ceased to use the suction equipment and reassured him that a doctor was on the way. He said “I can’t breathe!”. The finding of the trial judge was that at the time Sister Lauri left the room, Mr Loustos’s breathing was “deteriorating rapidly” but had not yet stopped.

12    After leaving the room, Sister Lauri went immediately to the operating theatre suite and asked if a doctor was there. The Appellant, Dr Krishna, appeared almost immediately and returned with Sister Lauri to Mr Loustos’s room. According to Sister Lauri, she said that she told the Appellant that “One of Dr Peter Moloney’s patient’s has an obstruction in the throat.” The Appellant said that she said that Mr Loustos had “respiratory problems”. The Appellant recorded this in his notes, made the following day. Goldring DCJ preferred Sister Lauri’s evidence on this point. Sister Lauri and the Appellant returned to Mr Loustos’s room just after Sister Jones returned with the emergency trolley.

13    As will subsequently become clear, the findings in relation to the timing of events that follows is critical for the Appellant’s submissions on this appeal.

14    Sometime between 6.36pm and 6.38pm, while Sister Lauri was out of the room, Mr Loustos suffered respiratory arrest. The trial judge’s finding was:

“On the balance of probabilities, I find that the respiratory arrest occurred while Sister Lauri was out of the room, that is, some time between 1836 and 1838, when Dr Krishna arrived. In other words, more probably than not, complete obstruction of the trachea did not occur before 1836, and this is consistent with the evidence of the experts in emergency medicine.”

15    Goldring DCJ’s finding on when the Appellant entered the room with Sister Lauri was:

“I find that Dr Krishna entered Room 2 at between 6.38 and 6.40, no more than 1 minute after Mr Loustos stopped breathing and possibly less.”

16    Thus, the finding of Goldring DCJ on the time at which the appellant entered the room in relation to when the respiratory arrest occurred is not definitive. Conflicting reports of the timing of events were before his Honour at trial. The nursing staff were extremely busy and Goldring DCJ noted that “With very few exceptions, recollections of all witnesses as to time were estimates.” His Honour was, however, of the opinion that the times recorded later by ambulance service personnel were accurate.

17    The Appellant is not a specialist in emergency medicine. Rather, he is a specialist plastic surgeon. Just before he responded to Sister Lauri’s request for assistance, the Appellant had commenced the anaesthetising of his own patient in order to remove a needle tip from the patient’s finger. The patient had been booked into the operating theatre at 6.30pm on 19 October 1990.

18    The actions of the Appellant upon entering the room will be detailed below. At this stage it is sufficient to say that after entering Mr Loustos’s room, he immediately took the suction equipment. The Appellant was able to force Mr Loustos’s mouth open (his teeth had been clenched) but there were few secretions. Sister Lauri attempted to feel Mr Loustos’s pulse in his foot. There was no evidence that the Appellant attempted to observe Mr Loustos’s pulse.

19    The signs of respiratory arrest were now obvious. Mr Loustos was unconscious and his skin was cyanotic. Aware of the need to create an airway immediately, the Appellant asked for a laryngoscope. It was part of the equipment on the emergency trolley. In addition, the Appellant or Sister Lauri sent for oxygen.

20    Using the laryngoscope, the Appellant attempted to intubate Mr Loustos by inserting an endo-tracheal tube into his trachea. At this time, Sister Lauri went to assist Sister Jones bringing in the oxygen. Unable to locate her in the sister’s station, she went into the adjacent urology wing and spoke to Sister Harper asking for her to come to assist with any doctors who could be found. Sister Harper said the time was then 6.45pm, although this could not be confirmed.

21    When Sister Harper entered the room, the Appellant was still attempting intubation. Mr Loustos was cyanosed, his eyes were open, fixed and dilated. He was clenching his fists. His femoral pulse was “feeble”. Sister Harper prepared ECG monitoring equipment in order to monitor Mr Loustos’s heart.

22    Following this, Dr William Watt arrived. Dr Watt is a urologist who came to assist after finishing his case in theatre. When the Appellant had arrived with Sister Lauri, Sister Burke and another nurse, Nurse van Veen, moved the other patients out of Mr Loustos’s room. Sister Burke then left to call ambulance paramedics. Sister Lauri, however, arrived and took the telephone from Sister Burke. Initially, Sister Lauri attempted to contact Dr Moloney, at first, unsuccessfully, at his home and then at Wollongong hospital. She asked him to come urgently. She then called Dr Cowling. Finally, she telephoned the ambulance. That call was recorded to have been made at 6.48pm.

23    The evidence that Goldring DCJ accepted was that Sister Lauri did not leave to go to the telephone until after Dr Watt arrived. Dr Watt gave evidence at the Coroner’s Inquest that he arrived at 6.50pm; the hospital records showing that the patient left the theatre at that time. Thus, as the trial judge found, Dr Watt may have left a few minutes before 6.50pm reaching Mr Loustos’s room within a minute of leaving the theatre. Goldring DCJ accepted that “he arrived at between 1845 and 1852”.

24    Accordingly:

“Dr Krishna had therefore been in the room with Mr Loustos for at least 5, and possibly as much as 14 or 15 minutes before any other medical practitioner arrived. Most probably the period was between 5 and 10 minutes. Sister Jones said that he was there on his own for 5 minutes… .”

25    Dr Watt attempted to intubate Mr Loustos using the laryngoscope and the endo-tracheal tube. At some stage, the Appellant began cardiac massage. Dr Watt, too, was unsuccessful. At 6.54pm the ambulance paramedics arrived and the Appellant and Dr Watt handed over to them. They also, unsuccessfully, attempted intubation. The Appellant continued cardiac massage.

26    After Dr Watt’s arrival but before the paramedics arrived, the Appellant opened the wound which was made during Dr Moloney’s operation on Mr Loustos. He did this to relieve pressure of swelling around the wound. There was little blood flowing from the wound. Goldring DCJ found that though the Appellant couldn’t recall and there was nothing in his notes, by this time the Appellant “was aware that there was an obstruction, and probably that this was due to a post-operative complication”.

27    At 7.00pm Dr Cowling arrived and attempted intubation. After an unsuccessful attempt, he said that a tracheostomy was required. Dr Michael Meagher and Dr Timothy Skyring had just arrived from the urology wing. A tracheostomy tray was brought quickly from the operating theatre and Dr Meagher, assisted by Dr Skyring, performed an emergency tracheostomy.

28    The tracheostomy was performed by about 7.05pm, taking about a minute. The procedure was relatively quick as the trachea was able to be accessed through the incision originally made by Dr Moloney and re-opened by the Appellant.

29    Shortly after the tracheostomy, Mr Loustos’s heart and circulation began to function. His colour changed and his heart began to beat regularly. Oxygen was given through the airway created by the tracheostomy. Nevertheless, he remained unconscious. He was attached to a life support system and taken by ambulance to Wollongong Hospital accompanied by the Respondent and Sister Harper.

30    He remained at Wollongong Hospital in this state until 24 October 1990. On that day, he was pronounced brain dead and, in the presence of the Respondent, the life support system was switched off and Mr Loustos died. The Respondent had remained with her husband until the system was turned off except for a couple of hours when she went home to change.

31    Mr Loustos died from hypoxia. Dr Moloney re-examined Mr Loustos while he was in Wollongong Hospital finding a haematoma and oedema which had obstructed Mr Loustos’s trachea preventing him from breathing. As Goldring DCJ found, hypoxia

“… can have serious and permanent adverse effects on the brain, and more probably than not was the cause of Mr Loustos’s brain damage and consequent death.”

Trial

32    The Respondent brought action for damages for “nervous shock” as a result of what she witnessed of the events surrounding her husband’s death. She also brought an action under the Compensation to Relatives Act 1897.

33    Duty of care was not in issue. Counsel for the Appellant conceded at trial that a duty of care was owed.

34    Three breaches of the Appellant’s duty were alleged at trial. These were:

“(a) failure to carry out an emergency tracheostomy after early attempts at intubation failed;
(b) continuing to attempt intubation when he knew the deceased’s condition was becoming critical and that he would die unless an airway were established;
(c) failure to diagnose the post-operative haematoma or oedema which caused the obstruction in the trachea.”

35    Goldring DCJ reasoned that the determination of whether the Appellant breached his duty of care depended on the answer to three questions. These questions were:

“1. How long was it reasonable to continue to try attempts at intubation?
2. Is it necessary to move to surgical creation of an airway if intubation fails, and if so, after how long?
3. How long, in fact, was Dr Krishna attempting to create an airway after Mr Loustos stopped breathing effectively?”

36    The timing involved in the Appellant’s use of suction and intubation are relevant to the question of breach of duty. However, they are particularly relevant to the Appellant’s submissions dealing with causation.

37    The acts of negligence alleged in (a) and (b), set out in para 34 above, are related. Goldring DCJ concluded that the procedure to follow was:

“…where a qualified medical practitioner encounters a patient who appears to have stopped breathing, his or her duty is to ensure that the patient has an airway, and to do this first by removing obstructions, if that is possible, including removal of secretions by suction, and then, if this fails, by intubation. Further, if intubation fails after a relatively short time, there is a duty to create an airway surgically.”

38    Both before the trial judge and on this appeal reference was made to the fact that the Appellant was not a specialist in emergency medicine. There is no reason to doubt his Honour’s conclusion that:

“… the expert evidence that I accept is that knowledge of emergency airway management, including the availability of surgical creation of an airway as a matter of last resort, is part of the standard array of skills and knowledge that the community is entitled to expect of every legally qualified medical practitioner.”

39    In relation to the negligence alleged in (c), set out in para 34, his Honour held that, again, notwithstanding that the appellant was not a specialist in the field, he was aware that Mr Loustos had undergone an operation on his cervical spine and that Sister Lauri had told him that she diagnosed an obstruction. Accordingly:

“Any legally qualified medical practitioner would reasonably be expected to anticipate swelling around the site of a surgical procedure. Such a person would also be expected to know that the C5-C6 cervical discs are very close to the trachea. Knowing these two things, a doctor, after unsuccessfully attempting to intubate, should have considered, within the short time available, that post-operative swelling, whether caused directly by the trauma of surgery, or, as in this case, by a post-operative haematoma, might possibly obstruct the trachea or otherwise impede intubation.”

40    His Honour found that the Appellant breached his duty owed to Mr Loustos.

41    Turning to causation, Goldring DCJ adopted Dr John Vinen’s classification of hypoxia. Dr Vinen was the expert witness in emergency medicine called by the respondent. The first stage was “within a minute or so” of respiratory arrest when “if breathing and circulation are restored, the patient will almost certainly survive with no brain damage.” The second stage was between 1 to 5 minutes after arrest, depending on certain factors, when the patient has “a good chance of recovery without serious brain damage”. The third phase was after 3-5 minutes (depending on the factors in stage 2) when the “chance of recovery either at all, or without serious impairment to brain function, is slight.”

42    In relation to stage two, his Honour found that the chance of recovery depends:

“…on a number of factors, including the levels of oxygenation of the blood at the time of the arrest. All the experts agreed that in the case of Mr Loustos, these levels were clearly low. Therefore this phase would last no more than 1 to 3 minutes in a case such as his .” (Emphasis added)

43    Initially, the Appellant attempted to clear Mr Loustos’s airway by suction. Following this, he attempted to intubate him. As found by the trial judge, the question to be answered in order to determine whether a breach occurred was whether the appellant should have performed an emergency tracheostomy on Mr Loustos and, if so, after how long a period of attempted intubation.

44    His Honour found that the Appellant reached Mr Loustos when Mr Loustos “had not reached the third phase I have described, but most probably was in the first or early second phase.”

45    Certain critical findings were set out under the heading “How long was Dr Krishna trying to intubate?”.

“Dr Krishna, on arrival, found Mr Loustos was pinkish-blue in colour, unconscious and had shallow respirations with clenched teeth. These are indications of what Dr Vinen described as the second stage of respiratory failure, and should indicate to any legally qualified medical practitioner that there was respiratory failure. Dr Krishna in fact made this diagnosis. I have found that at the estimate of time most favourable to him, Dr Krishna was with Mr Loustos for 5 minutes. The evidence was that he took some time to assess Mr Loustos’s condition, and that he then applied suction, which was in accordance with standard practice and perfectly proper. These processes would have taken 2 or 3 minutes. He then attempted to intubate, which was also perfectly proper. The issue is, when should he have ceased to attempt intubation and resorted to surgery?
In the circumstances, once Dr Krishna, alone with the rapidly deteriorating Mr Loustos, failed to intubate within 3 minutes of arrival in the room, he had a chance of preserving Mr Loustos’s life only if he resorted to surgery. Once more than 2 or 3 minutes had passed after his arrival, in the circumstances which I find to exist in this case, the chance of Mr Loustos surviving with a meaningful brain function was lost”.

46    The standard of conduct against which Dr Krishna’s actions were to be judged had however, been set out in an earlier passage as follows:

“… any legally qualified medical practitioner who finds a patient with respiratory arrest must attempt intubation. Where it is possible for 2 practitioners to attempt intubation, each should try, within the time constraints. If this does not succeed within a very short time, possibly as short as 1 minute and certainly no more than 2, then resort must be had to creating an airway artificially.”

47    The evidence of Dr Vinen was that it was “perfectly reasonable” to attempt intubation. In relation to how long should be spent attempting intubation, Dr Vinen said:

“… if you want me to put a time to it, at most a minute or so.”

48    The trial judge held that the evidence of the expert witnesses in emergency medicine called for the Respondent, Dr John Raftos and Dr Gordian Fulde “was not inconsistent with this.”

49    Accordingly, his Honour found that since the Appellant at no stage attempted to create an airway surgically, by performing an emergency tracheostomy, within the relevant time frame of stage 2, his breach contributed to Mr Loustos’s damage by increasing the risk of brain damage which, ultimately, lead to his death.

50    His Honour’s conclusion with respect to both breach of duty and causation was in the following terms:

“In this case, I find that if Dr Krishna had performed an emergency tracheostomy within 1 or 2 minutes of arriving in the ward, there is, on the evidence given by Dr Vinen, with who, I take Dr Raftos to agree on this point, given my finding that Mr Loustos’s respiration had ceased within the previous minute, a greater probability than not that Mr Loustos would have survived without brain damage. Therefore:

· Dr Krishna owed a duty of care to Mr Loustos to attempt to restore an airway as soon as possible, to diagnose an obstruction to the trachea, and in any event to resort to surgery when intubation failed to create an airway.

· It was reasonably foreseeable to a legally qualified medical practitioner that failure to create an airway would lead to hypoxia.

· Dr Krishna broke this duty, and the breach of duty was a causal factor in Mr Loustos developing the hypoxia from which he died.

· The breach of duty removed any chance of survival Mr Loustos might have had at the time Dr Krishna was summoned to his presence. It is immaterial that Mr Loustos would have died almost certainly if no doctor had come to him within 5 minutes of the time he ceased breathing.

Dr Krishna is therefore liable.”

51    In the course of finding for the Respondent, his Honour held that “once more than 2 or 3 minutes had passed after his arrival … the chance of Mr Loustos surviving with a meaningful brain function was lost”. The difference between the two to three minutes in this statement and the one to two minutes in the conclusion on liability is, as I understand the position, a reference to the one minute which an emergency tracheostomy would take.

52    Goldring DCJ concluded, therefore, that the negligence of the Appellant caused Mr Loustos’s death. Accordingly, in both actions against him the Respondent succeeded.

Grounds of Appeal

53    The Appellant appeals from Goldring DCJ’s findings on breach of duty and causation. In both appeals, the grounds of appeal are the same. Four grounds are pressed: two relate to breach of duty and two relate to causation. The grounds are:

“1. His Honour erred in finding that the Appellant breached any duty of care which he owed to Mr Loustos.

2. His Honour’s Finding (at page 38 of the Judgment) that the appellant breached the duty of care which he owed to Mr Loustos by failing to perform an emergency tracheostomy within one or two minutes of arriving in the ward:


(a) was not available on the evidence;

(b) is inconsistent with, and indeed contradicted by, his Honour’s own express factual findings of the propriety of the appellant’s conduct upon arriving at the ward and the reasonable length of time necessitated by that conduct before embarking upon an emergency tracheostomy.


3. His Honour erred in finding that any part of the respondent’s loss or damage was caused by any negligent conduct on behalf of the appellant.

4. His Honour’s findings on causation are:

(a) unsustainable on his own factual findings;

(b) inconsistent with, and contradicted by, his own factual findings;

(c) not supportable on the evidence.”

Causation

54    The thrust of the Appellant’s submission on causation, and on which he also relied on the issue of breach, was that his Honour’s findings of fact on the timing of the Appellant’s actions contradicted and could not support his Honour’s conclusion. The central factual finding is that the Appellant ought to have performed an emergency tracheostomy within one or two minutes of his arriving in the ward. This is based on his Honour’s earlier finding to the effect that respiratory arrest occurred within the minute before the Appellant’s arrival.

55    The key step in the Appellant’s submissions was that it was appropriate for the Appellant to take two to three minutes after entering the room to assess for Mr Loustos’ condition and to attempt suction. If that were so then it was impossible, it was submitted, to conclude that an emergency tracheostomy should have been done within one to two minutes.

56    In my opinion the Appellant’s submissions are based on a misunderstanding of his Honour’s findings. The relevant sentence is “The processes would have taken 2 or 3 minutes”. The Appellant’s submission assume that the words “would have” mean “should have” rather than “did in fact”. If his Honour intended the words in the latter sense then there is no contradiction. I have set out above the whole of the passage in which these words appear. In the sentences immediately before and after this sentence his Honour indicated that the actual actions of the Appellant were “perfectly proper”. The Appellant’s submission requires the Court to find that the slightly ambiguous phrase “would have taken” was also intended as a reference to propriety. I do not believe it was. The sentence before his Honour identified the total period of time that the Appellant was with Mr Loustos was, on a certain basis, five minutes. The reference to “2 or 3 minutes” identified the period of time that the first two steps in fact took.

57    On this basis his Honour’s findings of fact on causation should not be disturbed by this Court.

58    The Appellant also points to a second area of inconsistency in his Honour’s reasons. These relate to the critical interconnection between the precise time that Mr Loustos suffered respiratory arrest and the time of Dr Krishna’s entry into the room. The relevant findings are:

“(i) On the balance of probabilities, I find that the respiratory arrest occurred while Sister Lauri was out of the room, that is, some time between 1836 and 1838, when Dr Krishna arrived. In other words, more probably than not, complete obstruction of the trachea did not occur before 1836, and this is consistent with the evidence of the experts in emergency medicine”.
(ii) “I find that Dr Krishna entered Room 2 at between 6.38 and 6.40, no more than 1 minute after Mr Loustos stopped breathing, and possibly less”.

59    There is inconsistency in these findings of primary fact. Passage (i) suggests that respiratory arrest occurred between 6.36pm and 6.38pm, whereas passage (ii) suggests that this could not have happened before 6.37pm. Passage (i) suggests that the Appellant entered the room at 6.38pm, whereas passage (ii) states that he did so between 6.38pm and 6.40pm.

60    I have not found it possible to reconcile these inconsistencies. If one accepts what I have described as the “statements” rather than the “suggestions”, then the Appellant entered the room at any time between zero and four minutes after respiratory arrest occurred.

61    The express statement in passage (ii) that the Appellant entered the room within 1 minute of respiratory arrest does not refer to a range. It is this latter finding which becomes central in his Honour’s reasons.

62    It is not clear how his Honour came to a conclusion by which he referred to specific times. None of the evidence appeared to point in this direction. As his Honour indicated on a number of occasions in his judgment, and as can readily be appreciated in the emergency context of the events of that day, no witness was able to give evidence of sufficient precision with respect to clock time to justify a finding of fact of this precision. I can only surmise that his Honour was expressing a conclusion in only general terms so that some form of chronology would appear.

63    Of decisive significance it seems, is his Honour’s findings in the balance of the second of the two sentences I have just quoted with respect to the time at which “Dr Krishna entered Room 2” in which his Honour went on to say:

“… no more than 1 minute after Mr Loustos stopped breathing, and possibly less.”

64    This is the finding to which his Honour refers in the passage constituting the conclusion on liability which I have set out in full above.

65    To similar effect is his Honour’s further statement that “… given my finding that Mr Loustos’s respiration had ceased within the previous minute …”.

66    Goldring DCJ did not give any reasons for his conclusion that the Appellant arrived within a minute of respiratory arrest. Specifically he gave no indication that any aspect of the evidence concerning Mr Loustos’ physical condition enabled him to identify the time of entry of the Appellant with such a degree of precision.

67    Although no definite time was able to be determined of when, exactly, the Appellant entered the room, there was evidence on which Goldring DCJ could make findings of when the Appellant entered the room relative to when the respiratory arrest occurred.

68    At trial, Sister Jones, on whose evidence his Honour placed much weight, did not specify a time which indicated when the Appellant arrived into the room with Sister Lauri relative to when she, Sister Jones, returned to the room having fetched the emergency trolley and oxygen. Sister Jones said:

“I went and collected the emergency equipment which was up at the same corridor and returned with the emergency trolley and the oxygen and I placed it beside the bed and after I did that Dr Krishna was there with Sister Lauri.”

69    Sister Burke was present in the room throughout the critical events. According to her evidence what happened while she was alone with Mr Loustos is as follows:

“I recall standing by the bed with the suction gear there. I had stopped suctioning and I held Mr Loustos’s hand and spoke to him, told him to stay calm and to think of the most beautiful thing he could in his life and that help was on the way, and then I recall Dr Krishna arriving and he grabbed the suction gear and started to suction Mr Loustos.”

70    Counsel for the Appellant directed the Court’s attention to a portion of the evidence at trial of Sister Burke which referred to a supplementary statement she made in May 1992 in which she said:

“This time Dr Krishna arrived and his arrival was no more than thirty secs after Mr Loustos had stopped breathing.”

71    There was, accordingly, evidence of some character which could support his Honour’s finding in respect of the Appellant’s arrival into the room relative to when Mr Loustos stopped breathing.

72    Earlier in his reasons, his Honour said that when the Appellant entered the room, Mr Loustos:

“… most probably was in the first or early second phase”.

73    The reference by Goldring DCJ to “the first or early second phase” comes, as previously mentioned, from the adoption by his honour of Dr Vinen’s classification of respiratory arrest into stages. His Honour’s complete finding on this point was:

“At the first stage, that is within a minute or so of respiratory arrest, if airway, breathing and circulation are restored, the patient will almost certainly survive with no brain damage. If the airway, breathing and circulation are restored within the second phase, that is, 1 to 5 minutes after arrest, the patient has a good chance of recovery without serious brain damage, depending on a number of factors, including the levels of oxygenation of the blood at the time of arrest. All the experts agreed that in the case of Mr Loustos, these levels were clearly low. Therefore this phase would last no more than 1 to 3 minutes in a case such as his. In phase 3, that is, after 3-5 minutes, depending on the factors mentioned, the chance of recovery either at or, or without serious impairment to brain function, is slight.”

74    Before this Court, there was some disagreement in relation to a particular aspect of that finding by his Honour. That was his Honour’s reference, in relation to the second phase, which his Honour said went, in general, from “1 to 5 minutes after arrest”. This phase in Mr Loustos’s case “would last no more than 1 to 3 minutes”. The contention was about the meaning of “1 to 3 minutes” and whether it meant that in Mr Loustos’s case, the second phase commenced one minute after respiratory arrest and went for three minutes, so that the second phase ended four minutes after arrest, or whether it went only for two minutes, so that it finished three minutes after respiratory arrest.

75    In the circumstances of this appeal, this is an important distinction. Whether stage two went for two and not three minutes was very relevant in order to determine the consistency of his Honour’s conclusions. This problem can best be resolved by looking at the evidence which was presented at trial.

76    The starting point is the cross-examination of Dr Vinen where the following exchange occurred:

“Q Doctor, I was asking you some questions about the various phases following respiratory malfunction. If I can refresh your recollection, would you agree with this, that after the complete obstruction starts you have previously described three phases, the first phase, ‘lasting one to three minutes where the patient is conscious with choking, struggling paradoxical respiration without air flow or the ability to speak, increased blood pressure and includes supraclavicular … absent breathing sounds and cyanosis’?
A Yes.
Q The second phase being ‘at two to five minutes, loss of consciousness, decreased respiratory effort, depressed blood pressure, depressed pulse’ and the third phase, ‘after four to five minutes, coma, absent vital signs, pupils dilated and cardiac arrest’?
A Yes.”

77    In Dr Vinen’s evidence, however, there were no statements by him where he originally put forward these propositions. Just before the above exchange, Dr Vinen was asked:

“Q Would I be correct in saying that the stages comprise-you tell me what is the first stage?
A Can I refresh my memory of them? I am aware of them but I would like to ---
Q You cannot remember?
A I do remember, but as I have indicated, I would rather do it carefully than rely on my memory.”

78    It appears, perhaps, that Dr Vinen had either written a report with the stages in it or had given evidence of them at the inquest. In the materials provided to this Court, however, the oral evidence of Dr Vinen is all that is available. The propositions put forward in cross-examination to which Dr Vinen responded “Yes” are, in fact, the stages of Dr Vinen which Goldring DCJ approved.

79    The relevant statement is that stage 2 arises “at two to five minutes”.

80    Other evidence of Dr Vinen supports the argument of Mr Sullivan QC, who appeared for the Appellant, that Goldring DCJ was saying that the second phase, in the case of Mr Loustos, commenced at the start of the second minute and went for two minutes until the end of the third minute “after the complete obstruction starts”.

81    Early in his evidence, Dr Vinen had given evidence as follows:

“Q Is there what could be called a critical time period for restoring air?
A Well, it is generally accepted that three to four, perhaps maximum five minutes is a crucial time period. Obviously the earlier the restoration of the oxygen supply the better the outcome.
Q When we say three to four to five minutes, I suppose I should make it clearer. I am sure we are talking about the same thing; that is three to four minutes after the patient has stopped breathing?
A That is correct. Once the oxygen levels start decreasing below life levels.”

82    This indicates the time period of stage two, three to five minute after arrest, after which, using the words of Goldring DCJ “recovery either at all or, or without serious impairment to brain function, is slight”. In the case of Mr Loustos, the time frame for this stage was the minimum of that period due to his pre-existing condition. His Honour’s finding in this regard is consistent with the evidence of Dr Vinen who noted:

“Mr Loustos was cyanosed and by definition he must have had a very low oxygen content in his blood prior to that respiratory arrest, so that would actually lessen the time available to actually salvage the situation.”

83    During the course of submissions Mr Finanne QC, counsel for the Respondent, made reference to the possibility of some form of a life in the sense of pulse or heart beating or other indications after this stage but nevertheless accepted that the present case turned on the proposition that the failure to administer the tracheostomy within the period identified by Dr Vinen was the deceased’s last chance of survival.

84    Dr Fulde, in relation to the general time frame to prevent brain damage, said:

“It depends, as you said, if it is a sudden occlusion, and once again I say if a patient has arrested you don’t know what they have arrested from most of the time, you make certain assumptions, then the critical issues are oxygen to the brain, the brain cannot survive without oxygen. Other things like the heart can for some time. So the main exercise is to prevent brain damage, brain death, and the teaching is three to five minutes of no oxygen is as much as the brain can handle, then the brain dies.”

85    Towards the end of Dr Vinen’s cross-examination, after a series of questions, it was said:

“Q Using your figure of two to three minutes and three to five minutes?
A Yes.”

86    Dr Vinen was asked about the time period in re-examination:

“Q You then were asked about the three to five minutes that you would have to restore a patient?
A Yes.
Q When would that have started?
A Well, in most circumstances it starts at the time that respiration ceases or obstruction is complete. In this case it is apparent that Mr Loustos in fact was hypoxic for a period of time prior to that occurring. In fact he was cyanosed when Dr Krishna arrived, so therefore he was already oxygen depleted and therefore his oxygen reserves would be lower than the patient where obstruction occurred straight away. Therefore his condition would already be compromised at the time that Dr Krishna arrived.”

87    In my opinion, the passage of Goldring DCJ quoted above should be understood in accordance with the Appellant’s submission that when his Honour said “1 to 3 minutes”, this referred to a two minute time period which commenced at the start of the second minute after respiratory arrest.

88    As I have set out above, the evidence of the stages of respiratory arrest meant that in the case of Mr Loustos, unless he received an emergency tracheostomy which was completed within three minutes after the commencement of respiratory arrest, then he had lost any meaningful chance of survival. This must be considered with the finding of fact that when the Appellant arrived, Mr Loustos was in late first or early second stage of respiratory arrest.

89    According to Goldring DCJ, the sequence of procedure that is appropriate to be followed in such a situation is, firstly, observation and suction, then intubation and, if necessary, emergency tracheostomy. It is useful to work backwards through his Honour’s findings of the timing of these procedures. The appropriate time to take for an emergency tracheostomy was found to be one minute. Intubation, his Honour found, should take about “1 minute and certainly no more than 2”.

90    The initial stage was discussed by Goldring DCJ in his approval of the experts’ evidence relating to the “ABC” principles: airway, breathing and circulation. His Honour said:

“After assessment of the patient by observation and in the light of the available information, the first step is to ensure the patient’s airway is not obstructed by a foreign body, the tongue, saliva or mucus. It is standard practice to use suction equipment to remove any secretions.”

91    The question is, then, how long should assessment and suction, have taken? I repeat what I said above that his Honour did not say that this should take two to three minutes. Rather, his Honour was indicating that the Appellant, in fact, took two to three minutes. Though the Appellant’s actions in assessment and suction was “in accordance with standard practice and perfectly proper” no definitive time was set out saying how long this step should last.

92    In re-examination, Dr Vinen was asked about the period of time which was available to act in order to prevent the onset of brain damage in Mr Loustos.

“Q In this case assuming he was in this phase two, does that mean perhaps only two minutes left?
A Perhaps one, perhaps two, perhaps a fraction more, but not much more.”

93    Given that this time frame includes intubation and the emergency tracheostomy, then it would appear that this allows very little time for assessment and suction. Earlier, Dr Vinen was asked whether it was reasonable for the Appellant to spend “one or two minutes trying to get an assessment or feeling for the whole thing”. Dr Vinen’s response was:

“Yes, but I think whilst doing that you would be putting oxygen on the patient and doing other things it takes - the critical thing really is to take control of the situation.”

94    Dr Raftos said in evidence:

“I would have thought that a reasonable assessment would have taken certainly a minute, probably two.”

95    In relation to suction Dr Raftos said:

“To take the sucker, open the mouth which was clenched, once again would take minimum thirty seconds and them upwards of a minute perhaps.”

96    Dr Skyring, who assisted in the performance of the eventual tracheostomy, gave evidence relating to a period of two to three minutes which:

“… includes the time I was called, time I assessed the patient and the time I tried to intubate.”

97    According to Dr Cowling, it was reasonable to spend “Probably less than a minute” clearing the airway. In response to a question of for how long the Appellant should have taken to assess Mr Loustos’ condition, Dr Cowling said:

“In this patient I think probably only a minute or two because he is obviously suffering cardio respiratory arrest.”

98    The evidence least favourable to the Appellant in terms of time was that assessment and suction should take one minute. Accordingly, in my opinion, even if the Appellant had followed the sequence of steps as outlined by Goldring DCJ including the performance of an emergency tracheostomy, by the time that an airway was established, Mr Loustos would have moved into the third stage of respiratory arrest from which the likelihood of recovery “either at all or, or without serious impairment to brain function, is slight”.

99    In my opinion, for these reasons, the appeal should be allowed with costs. In each matter the verdict in favour of the Plaintiff should be set aside and in lieu thereof there should be a verdict for the Defendant; the Plaintiff should pay the Defendant’s costs of trial. The Plaintiff should have a certificate under the Suitors’ Fund Act 1951, if entitled.

100    MASON P: I agree with the Chief Justice.

101    HANDLEY JA: I agree with the Chief Justice.

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