Langley and Warren v Glandore Pty Ltd and Thomson

[1997] QCA 342

IN THE COURT OF APPEAL	[1997] QCA 342
SUPREME COURT OF QUEENSLAND

Appeal No. 10784 of 1996

Brisbane

[Langley and Warren v. Glandore P/L (In Liq)]

BETWEEN:

NOEL F. LANGLEY

(Second Defendant)

and

JOHN R. WARREN

(Third Defendant) Appellants

AND:

GLANDORE PTY LTD (In Liquidation)

(ACN 009 711 979)

(First Defendant) Respondent

HEATHER ELIZABETH THOMSON

(Plaintiff)

Macrossan CJ
Williams J

Byrne J

Judgment delivered 3 October 1997

Joint reasons for judgment of Macrossan CJ and Byrne J. Separate reasons of Williams J concurring
as to the orders made.
ASSESSED WITH COSTS OF AND INCIDENTAL TO THE ACTION (INCLUDING
RESERVED COSTS, IF ANY) TO BE TAXED.

ORDERS NUMBER 3 AND 4 OF 22 NOVEMBER 1996 SET ASIDE. ANY FURTHER ORDERS TO BE MADE CONSEQUENT UPON THE MAKING OF THESE ORDERS TO BE RESERVED TO THE TRIAL JUDGE AND THE FURTHER DETERMINATION OF THE CONTRIBUTION PROCEEDINGS BETWEEN THE APPELLANTS AND RESPONDENT REMITTED TO THE TRIAL JUDGE FOR DETERMINATION.

PARTIES TO THE APPEAL TO HAVE 21 DAYS FROM THE DATE OF DELIVERY OF THIS JUDGMENT TO MAKE WRITTEN SUBMISSIONS TO THIS COURT ON THE FORM OF THESE ORDERS, OTHERWISE THESE ORDERS TO STAND AS THE FINAL ORDERS OF THIS COURT IN THE APPEAL.

CATCHWORDS:	NEGLIGENCE - medical negligence - contribution between tortfeasors - liability for damage caused as a result of a surgical sponge left inside patient’s body - jury found surgeon and assistant surgeon liable for negligence - whether nurses who performed count of sponges before and at the end of the operation had acted negligently so that the hospital as employer of the nurses should also have been found liable for negligence.
APPEAL - verdicts - perverse verdicts - whether no basis upon which a reasonable jury could have failed to find negligence against the hospital - whether court should substitute a contrary verdict in favour of the party who had the onus of proof at trial - whether apportionment of liability should be determined by the trial judge.
PRACTICE AND PROCEDURE - parties - whether verdict against

the plaintiff could be set aside and contribution

orders made when plaintiff not a party to appeal.

Hocking v Bell (1945) 71 C.L.R. 430
Baird v Magripilis (1925) 37 C.L.R. 321
Conrad v Chermside Hospital Board [1982] Qd R 242

Evans v Davies [1991] 2 Qd R 498

Counsel:	Mr N.M. Cooke QC with him Mr D.H. Tait for the appellants Mr D.B. Fraser QC for the respondent
Solicitors:	Flower and Hart for the appellants Ebsworth and Ebsworth for the respondent
Hearing Date:	30 July 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10784 of 1996

Brisbane

Before Macrossan CJ
Williams J
Byrne J

[Langley and Warren v. Glandore P/L (In Liq)]

BETWEEN:

NOEL F. LANGLEY

(Second Defendant)

and

JOHN R. WARREN

(Third Defendant) Appellants

AND:

GLANDORE PTY LTD (In Liquidation)

(ACN 009 711 979)

(First Defendant) Respondent

HEATHER ELIZABETH THOMSON

(Plaintiff)

JOINT REASONS FOR JUDGMENT - MACROSSAN CJ AND BYRNE J.

Judgment delivered 3 October 1997

The respondent, who conducted a private hospital, and the two appellants, medical

practitioners, were sued by the plaintiff for damages for negligence in connection with surgical

procedures, advice and treatment. The plaintiff recovered judgments against the appellants but failed
in her action against the respondent.

The plaintiff’s action was tried with a jury. Associated with the plaintiff’s claim there were

contribution issues raised between the appellants and the respondent but as a result of elections made

by the parties and rulings made by the trial judge the contribution issues did not go to the jury for their

determination. As it turned out, since the respondent was successful in the action and judgment was

entered for the respondent against the plaintiff, no contribution orders were made. The appellant,

Langley, the principal surgeon at an operation the plaintiff had undergone, and the appellant Warren,

his assistant at that operation, had judgments for different amounts entered against them in the plaintiff’s

favour in accordance with the answers the jury returned. The jury’s answer finding in favour of the

respondent on the negligence claim and the resultant failure of the appellants’ contribution claims against

the respondent lead to the present appeal.

The appellants’ contention is that there was no basis upon which a reasonable jury could, in

the circumstances, have failed to find negligence against the respondent so that the verdict of the jury

should in that respect be set aside with consequent contribution orders made in favour of the appellants

against the respondent. The appellants’ notice of appeal sought no more than this but in the course of

the appeal hearing it emerged that the limited claim for relief in the notice of appeal raised a procedural

problem for the appellants since they would be entitled to a contribution order only if the respondent

were held liable for negligence at the suit of the plaintiff: see s.5(c) of the Law Reform (Tortfeasors

Contribution, Contributory Negligence and Division of Chattels) Act 1952 (now s.6(c) of the Law

Reform Act 1995) and Unsworth v. Commissioner for Railways (1958) 101 C.L.R. 73, at 87, 88, 94,

95.

The plaintiff was not made a party to the appeal and was not served with the notice of appeal when the appeal was instituted. This obstacle standing in the way of the relief which the appellants sought permitted the raising of an objection which was in essence, technical, and steps have

subsequently been taken, as will later be described, to deal with the situation. Accordingly, if it is held

that the appellants are able to show that judgment should also have been entered against the respondent,

the way will be open for an order to be made for contribution between the appellants and the

respondent.

The central event giving rise to the plaintiff’s negligence action was a surgical operation called

a total abdominal hysterectomy. It was carried out in the respondent’s hospital at Mt Isa on 22

February 1990. After the operation was concluded an absorbent pack referred to as a sponge, which

had been introduced in the course of the operation, was left inside the plaintiff’s abdomen. It was only

after its presence had caused painful symptoms to manifest themselves that its presence was discovered

and it was removed in the course of another operation performed some ten months after the first.

In the operation carried out by Dr Langley with the assistance of Dr Warren in February 1990,

two nurses assisted in the operating theatre. The nurses were employees of the respondent hospital but

the two doctors were not. An allegation of negligence against the nurses led to the respondent being

joined with the appellants in the action. The head nurse assisting in the operation, Nurse Kirvisneimi,

was referred to as the “scrub nurse” and she gave evidence at the trial as did Drs Langley and Warren.

The assistant nurse did not give evidence although the part she played at the operation was outlined

in the evidence of the other three participants mentioned. An anaesthetist also assisted at the operation

but he too was not called as a witness. The trial lasted some eighteen days and there were a number

of witnesses who gave evidence in relation to what has been described as the central issue, the failure

to recover the sponge from the plaintiff’s body, as well as to deal with a number of other issues that

were raised for consideration.

Putting aside for the moment reference to the costs orders made below, it should be mentioned

that judgments for different amounts of damages were entered against the two appellants in accordance

with the jury findings and after allowing for entitlement to interest. Judgment was given for the plaintiff

against Dr Langley, who was the second defendant, for $574,500 comprising $557,000 damages

assessed by the jury and $17,500 interest and judgment was given for the plaintiff against the third

defendant, Dr Warren, for $34,080 comprising $30,000 damages and $4,080 interest. The judgment

entered for the first defendant, the respondent, against the plaintiff, has already been mentioned. The

answers given by the jury and the questions put to them were as follows:

1.          Was the first defendant negligent or in breach of its duty to the plaintiff in any of the respects alleged against it in paragraph 10(a) to (d) of the “Particulars of Negligence of the First Defendant”?

Answer: No.

2.          Was the second defendant negligent or in breach of his duty to the plaintiff in any of the respects alleged against him in paragraph 10(a) to (c) of the “Particulars of Negligence of the Second Defendant”?

Answer: Yes.

3.          Was the second defendant negligent or in breach of his duty to the plaintiff in any of the other respects alleged against him in paragraph 10 of the “Particulars of Negligence of the Second Defendant”?

Answer: Yes.

4.          Was the third defendant negligent or in breach of his duty to the plaintiff in any of the respects alleged against him in paragraph 10(a) to (c) of the “Particulars of Negligence of the Third Defendant”?

Answer: No.

5.          Was the third defendant negligent or in breach of his duty to the plaintiff in any of the other respects alleged against him in paragraph 10 of the “Particulars of Negligence of the Third Defendant”?

Answer: Yes.

6.          What is the amount of the plaintiff’s damages? Answer: $557,000.

7           How much of that amount is awarded for the consequences of the surgical pack being left in the plaintiff’s abdomen?

Answer: $527,000.

The issues raised in the pleadings and particulars and the issues canvassed at the trial should be

briefly explained although for the purpose of determining the appeal they will not all be of equal

relevance. In the argument on appeal no objection was raised to the directions which the trial judge

gave in summing up to the jury, although it was implied in the appellants’ argument that the judge had

been over lenient in allowing the jury to consider the possibility that the respondent, through its

employed nurses, might not have been guilty of negligence in circumstances where they had obviously

made an incorrect tally wrongly balancing the number of sponges opened for use in the operation with

the number retrieved at its conclusion.

In the cases raised by the contribution proceedings between the appellants and the respondent,

attempts had been made on behalf of the two medical practitioners to attribute responsibility to the

hospital through its nurses for any negligence found and the respondent hospital for its part sought to

attribute all responsibility for the events in the operating theatre to the two appellants. Although the

plaintiff’s case against the appellants was based on events wider than those that occurred in the

operating theatre on 22 February 1990, that event, as shown by the jury’s verdict, was the source of

the greater part of the plaintiff’s damages and hence is at the centre of the issues now to be considered.

The appellants’ argument essentially is that the jury having found a case against them and assessed

damages in connection with the leaving of the sponge inside the plaintiff’s body, there was no available
basis on which they could have found that the nurses for their part were not negligent.

By reference to the pleadings and particulars and the cases raised by the parties, the judge, in

his summing-up, explained to the jury the matters to be considered under the questions to be answered

by them. He indicated that the allegation against the respondent, the first defendant, and its employees,

the nurses, related solely to the conduct of the operation with the “focus” being on the surgical sponge

left in the plaintiff’s abdomen. That was what question one was directed to, and the jury’s answer

records their finding that the hospital and the nurses were not negligent.

Question two related to the allegations of negligence which had been referred to in paragraphs

10(a) to (c) of the particulars of negligence against the second defendant, the appellant Dr Langley, and

those too were concerned with Dr Langley’s failure to retrieve the sponge.

There were other allegations made against Dr Langley. It was alleged that he was negligent in

his failure to advise and warn the plaintiff before the operation in respect of benefits and disadvantages

which might flow from it especially as contrasted with the relative wisdom of following a more

conservative course of treatment. It was said also that he carried out the surgical procedures negligently

so that damage was caused to certain of the plaintiff’s nerves and ligaments and that, following the

operation, he failed to identify from the plaintiff’s continuing symptoms that a foreign object had been

left inside her body. The judge instructed the jury that question number three dealt with all of these

further aspects of alleged negligence apart from the failure to retrieve the sponge at the conclusion of

the operation.

The case to be considered against the appellant, Dr Warren, and its relationship to the questions

to be answered by the jury were dealt with in the directions. It was alleged that Dr Warren had also

been negligent in failing to provide adequate advice and warnings to the plaintiff, he being the practitioner who had been treating the plaintiff, and negligent as well in recommending the hysterectomy and referring

her to a surgeon for that purpose. In the same way as it was alleged that Dr Langley had been negligent

post operatively in failing to diagnose the cause of the plaintiff’s continuing symptoms and locate and

remove the sponge, it was alleged that Dr Warren was also responsible in that respect. Negligence in

carrying out the surgical procedures in a way causing damage to nerves and ligaments was raised against

Dr Warren as well. The judge explained that the additional issues against Dr Warren were to be

considered by the jury under question number five, that is the issues apart from the claim against him

concerned with the failure to remove the sponge, which was to be considered under question four. The

jury by their answers have found that the appellant, Dr Warren, was not responsible in respect of the

sponge but that he was liable under the other heads of negligence alleged against him.

As sufficiently clearly appears from the form of the questions, question number six asked the

jury to find the total amount of the plaintiff’s damages under all heads and question number seven asked

them to find how much of that total was due to the failure to remove the sponge at the end of the

operation. It should be noted that no challenge has been made to the respective amounts found by the

jury for the total of the plaintiff’s damages and the portion of the total due to the failure to remove the

sponge. The issues arising on the appeal are to that extent confined.

The appellants’ case below and on the appeal simply was that under the procedures in place

and relied upon by all concerned in the operation, the primary duty for establishing that a correct count

had been made of all items, instruments, sponges, packs and the like to establish that they had all been

retrieved from the plaintiff’s body at the conclusion of the operation, lay upon the nurses. The

appellants’ contention was that the plaintiff, having established that negligence had occurred in respect

of the failure to retrieve the sponge as shown by its answers against the appellant Dr Langley, and this not being challenged on appeal, there was no room, on any basis available on the evidence, for a finding

of no negligence on the part of the assisting nurses. Accordingly, it was submitted that if the procedural

difficulty already referred to were removed by introducing the plaintiff as a party to the appeal, the

proper order to be made by this Court was that the verdict and the judgment entered following upon

the jury’s answer to question number one should be set aside and in lieu a verdict entered for the plaintiff

against the respondent and then for the appellants against the respondent under their contribution claims.

On the assumption that the procedural difficulty could be surmounted, the availability of this relatively

summary form of relief without the necessity for a new trial needs to be examined.

During the hearing of the appeal the possibility was canvassed that the Court of Appeal itself

should decide upon the respective levels of contribution if the appellants should succeed in their appeal

but greater advantage was ultimately seen in remitting the matter to the trial judge to make the necessary

findings since such findings are by their nature more appropriately made at the primary level and

additionally it was not agreed by the parties that a full record of proceedings below, sufficient to provide

a basis for the determination, was before the Court. The course of remitting to the trial judge should,

in the circumstances, be preferred. An opportunity could be offered by this Court to the parties to

make any further submissions affecting the form of order proposed and in particular to make any further

submissions upon costs and the amounts that should be subject to any order for apportionment. From

what has been said so far, it would follow that any opportunity for apportionment between the appellant

Langley and the respondent would apply to the damages found to result from the non-removal of the

sponge, namely $527,000 and also that apart from the liability for costs, there would be no

apportionment as between the appellant Warren and the respondent. The position in respect of Dr

Warren followed from the facts that there was no challenge to the finding that Dr Warren was not responsible for the damage flowing from the non-removal of the sponge and it had not been alleged that

the respondent was responsible under the other heads of damages aggregating $30,000 found against

Dr Warren. Separate awards of interest attach to the amounts just mentioned.

It is desirable now to turn to the availability of the relief which the appellants claim, namely an

order setting aside the judgment in favour of the respondent and the entry in lieu of a judgment in favour

of the plaintiff against the respondent.

As has been indicated, the appeal involves a challenge to the findings of a jury and to the

judgment entered in accordance with answers given by them to particular questions submitted for their

consideration. Traditionally and for sound reasons, jury verdicts are treated as being in a specially

secure position. The relative freedom with which an appeal court can review the findings and judgment

of a judge sitting alone is very much restricted when a jury verdict is challenged on appeal. All rights

of appeal, it is often said, are creatures of statute. At an earlier time, only remedies of limited reach

were available when a party sought to escape from a judgment entered in accordance with a jury’s

findings. Relief could, however, be given by entry of judgment in a suit contrary to the jury’s verdict,

or a superior court when approached could set it aside and order a new trial. The historical influences

are traced, for example, in the judgments of the High Court in Hocking v. Bell (1945) 71 C.L.R. 430

and Shepherd v. Felt and Textiles of Australia Ltd (1931) 45 C.L.R. 359. As distinct from the remedy

of a new trial, any entitlement to have a verdict entered contrary to one found by a jury was available

only in an extremely limited situation prior to the making of statutory amendments affecting the position.

Now, as a result of the introduction of new statutory rules governing appeals following the passage of

the Judicature Acts (including, in particular, so far as this Court is concerned the provisions of Order

70) and perhaps because of a degree of evolution that has taken place in the interpretation and application of those rules there are categories clearly enough established where the appeal court,

approaching the matter with all appropriate reserve, will regard itself as not only entitled to interfere by

setting aside a verdict, but also without any new trial substituting a contrary verdict.

Although in the present case the plaintiff herself has not sought to challenge the jury’s finding that

the respondent, through its employed nurses was not negligent in the treatment and care of the plaintiff

in the course of the operation, the appellants for their part need to overturn that finding if they are to

succeed. In asking that, contrary to the jury’s verdict, a verdict should be substituted in favour of the

plaintiff and in their favour on the contribution proceedings, it is seen that they are asking for orders in

favour of a party to the suit, namely the plaintiff, on whom the burden of proof lay at the trial.

Notwithstanding views taken at earlier times, it has come to be accepted that relief of this kind may be

available, see e.g. Hocking v. Bell (supra) at 441, 467, 486 and 502, Baird v. Magripilis (1925) 37

C.L.R. 321 at 334, Conrad v. Chermside Hospital Board [1982] Qd.R 242 at 251 and Evans v.

Davies [1991] 2 Qd.R 498 at 508-9 and 544-5. This relief can be obtained if the jury’s verdict was

one which was not open to them, that is if there was no evidence to support it, or, in a situation fairly

equivalent to that, it was one which on no view of the evidence reasonably open, could be justified, that

is if the verdict was, in effect, perverse. In such case a contrary verdict can be entered by the appeal

court without there being a need to order a new trial. This more limited category of cases is to be

distinguished from the essentially different one where the jury has done no more than find against what

can be regarded as the weight of a conflicting body of evidence: cf Hocking v. Bell (supra) at 440, 442,

468 and 487. In the present case no controversy attends the basic proposition stated as applicable

to a perverse verdict in the sense described since the parties have made their submissions on the basis

that it is correct, accepting that the appeal should be decided in accordance with it. There is no reason
to doubt the correctness of the proposition.

The question is whether the answer of the jury that the hospital was guilty of no negligence in

its care and treatment of the plaintiff is one that on no view of the evidence was reasonably open. This

is the point the appellants seek to establish. The extraordinary difficulty if not the impossibility of the

task that would have confronted the appellants in trying to escape a verdict found against them if there

had also been a verdict found against the respondent and a corresponding difficulty that would have

arisen for the plaintiff if the jury had found no negligence against any of the defendants, are difficulties

that do not arise here. The jury have found against the appellants but not against the respondent in

respect of the events that took place in the operating theatre and no one has sought to challenge the

finding that the appellants were guilty of negligence. The precise question then is, was it open in that

situation to find the respondent free of blame? This requires some consideration of the evidence below.

In the course of this quite lengthy trial, witnesses gave expert evidence including general

evidence of medical procedures and there was as well direct evidence of the events in the operating

theatre on 22 February 1990. Apart from surgeons, obstetricians, gynaecologists and a urologist, there

was a nurse, Mr Born, who, speaking from particular knowledge and experience, referred to standards

and procedures prevailing in operating theatres during surgery. Evidence from both appellants and the

respondent’s employee, Nurse Kirvisneimi, was also contributed.

None of the witnesses who had a role in the plaintiff’s operation and were called at the trial

could remember any relevant specific incidents. It is important to stress that none of them asserted that

any emergency arose. All, however, accepted that there were established roles to which those taking

part in an operation were expected to conform and none of them dissented from the outline of

procedures that will now be stated.

The principal surgeon was accepted as being the one in charge of the operation in an overall

sense and he carried out the operative procedures with the assistant surgeon supporting him as required.

Lending general support such as by furnishing instruments and equipment as were needed and called

for were two nurses, a scrub nurse and an assistant, a scout nurse. An anaesthetist was also present.

This was the full complement directly involved in the operation performed on the plaintiff. In a

hysterectomy operation it can be expected that after the abdomen is opened sponges will be needed

to confine the intestinal organs of the patient and keep them away from particular areas that have to be

worked on. Sponges are also used to mop up excess blood should the situation require it. A

hysterectomy operation of the kind performed here takes a significant time. There was evidence that

it could take about one hour. At the conclusion of the operation before the patient’s operative wound

is closed, it is obviously of great importance to remove all foreign objects temporarily introduced during

the course of the operation. This category will include instruments and sponges. An accounting

procedure is followed to ensure that there is a complete removal of all temporarily introduced items. The

surgeons, preoccupied with their own immediate tasks as they will be, nevertheless will have some

general notion of the number of sponges they have introduced into the operation site and the locations

in which they have placed them. At the conclusion of the operation they will proceed to remove the

sponges, locating them by sight and by touch, feeling with their hands in the operation area. Some

surgeons more than others may keep some mental note of the approximate number of sponges

introduced as the operation proceeds but whether or not they do this and notwithstanding their visual

and manual exploration of the site to recover items they all rely upon established counting and checking

procedures that the nurses must undertake. These procedures are outlined in a set of written standards

which the scrub nurse in this case accepted as applying and as being followed by her.

Amongst the items laid out on some convenient table or other surface at the commencement of

the operation there will be sponges. Doctor Langley said that the kind of sponge that he used was

about a sixth of the size of a tea towel. Sponges come supplied in packs of five and when the packs are

opened the sponges are placed on the area to receive them and then individually separated and

physically moved to ensure that an accurate count of their number can take place. The count is made

by the nurses counting together out aloud and then on the operation report they inscribe the number so

laid out and counted. In this case the report document was sheet E15 of the hospital file, Exhibit 21.

Against the heading “Sponges” and in the column further headed “Before Operation” there is shown

the figure ten. Nurse Kirvisneimi verified this written entry. One of the witnesses, Doctor Salter,

suggested that up to twenty sponges could be used in a fairly routine total abdominal hysterectomy

operation and this gives some indication of the quantity of these items that might be involved. The page

of the exhibit just referred to also shows that in the present case a further ten sponges were opened and

made available in the course of the operation. This is shown by the further entry “+10” under the

heading, “Added during Operation”. The same sheet lists a number of other items as well against which

numbers are placed but it is unnecessary to refer to them in detail.

When additional sponges are added and placed upon the nearby working surface during the

operation the same procedure as before is followed with the two nurses counting out aloud together as

the sponges are checked by moving them individually to separate them. The result of that count is then

entered upon the report form. In the present case a further ten were opened. At the conclusion of the

operation and before the closure of the wound is commenced a count is made of retrieved items and

of the unused items. This will be carried out in the same way by the two nurses audibly counting

together. One further time when the skin at the site of the operation is about to be closed, a count is performed by the two nurses together. The result of the counts should be that the total number of the

sponges retrieved together with those unused should tally with the total of the number opened before

the operation and during the operation. If the two totals do not tally, it will be obvious that something

has gone wrong. Remedial steps are available such as x-raying the patient if there are indications that

an item utilised cannot be found and has not been recovered from the site of the operation. In the

present case the nurses’ count recorded as it is as part of Exhibit 21 has been shown to be incorrect

and it would have provided false assurance to the surgeons that all of the utilised sponges had been

recovered. It was accepted that the sponges would have come from standard packets of five and that

accordingly two packets would have been opened before and two during the progress of the operation.

At the trial it was not in contest that it was as a result of negligence on the part of one or other

of those involved in the operation that the sponge had been left inside the patient’s body, and it was not

in contest and could hardly have been contested that an incorrect count had been made by the nurses.

However, none of the defendants conceded that any act or omission constituting negligence was

attributable to them. Following the verdicts the appellants do not contest the finding of negligence made

against Dr Langley, and the issue is whether the verdict in its effect clearing the nurses of liability, could

stand. The nurses clearly, under the procedure described, had the primary responsibility for making an

accurate count to ensure that all of the sponges used had been recovered from the plaintiff’s body and

they have been found not to be negligent while the surgeon has, by contrast, been found to be negligent

in failing to recover the sponge.

The relevant established standard for “counting of sponges, swabs, instruments and needles”

is called the “Acorn” standard and it supports the description of the duties that has been outlined above.

Importantly, there was no dissent at the trial concerning its applicability. In fact, two versions of the Acorn standard not dissimilar in any relevant respect appear in the records as Exhibits 40 and 42. At

the trial, Nurse Kirvisneimi accepted that she and her fellow nurse had made a counting error and she

was unable to suggest how it had occurred. None of the witnesses had a recollection of anything

untoward occurring in the course of the operation.

Confronted with the difficulty of defending the finding that the persons with the obvious primary

liability for ensuring a correct count were not guilty of negligence in performing it incorrectly, counsel for

the respondent repeated at the hearing of the appeal the stand taken at the trial, endeavouring to suggest

that some unusual event which excused the nurses may have occurred and that the jury were entitled

to find that this was so. The suggestion was made that there was some emergency even though none

of the witnesses could recollect it.

There was some evidence that on very rare occasions a packet of sponges might contain an

incorrect number, for example, six instead of five, and it was suggested that this could explain how the

incorrect count was made. The difficulty with this theory is that the very purpose of the co-ordinated

procedure for counting by the nurses is to check the number of individual sponges and the count does

not proceed upon the basis that the numbers in the packet will be correct. The evidence as to the

practice followed if a variation from standard was found in the contents of a packet was that the whole

packet and its contents were discarded. Reference to the Acorn standard supported the proposition

that this was correct procedure. The procedures for removal from the packet, with separation of items

by movement upon the counting surface were designed to pick up any non-conformity in the contents

of packets.

A further suggestion was made that some emergency may have arisen in the course of the operation which could justifiably have distracted the nurses from their counting duties, but there is no support for this in the evidence. No emergency was recollected by any of those involved. It was

pointed out that sheet E21 of the hospital record Exhibit 21 shows that 450 millilitres of blood were

administered to the plaintiff by transfusion and an endeavour was then made to suggest that this pointed

to the occurrence of an emergency in the course of which the plaintiff lost a large amount of blood or

lost blood suddenly so that efforts on the part of the nurses necessary to supply sponges to deal with

the situation may have distracted them from making an accurate count. There were real difficulties with

this argument. There was evidence that the amount of blood transfused may not provide an indication

that an approximately equal amount of blood was lost since some medical practitioners, more

particularly at that time, followed a policy of “topping up” if, for other reasons, the plaintiff’s condition

was thought to need it. Also, 450 millilitres could not be said to be significantly beyond a range that

would be described as normal. There was evidence that 300 millilitres or so of blood could be lost in

the course of a normal operation. Furthermore, if some emergency, of which there was no evidence,

had called for an urgent supply of sponges, the nurses were not relieved of the duty of maintaining an

accurate count. It was accepted that if their count was interrupted, they were to recommence it at the

point where they had left it.

Yet another suggestion was that Dr Langley may have taken a sponge himself directly from the

table or tray and in that way interfered with the accuracy of the nurses’ count, but there was no evidence

that he had done any such thing. Dr Langley, when pressed with this theory, said there might be

occasions when he would take a sponge directly without its being passed to him, but that he would not

do so unless the nurses saw what he was doing. Accordingly, that being Dr Langley’s answer and there

being no other evidence to support that it might have occurred, it is correct to say there was no evidence

of it.

For present purposes, what is no more than speculation should be dismissed as being of any

possible relevance. We are constrained to consider whether evidence not speculation may have justified

the jury’s verdict: cf. Caswell v. Powell Duffryn Associated Collieries Limited [1940] A.C. 152 at 169-

170, Gurnett v. Macquarie Stevedoring Co. Pty. Ltd. (1955) 55 S.R.N.S.W. 243 at 247-8, Holloway

v. McFeeters (1956) 94 C.L.R. 470 at 476-7 and Jones v. Dunkel (1959) 101 C.L.R. 298 at 304-5.

The evidence after all suggested that up to twenty sponges could be used in a fairly routine operation.

It should be emphasised that the counting procedures for the sponges and the recording of a result did

not indicate the number that had actually been used. The total number opened only had to be matched

against the total of both used and unused at the conclusion of the operation.

Applying the approach sanctioned in Conrad v. Chermside Hospital Board (supra) and Evans

v. Davies (supra) we are confronted with the unchallenged finding that the surgeon had been guilty of

negligence in failing to retrieve one sponge but left with the finding that the primarily responsible

accounting parties, the nurses, had been guilty of no negligence. This latter finding cannot stand and

the relevant verdict should be set aside and a finding of negligence against the respondent substituted.

Once the appellants’ attention was directed to the procedural difficulties involved for them in

their claim for contribution in the absence of a finding against the respondent of negligence, the

appellants and the plaintiff entered into an agreement of which the Court has been informed. Its effect

will be to remove the procedural obstacle. Because of this arrangement, it has not been suggested for

the respondent that the appellants lack standing to obtain a judgment for the plaintiff against the

respondent which is the necessary foundation for a judgment against the respondent in the contribution

proceedings. So far as this Court is concerned, it is necessary to record that the plaintiff does not wish

to be heard on the appeal and that she will abide by the order of the Court without seeking to appear in any further proceedings that may be taken in this matter. It is conveyed to us that the plaintiff takes

that attitude on the basis of indemnities given to her satisfactorily protecting her position. In the

circumstances there appears to be no practical advantage to be gained by ordering service of the notice

of appeal upon the plaintiff and a course should be adopted with the least potential to increase costs.
In conformity with its view of the merits already expressed, and subject to any objection which

the parties may wish to raise to the form of the order, the Court should order as follows: appeal

allowed with costs, order number four of 20 November 1996 made below be set aside, and in lieu

thereof ordered that the plaintiff recover against the respondent, the first defendant in the action,

$527,000 and interest to be assessed with costs of and incidental to the action (including reserved costs,

if any) to be taxed; orders number three and four of 22 November 1996 set aside; any further orders

to be made consequent upon the making of these orders be reserved to the trial judge and the further

determination of the contribution proceedings between the appellants and the respondent remitted to

the trial judge for determination; the parties to the appeal to have twenty one days from the date of

delivery of this judgment to make written submissions to this Court on the form of these orders should

they seek to have them varied; otherwise these orders to stand as the final orders of this Court in the

appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10784 of 1996

Brisbane

Before Macrossan CJ
Williams J
Byrne J

[Langley and Warren v. Glandore P/L (In Liq)]

BETWEEN:

NOEL F. LANGLEY

(Second Defendant)

and

JOHN R. WARREN

(Third Defendant) Appellants

AND:

GLANDORE PTY LTD (In Liquidation)

(ACN 009 711 979)

(First Defendant) Respondent

HEATHER ELIZABETH THOMSON

(Plaintiff)

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 3 October 1997

Given the joint reasons of the Chief Justice and Byrne J, which I have had the advantage of

reading, I can state my reasons briefly.

In the circumstances outlined by the Chief Justice and Byrne J the jury found the medical

practitioners, the appellants, guilty of negligence with respect to the operation performed on the plaintiff,

but found the hospital, the respondent, not guilty of negligence. This appeal is solely against the finding

that the respondent was not negligent.

As the finding was that of a jury the verdict can only be upset if “the evidence in its totality

preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict

is such as reasonable jurors could not reach” (Calin v. Greater Union Organisation Pty Ltd (1991) 173

CLR 33 at 41 per Mason CJ, Deane, Toohey and McHugh JJ; see also Brennan J at 46-7.)

The particulars of negligence alleged by the plaintiff against the respondent fell into two broad

categories. Firstly, it was alleged that the respondent hospital failed to instruct adequately its servants

(the nurses) as to the proper procedures for accounting for objects used in surgery or failed to establish

a proper system for ensuring that such instructions were followed. The evidence clearly established that

there were well recognised guidelines which ought to be followed in all operating theatres and that the

respondent had adopted those guidelines and adequately instructed its staff as to them. The learned trial

judge in his summing up strongly suggested that the respondent was not negligent in those particulars.

As he said “the real issue in relation to” the case in negligence against the respondent was the contention

that it was vicariously responsible for the negligence of its servants, the nurses. That led to consideration

of the second category of the negligence alleged by the plaintiff against the respondent, namely that the

nurses “failed to identify the fact that an abdominal pack had been left inside the plaintiff at the

conclusion of the surgery”.

The accepted procedures and guidelines are fully set out in the joint reasons for judgment

of the Chief Justice and Byrne J. If those guidelines had been followed then the nurses should have ascertained that at the end of the operation there was one pack unaccounted for. Despite the fact that

one pack was still inside the abdomen of the plaintiff the record sheet compiled by the nursing staff

showed the same number of packs counted out and accounted for at the end of the procedure.

Counsel for the respondent on the hearing of the appeal virtually conceded that the error in

accounting for the number of packs, given the procedure in place and the reasons why it was in place,

would amount to negligence unless there was some other factor established by the evidence which

absolved the nurses from any blame. At the trial (and this submission was repeated on appeal) counsel

for the hospital contended that the nurses would not be negligent if they had been distracted from their

count by some emergency, or if the negligence of the surgeon (in this case the first appellant) was so

gross that the nurses’ error in accounting for packs was not a cause of the pack being left in the

plaintiff’s abdomen.

In the course of his summing up the learned trial judge said:

“At the end of the day it is a matter for you whether you are satisfied that something occurred during the operation that is not recorded and which was either evidence of negligence on the part of Dr Langley or at least supports the proposition that he performed the operation negligently, or in the case of Mr Fraser’s client [the hospital] the cause of such confusion, that the failure to count the sponges could not be held against the nurses. It is a question for you to consider whether it has been proved satisfactorily to the required standard that something unexpected happened or is it simply speculation?”

There was no request for a redirection, and given the thrust of the address by counsel for the

hospital it was probably fair for the learned trial judge to leave the question for the jury in that way. But

the situation is, as fully explained by the Chief Justice and Byrne J, that there was no evidence that any

emergency or unexpected event occurred which could excuse the nurses. Nurse Kirvisneimi, who was

the senior nurse, was given ample opportunity during her evidence to refer to any emergency or

unexpected occurrence during the course of the operation; she could particularise none. There was some vague reference to excessive bleeding, but on the whole of the evidence (and accepting her

testimony) that would not constitute an emergency or unexpected occurrence.

The comment can, and must, be made that if there was an emergency or unexpected

occurrence such as would excuse the error in counting the packs then one would expect that one of the

persons present during the operation would be able to given evidence of it. In the absence of any such

evidence it would be “simply speculation” to conclude that some such event did occur.

There is also no evidence that the negligence of the principal surgeon, Langley, was so gross

that it alone was the cause of the plaintiff’s loss and damage. During the trial there was mention made

of the head surgeon being the “captain of the ship”, but that is not a helpful analogy as the learned trial

judge himself pointed out in his summing up. It is true that Langley was not a specialist obstetrician-

gynaecologist, but was more of a general surgeon. However, that fact was not demonstrated to be a

significant direct cause of the pack being left in the plaintiff’s abdomen. The risk of a pack being left in

the abdomen is present in any abdominal surgery and that is one of the reasons why the strict

procedures referred to above are put in place in all operating theatres.

It follows that there was no basis upon which reasonable jurors could find on the evidence

that the nurses were not negligent in miscounting the sponges and in consequence their finding that the

respondent hospital was not negligent was so against the totality of the evidence that it must be regarded

as perverse.

The appeal must be allowed.

The parties agreed at the trial that the jury should merely be asked to return findings as to

the negligence of each of the defendants with respect to the plaintiff. If findings of negligence were made against more than one then it was agreed that the learned trial judge should deal with the apportionment

issue raised by the Notices Claiming Contribution.

Understandably, given the length of the trial and the variety of issues raised thereat, the

appeal book prepared for this court only contained evidence relevant to the issue of the hospital’s

negligence. This court is not in possession of all the evidence relevant to a determination of contribution

as between the first appellant and the respondent. In the circumstances this court should not make any

comment on possible degrees of contribution. Subject to the time lapse between the jury verdict and

this decision, the learned trial judge is in precisely the same position as he would have been if the jury

had returned a finding of negligence against the hospital.

I agree with the orders proposed by the Chief Justice and Byrne J.