McFarlane v The State of South Australia - [2014] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCFARLANE v THE STATE OF SOUTH AUSTRALIA
[2014] SADC 160
Judgment of His Honour Judge Boylan
5 September 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
Claim for damages for personal injury against the State of South Australia as the entity liable for the Royal Adelaide Hospital and Yatala Labour Prison. Plaintiff alleges negligence on behalf of Yatala Labour Prison and Royal Adelaide Hospital in failing to diagnose subdural haematoma earlier whilst in custody. Finding: defendant not negligent. Claim out of time - plaintiff failed to demonstrate he has ascertained a new material for fact or facts.
Held - Claim dismissed.
Civil Liability Act (1992) ss 3(a), 483(b), referred to.
Rogers v Whitaker (1992) 75 CLR 479; Howard v Jarvis (1958) 98 CLR 177; Tebbit v Gett (2010) 240 CLR 537, considered.

MCFARLANE v THE STATE OF SOUTH AUSTRALIA
[2014] SADC 160
A claim for damages for personal injury

Allan Kenneth McFarlane, now deceased, was serving a sentence at Yatala Labour Prison when, in a fight with a fellow prisoner, he suffered a fractured cheekbone. He was admitted to the Royal Adelaide Hospital where a plastic surgeon repaired the fracture. The day after the operation, Mr McFarlane returned to Yatala and, after a visit to the prison health centre, he was returned to his cell. Over the next two weeks he claimed to prison staff that he was unwell, complaining mainly of headaches. At the end of that period, the prison doctor ordered x-rays of his brain. Those x-rays showed that he was suffering from a subdural haematoma. He had further surgery at the Royal Adelaide Hospital to repair that. As a result of the subdural haematoma, Mr McFarlane suffered some neurological deficits.
Mr McFarlane issued a claim for damages against the State of South Australia as the entity liable for the conduct of the personnel at the Royal Adelaide Hospital and at Yatala. His claim is out of time and, before it could succeed, would require an extension of time.
Broadly speaking, Mr McFarlane’s claim falls under three separate heads. First, he claims that the staff at the Royal Adelaide Hospital were negligent in failing to diagnose the evolving subdural haematoma during his admission and negligent in discharging him too early. Secondly, he claims that the hospital was negligent in failing to ensure, as far as it could, that Mr McFarlane was kept under observation at the health centre at Yatala before being returned to his cell. Thirdly, he complains that staff at Yatala were negligent by their general treatment of him back at Yatala and, in particular, by failing to notice and act upon the symptoms of his evolving subdural haematoma.
Mr McFarlane died some four days after I reserved judgment in this matter. Accordingly, only parts of his original claim survive for the benefit of his estate.
In my judgment Mr McFarlane’s claim fails. I now give my reasons for that judgment.
The witnesses
With the exception of the plaintiff, I am satisfied that all witnesses did their best to tell me the truth. Because the relevant events happened so long ago, it is unsurprising that they had no recollection of relevant events and had to rely upon records made at the time. I accept that those records are accurate.
Mr McFarlane was not a reliable witness; nor was Mr Sansbury, a former prisoner called by Mr McFarlane. Mr Sansbury’s memory was poor and I think he unconsciously reconstructed some events.
Where there are differences between the evidence of Mr McCulloch, a neurosurgeon called by the plaintiff, and Professor Weidmann, a neurosurgeon called by the defendant, I preferred the evidence of Professor Weidmann. Mr McCulloch was at a disadvantage because he had formed his views partly on the history given to him by Mr McFarlane who, as I have emphasised, was totally unreliable, and upon the hospital and Prison Health Service records but without knowing that a lack of notes about neurological deficits in those records positively indicates that no such deficits were noticed.
Mr Mark Reid, a neuropsychologist called by the plaintiff, also relied in part on Mr McFarlane’s history in forming his opinions. Mr Reid deferred to Mr McCulloch and Professor Weidmann on issues concerning liability.
Mr McFarlane was 51 years old at the time he gave evidence. He had had a tragic life. He was born after his father’s death and from an early age was raised partly by his stepfather with whom he did not get along. As a young teenager, he left home, developed a drug problem and was in a deal of trouble with the law. In 1990 he suffered a back injury which caused him much trouble over the years. He spent much of his life in prison, serving sentences for serious offences, mainly for armed robbery. His drug problem continued up to the time he suffered the injury the subject of these proceedings and he was, while serving his sentence at Yatala, taking buprenorphine to assist him with his drug problem. He was poorly educated.
So many parts of Mr McFarlane’s evidence are directly contradicted by written records that I cannot rely upon it. Having said that, I do not think that Mr McFarlane set out to deceive me. I cannot know why his memory is so unreliable. It may be partly due to his drug use. Perhaps, as is often the case with witnesses, Mr McFarlane convinced himself over the years that the assertions he eventually made in the witness box were true. A list of his assertions in evidence which are directly contradicted by the proved records would be very long, besides being unnecessary. I mention only a couple. There is no doubt, on the basis of the records, that Dr Nikitins, plastic surgeon, saw Mr McFarlane in outpatients at the Royal Adelaide Hospital between his first operation and the second one. Mr McFarlane denied that he had seen Dr Nikitins. The records also show, and Dr Clohesy, the prison doctor, remembers that he saw Mr McFarlane in the prison health centre on 27 October 2005. Not only did Mr McFarlane deny seeing Dr Clohesy on that day, he claimed in evidence that the prison record of that consultation was ‘a knocked up cover-your-arse piece of paper…to make it look like he saw me’. In determining the facts of this matter, I have relied upon the documents and upon the evidence of the witnesses other than the plaintiff and Mr Sansbury.
The following narrative constitutes my finding of fact. I shall make other findings, as they are necessary, throughout these reasons.
In 2004, Mr McFarlane was sentenced to imprisonment for five years for an offence of armed robbery. He was due for release on 20 May 2009. At the time he suffered his injury in October 2005, he was housed in a cell in the unit of the prison known as ‘B Middle’.
On 10 October 2005 another inmate assaulted Mr McFarlane during a soccer game. Mr McFarlane attended the health centre at the prison for treatment of his injury, a fractured cheekbone, but lied about its cause, telling prison staff that he had suffered the injury when he fell in the exercise yard. I note that there is nothing sinister in his lie: naming his assailant could well have led to retribution. The next day, Mr McFarlane was admitted to the Royal Adelaide Hospital for surgery to repair his fractured cheekbone. The operation was delayed because, on 12 October 2005, Mr McFarlane suffered a bout of nausea, vomiting and agitation after administration of Cephazolin, a peri-operative antibiotic.
On 14 October 2005, Dr Nikitins surgically repaired the fracture and Mr McFarlane was discharged from the Royal Adelaide Hospital to Yatala on 15 October 2010 arriving there at about 6.30 pm. Back at the prison, he was taken first to the health centre (formerly called “the infirmary”) before being sent back to his cell. While at the health centre, Mr Abbott, a nurse, booked Mr McFarlane in for medical review the following day, 16 October 2005. On that day, Mr McFarlane declined to attend for review.
On 19 October 2005, Dr Ian Jennings, psychiatrist, saw Mr McFarlane at the prison. He told Dr Jennings about his broken cheekbone, still maintaining that it was caused by a fall; complained of ongoing pain; and further complained that he was not getting adequate pain relief. But he told Dr Jennings that his sleep was good and that he was eating well, although he complained that he was not being allowed extra rations of bread when fish, which he did not like, was provided. He made no mention of headaches.
At 11.23 am on 21 October 2005, Mr McFarlane complained to Ms Samantha Booth, a prison officer, about recurring headaches and lack of sleep and of his having to spoken to nursing staff who would not give him anything. Ms Booth spoke to nursing staff and was told that Mr McFarlane was on the list to see a nurse that very day. The nursing staff said that he was refusing the medication offered. Mr McFarlane attended the infirmary in the afternoon and, later, he told Ms Booth that he was offered Panadol. She commented that he was not happy with the outcome. Ms Booth also said that, on that day when Mr McFarlane made his complaints, she saw him walking towards her and away from her. She described him at those times as looking like ‘he had a bad headache’. Her evidence was that she did not see Mr McFarlane struggling in his walking at all. If she had noticed that he was unable to move properly, she would have called a ‘code black’, the term for medical assistance.
Mr McFarlane attended the prison health centre later on 21 October 2005 for the removal of his sutures but, because he complained of headache and nausea, Nurse Abbott prescribed aspirin and Maxalon and postponed the removal of the sutures to the following day. On the following day, at 1.00 pm, Mr McFarlane attended the health centre and again complained of persistent headache, saying that he had no relief from earlier medication. He asked for Panadeine Forte. He told the nurse on duty that his nausea had settled. He was given Panadol and the sutures were removed.
At 4.15 am on 24 October a nurse was called to B Middle in response to Mr McFarlane’s complaint of headache. He was again given Panadol.
On 25 October, Nurse Susan Ziniak, who did a buprenorphine round in B Middle each morning, noted that Mr McFarlane looked unwell and asked what was wrong. Mr McFarlane replied that he had a blinding headache. In response to that, Ms Ziniak asked prison officers to take him to the health centre for review. There, he complained of migraine, leg pains, nausea and blackouts. Again, he wanted Panadeine Forte but was given aspirin and Maxalon. He was booked in for medical review two days later, on 27 October.
On the following morning, 26 October, Nurse Ziniak again saw Mr McFarlane on her rounds. He looked worse. Ms Ziniak noticed that he was tilting to one side and was not walking straight; he looked greyer than he had the previous day and she was of the opinion that he was in obvious pain. When she told him that he should go back to the health centre, he replied that the staff thought he was a whinger. At 8.00 pm that night, he claimed that he was ‘half paralysed’ and was given Brufen and Panadol.
At 10.00 pm on the night of 26 October, an officer in B Middle contacted the health centre reporting that McFarlane wanted pain relief. That officer was told that pain relief had already been given earlier in the night.
At about 1.00 pm on 27 October 2005, Dr Clohesy, a prison doctor employed by Yatala, saw Mr McFarlane at the health centre and recommended a CT scan as soon as possible.
On the evening of that same day, 27 October 2005, Mrs McFarlane arrived home to find a telephone message from her son. Mr McFarlane’s evidence about that message was that he had told his mother about his condition, that the doctors thought that he was putting it on and that he had been advised to ring someone who could ring the prison manager or the gaol to get something done. As a result of her receiving that message, Mrs McFarlane rang the prison manager’s secretary at about 8.15 am on Friday 28 October 2010. She explained that she made that phone call because, owing to what had happened to her son Andrew many years before, after Andrew had suffered a serious head injury, she was worried that Mr McFarlane had been bleeding in the brain and needed a CT scan or an MRI.
On that day, 28 October, McFarlane was refusing to attend the health centre saying that he felt better and no longer wanted to be admitted there. He was, in fact, taken to the Royal Adelaide Hospital later that day for x-ray. The x-ray showed a subdural haematoma and an operation was performed late that afternoon.
Mr McFarlane served out the rest of his sentence and was released on 20 May 2009. He went to live with his brother in his brother’s house at Torrens Park. On about 5 June 2009, Mr McFarlane was assaulted outside a hotel when his right leg was stabbed with a bicycle spoke. As a result of that injury, he was admitted to the Royal Adelaide Hospital on 8 June 2009 for surgery to his leg. After his discharge, he continued to live with his brother until he was arrested for an offence of armed robbery on 30 October 2009. He remained in custody until being granted bail in January 2010. Thereafter he lived with his brother until he obtained housing trust accommodation in May 2010. In the same month, he began doing voluntary work at the Richmond Lions Club, work which he was still doing at the time of trial. Mr McFarlane died on 4 September 2013.
General issues about liability
I heard no expert evidence about the relevant standards of care in this case, being the standards of care of the reasonably competent medical officer or nurse in a plastic surgery ward; of a nurse or medical officer practising in a prison environment; or of a prison guard. Mr McCulloch gave some general evidence about standards of care in the hospital and in the prison health service. I heard from a number of witnesses about the difficulties facing those treating inmates in a prison. Those difficulties included limited physical access to prisoners with the consequent difficulties of carrying out thorough examinations; widespread complaints by prisoners of headaches in the hope their of being given analgesic drugs; difficulties in accepting at face value histories and accounts of symptoms described by prisoners; and the difficulties of moving prisoners both within the prison and between the prison and a hospital. Mr McCulloch accepted that he did not have any experience in making clinical judgments in the face of the difficulties facing prison staff. Professor Wiedmann acknowledged the difficulties.
In considering whether or not the defendant has been negligent at any stage in its treatment of Mr McFarlane, I have borne in mind the provisions of the Civil Liability Act, 1936; the duty of care owed by hospitals and by medical professionals to patients[1]; and the duty of care owed by prison authorities to persons in custody.[2] There was no argument before me about the relevant legal principles. This case turned upon the application of those principles to the facts as I have found them.
[1] See, e.g. Roberts v Whitaker (1992) 75 CLR 479.
[2] See Howard v Jarvis (1958) 98 CLR 177.
The liability of the Royal Adelaide Hospital (RAH) for treatment
The plaintiff first claims that the RAH breached its duty of care to him by failing to keep him in hospital and under observation for sufficient time for any symptoms of neurological deficiencies to have settled so that the risks of complications namely, subdural haematoma, could be excluded. The defendant’s answer to that claim is that all of Mr McFarlane’s complaints were non-specific and, accordingly, there was no reason for the hospital staff to have suspected or to have been on the lookout for a subdural haematoma.
In considering the submissions under this head, I have borne in mind the undisputed evidence that a subdural haematoma is a rare complication of a fractured cheekbone or, put another way, that there is a very low risk of a subdural haematoma following such a fracture. I have also borne in mind that Mr McFarlane had given a false account of how he suffered his injury. That is relevant because the evidence is that a subdural haematoma is more common after a sporting injury than after a fall and a punch is more likely to cause a subdural haematoma than a fall. As Professor Weidmann pointed out in his report, treating staff would have been more suspicious of a subdural haematoma and of possible complications if Mr McFarlane had given a correct history.
The evidence supports the defendant’s submission. I accept Professor Weidmann’s evidence that Mr McFarlane’s symptoms while at the RAH were mainly non-specific. Further, they did not persist. Before the surgery, there was an episode of headache, nausea and vomiting. The diagnosis – an allergic reaction to Cephazolin – was, according to Dr Nikitins and Professor Weidmann, reasonable in the circumstances, although probably wrong in hindsight. But I do not have to consider that issue further because, following that episode the patient was described as being ‘settled’; that is, his symptoms did not persist. Early the following morning Mr McFarlane had an episode of confusion and hallucinations but, again, the episode passed and, later in the night he was described as being ‘stable, alert and orientated in time, place’ and understanding a book which he was reading. At that time he had no pain complaints. Neurological observations were made and recorded. There was no record of any abnormality, as there would have been if any abnormality had in fact been observed. On the same day, there was a note in the hospital’s records that Mr McFarlane was neurologically stable. That pattern continues: early on the morning of 14 October he was stable and sleeping well; later in the day, he complained of pain but not of headache. He vomited early that afternoon and in the evening of the same day was nauseous and vomited, but that was after the operation. He was given Maxalon and his condition resolved. The following day, his final day at the Royal Adelaide Hospital on that admission, he again complained of pain but Dr Nikitins considered that normal after surgery. Later that day, before his discharge, he was independent to all daily living activities, eating and drinking, and not complaining of pain.
While Mr McFarlane was in hospital, the staff took neurological observations. Had they noticed anything abnormal, they would have recorded the abnormality. They made no such record.
Mr McCulloch was of the view, in his written opinion, that there was no inadequacy in the plaintiff’s care at the Royal Adelaide Hospital from his admission through to 15 October. At one point in his evidence-in-chief, Mr McCulloch seemed less certain about that opinion but it turned out that he had been mistaken about the date of Mr McFarlane’s discharge. When Mr McCulloch knew that he was discharged on 15, rather than on 14 October, and that there was no complaint of headache on 15 October, he was ‘comforted’ by that fact. He was asked[3]:
QOn reflection there was nothing inappropriate, was there, about discharging Mr McFarlane even if it was, as it appears to be, the 15^th rather than the 14^th?
He answered:
AYes.
[3] T 353
The effect of Professor Weidmann’s evidence was that Mr McFarlane’s symptoms while he was in the RAH were non-specific and appeared to resolve themselves. Some of them – hallucinations and confusion, for example – were suggestive of drug withdrawal rather than a subdural haematoma. Accordingly, there was nothing in Mr McFarlane’s presentation to arouse suspicion of any neurological deficit which would have suggested the necessity for x-ray. Professor Weidmann’s evidence, which I accept, was that there was nothing inadequate in the care and attention given to Mr McFarlane during his admission at RAH.

I find that, while he was at the RAH, Mr McFarlane was kept under observation and showed no signs of neurological symptoms which would have cause for hospital staff to order a CT scan of his brain.
In my judgment, the plaintiff has failed to establish negligence on the part of the Royal Adelaide Hospital during his first admission.
Liability: discharge from the RAH and conduct at prison health centre
Under this head, Mr McFarlane argues that the RAH should not have discharged him when it did; that the discharge document sent to Yatala was inadequate; and that Mr McFarlane should have been left in the health centre at Yatala under observation for some days before being returned to his cell.
I deal first with the time of discharge. Dr Nikitins gave evidence that a patient who has had a fractured cheekbone repaired is usually discharged into the community 24 to 48 hours after surgery. Professor Weidmann had no criticism of the hospital’s decision to discharge Mr McFarlane: while Mr McFarlane had some pain, there were no symptoms of neurological deficit and discharge was appropriate. Mr McCulloch’s position too, was that there was no basis for any positive suspicion of subdural haematoma on 15 October 2005, the day of discharge.
In my judgment, the plaintiff’s complaint that he was discharged from hospital too soon is without foundation.
I turn to the adequacy of the discharge documentation. While I do not accept Mr McFarlane’s evidence that a staff member at the RAH sent with the prison officers who escorted him back to Yatala a discharge letter with instructions that he remain in the health centre under observation for three days, I find that a discharge letter was sent with the escort. I make that finding because Mr Abbott, the nurse who received McFarlane back in the infirmary upon his return, made notes which plainly refer to the discharge letter which appears in the hospital’s records. That letter[4] gives no instruction about three days’ observation. It notes that Mr McFarlane was alert, orientated and calm and was independent for all aspects of daily living upon his discharge. There is nothing in the letter which would have given Mr Abbott any reason to keep McFarlane in the health centre.
[4] Exhibit P4 pp 231 to 233.
The effect of the evidence of both Professor Weidmann and Mr McCulloch is that there is no basis for a finding that the RAH breached its duty as far as the content of the discharge letter is concerned. Professor Weidmann said that there was no need for the letter to include any reference to the possibility of subdural haematoma. The effect of Mr McCulloch’s evidence was that, were there neurological signs evident, then medical personnel would have responded to them in any event. Further, when asked:
Q…it wouldn’t be unreasonable or incompetent to fail to make reference to that in a discharge letter.
He answered
AProbably not.
In my judgment there is no basis for the plaintiff’s claim that the discharge documentation was inadequate.
The plaintiff’s next complaint is that he should have been kept in the health centre at Yatala for continuing observation rather than being returned to his cell.
There is nothing in the RAH documentation to suggest that he needed to be kept at the health centre. As I have mentioned, it is standard practice for a patient after a fractured cheekbone to be discharged into the community within one to two days. Mr Abbott made the appropriate observations and observed nothing abnormal before Mr McFarlane was returned to his cell. I find that Mr McFarlane was not exhibiting any neurological symptoms when Mr Abbott saw him upon his return from the RAH. I accept Mr Abbott’s evidence that, had he observed any neurological abnormality, not only would he have noted it but he would also have arranged for review by a doctor or arranged for Mr McFarlane’s return to hospital. I find that Mr McFarlane was not manifesting any neurological symptoms when Mr Abbott saw him on his return from the RAH.
Mr Abbott organised a medical review for 16 October but, on that day, Mr McFarlane declined to attend. I infer from that refusal, and I find, that he was not experiencing symptoms on that day. Further, even if Mr McFarlane had been kept in the infirmary for three days I cannot find that his remaining there would have made any difference because, on 19 October, the day on which he saw Dr Jennings, he was not exhibiting any symptoms. Accordingly, even if he had stayed for a few days under observation in the health centre, he would, at the end of the time, have been returned to his cell in any event.
There is no basis for Mr McFarlane’s claim that the prison health service was negligent in not keeping him at the health centre under observation for some time after his return from hospital.
I come now to Mr McFarlane’s third head of claim, namely, that the Yatala staff were negligent in failing to notice symptoms of a neurological deficit once he was back in his cell.
There are no notes between 16 October and 19 October, the day of the appointment with Dr Jennings. Owing to the lack of any note of a complaint by Mr McFarlane between those dates and to the fact that Dr Jennings made no note of any neurological abnormality, I find that Mr McFarlane was not experiencing or manifesting any symptoms up to and including 19 October.
I accept Professor Weidmann’s opinion that ongoing complaints of headaches were still fairly non-specific and are consistent with drug seeking behaviour. Drug addicted prisoners are often manipulative in their attempts to obtain narcotic analgesia.
21 October was the day upon which Mr McFarlane was to have had his sutures removed but that procedure was postponed owing to his complaints of headache and nausea. Mr Abbott, who saw Mr McFarlane on that occasion, did not notice any specific neurological impairment because, according to Mr Abbott’s usual practice, had he noted any such abnormality, he would have recorded it. Further, although Mr McFarlane complained in the early hours of the morning of 22 October that he was suffering from headache, his nausea had settled. Later in the same day, he was back at the health centre for removal of the sutures and there is no note of any relevant symptoms. I again infer from the lack of notes and I find that, at that attendance, Mr McFarlane was not complaining of headache or nausea.
I move to 24 October. At 4.15 am Nurse Schleicher attended at Mr McFarlane’s cell in his unit in B Middle. I must now mention the opportunity for observations available to a nurse in her situation.
A nurse attending a prisoner at his cell does not go into the cell proper but sees the inmate when he is speaking to the nurse through the ‘trap’ in the cell door. But the nurse is able to observe the inmate walk from the cell door to get water to take medication, is able to see that the inmate is in fact standing and, of course, is able to observe the inmate’s face and hear his voice. Nurse Schleicher observed all of those things, noticed no neurological deficits and was content for McFarlane to remain in his cell that night. I find that Mr McFarlane was not exhibiting any symptoms of neurological deficits when Nurse Schleicher saw him.
Later on 24 October, Mr McFarlane attended at the RAH outpatient department for post-operative review by Dr Nikitins, who noticed nothing abnormal. I find that Mr McFarlane was showing no signs of neurological impairment at outpatients on 24 October. As I have already mentioned Mr McFarlane denied seeing Dr Nikitins on that day.
On 25 October, the situation begins to change. Ms Ziniak, who had seen Mr McFarlane nearly every day since 15 October during the course of her morning buprenorphine round, saw him out of his cell in his unit on the morning of 26 October. She had a good opportunity to observe him and, to her, he looked unwell and in pain. Further, he told her that he had a blinding headache. Ms Ziniak asked the cell officers to take Mr McFarlane downstairs to the health centre for a review. Nurse Bridger, in the health centre, recorded that at 2.30 pm Mr McFarlane was complaining of leg pains, nausea, and blackouts. He asked for Panadeine Forte but was given aspirin and maxalon. Importantly, he was booked in to see Dr Clohesy on 27 October.
Mr Beaumont, another prison nurse, saw Mr McFarlane on his night rounds at about 8.00 pm on 26 October when McFarlane complained that he was ‘half paralysed’. The complaint is significant as it appears that the symptoms of a subdural haematoma were beginning to become apparent. But Mr Beaumont observed that Mr McFarlane was able to stand at the trap and was able to formulate a hostile argument. Mr Beaumont gave evidence that he wrote the note ‘I’m half paralysed’ to inform the next day’s staff of a behavioural issue rather than a physical symptom. I find that Mr Beaumont noticed no objective sign of neurological impairment and that his response to a possible ‘subjective’ sign – ‘I’m half paralysed’ – was reasonable in the circumstances.
On 27 October, Dr Clohesy saw Mr McFarlane in the health centre. He was walking slowly and complained of ‘odd feelings’ in his left arm and left leg. Even in the face of those complaints, Dr Clohesy noted that McFarlane was clinically well, communicative, cooperative and that his conversation was normal. Nevertheless, Dr Clohesy thought that there was sufficient risk of a neurological problem to order a CT scan as soon as possible. The scan was arranged for the following day. It was not suggested to Dr Clohesy that he should have ordered an earlier scan and, in Professor Weidmann’s view, which I accept, there was no basis to criticise Dr Clohesy for not doing so.
The entries for the next day support the view that, even on 28 October, Mr McFarlane’s symptoms were unclear. At 8.45 am, his unit staff were asking that he be admitted to the health centre as they were constantly having to pick him up off the floor. But, later in the day, Mr McFarlane was telling the unit staff that he felt better and did not want to go to the health centre despite what he had said to his mother – his message of the previous day. I find that Mr McFarlane, even at that late stage, was not exhibiting clear signs of a neurological deficit. But, as it turned out, he had the CT scan and an operation on that same day.
The expert evidence
Mr McCulloch first formed his opinion on the basis of entries in the hospital notes and various records from Yatala together with the account given to him by Mr McFarlane. On the basis of that information, Mr McCulloch was first of the opinion that there were neurological signs which should have alerted staff to the necessity for a CT scan of the brain as early as 15 October 2005. But Mr McCulloch was, quite naturally, influenced by what Mr McFarlane had told him. When he formed his initial views, he did not know of the evidence of Dr Nikitins and of the Prisoner Health Service staff that the absence of any notes of neurological symptoms is in fact positive evidence of an absence of such symptoms: had medical staff noticed such symptoms then they would have been noted. Armed with that knowledge, and leaving aside Mr McFarlane’s account, Mr McCulloch agreed that the stage at which further action was required was 26 October 2010, when Mr McFarlane complained of being ‘half paralysed’. Further, when Mr McCulloch first formed his opinion, he knew nothing of the circumstances in which Mr McFarlane made his complaint of being half paralysed. In evidence, Mr McCulloch agreed that that comment might be discarded if Mr McFarlane had been seen to walk to the trap from his bed without apparent difficulty and, once at the trap, had made his complaint in an angry and hostile manner. Mr McCulloch also accepted that such a complaint of paralysis might be treated differently had it been made in a hospital setting.
Professor Weidmann thought that the first sign of a possible subdural haematoma was also Mr McFarlane’s comment about being half paralysed. That comment was made at about 8.00 pm on 26 October 2005 was, according to Professor Weidmann, neurologically significant. But Professor Weidmann accepted that, given the fact that Mr McFarlane was in prison rather than in hospital, it was reasonable to delay arranging a scan until the following day. As it turned out, Mr McFarlane saw Dr Clohesy on that following day and Dr Clohesy ordered a scan.
The effect of the evidence of the experts is that the first warning sign of a neurological deficiency came on 26 October when Mr McFarlane complained about being half paralysed. But, as I have already mentioned, the nurse who received the complaint interpreted it, as I have said, as a behavioural issue rather than a physical symptom. The effect of Mr McCulloch’s evidence is that, taking into account what Nurse Beaumont saw and heard, Nurse Beaumont was reasonable in discarding the complaint as having any neurological significance.
When Dr Clohesy saw Mr McFarlane on 27 October, his observations led him to order a CT scan but, even on that day, Dr Clohesy noticed that Mr McFarlane was communicative, cooperative and alert. Given those observations, Dr Clohesy cannot be criticised for not ensuring that a scan was done earlier than 28 October. Indeed, it was not suggested to Dr Clohesy in evidence that he should have done so and Professor Weidmann did not criticise Dr Clohesy for not having done so. Speaking of the appointment with Dr Clohesy on 27 October 2005, Professor Weidmann wrote[5] :
As his conscious level remained normal at the time, this could not be classified as a medical emergency although one would expect a CT scan to be undertaken without undue delay. Ideally, the scan could have been undertaken on 27^th but there were probably good logistic or organisation reasons why this was not undertaken until 28^th October. The scan would have been better undertaken on 27^th October but it was not unreasonable for it to have been delayed until 28^th.
[5] Exhibit P1, p 61.
Even on 28 October, Mr McFarlane was telling prison staff that he felt better and did not want to go to the health centre. Even then, there were ‘mixed signals’.
Mrs McFarlane’s evidence about her telephone call to the prison on the morning of 28 October is of no assistance. By then, arrangements were in chain for the scan.
I find that Dr Clohesy’s response to his observations of Mr McFarlane on 27 October was reasonable.
In my judgment, prison staff acted reasonably up until the time Mr McFarlane underwent the scan and have not been shown to have been negligent at any stage.
Causation
If I am wrong that the defendant is not liable in negligence, the plaintiff’s would still fail because he has not proved that, had a CT scan and brain surgery been performed earlier, his outcome would have been better. It is not enough for him to show that his outcome may have been better[6]. Professor Weidmann’s opinion was that Mr McFarlane’s outcome may (my underlining) have been somewhat better if the surgery had been performed 24 hours earlier than it was[7]. Professor Weidmann went on to say that, while delaying surgery for 24 hours fell below the ideal (my underlining) standard,
…it did not fall below the standard one would normally expect for a competent general practitioner and nursing staff. Outcomes such as this are very commonly seen in neurological practice.
[6] Tebbit v Gett (2010) 240 CLR 537.
[7] Exhibit P1, p 62.
Mr McCulloch’s opinion on the causation issue is not clear. Initially, in his report, he said:
An operation by approximately 24^th October would probably have resulted in no brain impairment.
In cross-examination Mr McCulloch said[8]:
I think you could be certain with a high degree of certainty that if the operation had taken place, say, on 24^th, he would have had no neurological deficit long-term.
But when Mr McCulloch was reminded that he had originally suggested the 22^nd October as being the relevant date, he was unable to say why he had chosen that date. He said:
That date has been chosen by me on the basis that by 24^th in this history – no, I’m not sure if there is any specific reason for that but it was probably chosen as a date midway between the discharge from hospital and the ultimate operation date. So was it, in reality, the 24^th, the 25^th? Was it the 23^rd? I don’t know that I can state with certainty which of these dates it is.
Mr McCulloch stressed that ‘it’ was a continuum and that no definite answer could be given to the question of the date upon which, had surgery been performed, there would have been no brain impairment. Later in his evidence, he was asked this question:
QEven with full knowledge of some symptomotology along the continuum, you can’t be precise about when the operation might need to be performed for it to be more likely than not that there would be no likely residual impairment. That’s correct, isn’t it.
AThat’s correct.
QAnd it follows as a matter of logic, doesn’t it that if you don’t have full knowledge, then it is even more difficult to be confident in expressing such an opinion.
AConfident expression of opinion for a specific date, yes, that’s correct.
[8] T 362.
The plaintiff has not satisfied me on the balance of probabilities, that had his surgery been performed some 24 hours earlier, he would have had a better outcome.
Extension of time
The plaintiff seeks an order extending the time for the institution of these proceedings pursuant to s.48 of the Limitations of Actions Act, 1936. The discretion for the extension of time is not open unless the plaintiff satisfies me that facts material to his case were not ascertained by him until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within 12 months of the ascertainment of those facts by the plaintiff.[9] Further, a fact is not to be regarded as material to the plaintiff’s case for the purposes of the extension of time unless it forms an essential element of the plaintiff’s cause of action; or it would have major significance on the assessments of the plaintiff’s loss.[10]
[9] Limitations of Actions Act 1936 s.483(b).
[10] Limitations of Actions Act 1936 s.3(a).
In his statement of claim the plaintiff asserted as a material fact for the purpose of the section that, on 28 April 2008, he ascertained for the first time Mr McCulloch’s opinion that, on account of his injuries suffered as a result of the subdural haematoma, Mr McFarlane would not be suited in the long-term for working at heights. He also pleaded as new material facts a large number of other opinions expressed by Mr McCulloch in Mr McCulloch’s reports of 30 April 2008 and 14 April 2009.
The assertion of material facts and pleadings is insufficient for the exercise of the discretion to extend time. The plaintiff must produce evidence to satisfy me of the threshold condition in s.48(3)(b). He has failed to do so. Mr McFarlane gave evidence that he ‘remembered’ the report of Mr McCulloch of 30 April 2008 and that he read it. Further, on 23 April 2008, the day on which Mr McCulloch examined the plaintiff for the purposes of the report, Mr McFarlane remembered Mr McCulloch saying that his balance issues and short-term memory were not likely to improve very much and that Mr McFarlane would be wise to stay away from working on high rise buildings. But Mr McFarlane did not give any evidence of the ascertainment by him of any particular material fact or facts. Years earlier, Mr McFarlane had had appointments with other professionals, Professor Sharp and Dr Hooper, and, in the course of those consultations, they had described his condition. Indeed, some years earlier – ‘from pretty early in the picture’ – those medical advisors had made him aware that difficulty with his balance may affect his ability to work at heights.

The receipt of an expert’s report is of itself insufficient to enliven the discretion: the plaintiff must demonstrate to the court that, as a result of the report, he has ascertained a new material fact or facts. In my opinion he has failed to do.
If I am wrong and it should be decided that Mr McFarlane has established the relevant material fact or facts, then I would have exercised the discretion in his favour. The extension sought is modest and I think that there could still have been a fair trial. I accept the defendant’s submission that this case turns very much upon the precise times at which any symptoms of an evolving subdural haematoma may have been evident. In those circumstances, evidence of eye-witnesses in the prison is essential. Because they were simply going about their duties, various prison employees would not have cause to remember any particular symptoms. In those circumstances, I think that, even if the action had been instituted within time, the defendant would still have had to rely principally upon records made at the time. I do not think that the delay causes any great prejudice to the defendant on that count. Some witnesses or potential witnesses have died and others were unavailable owing to ill health. Whether or not their evidence would have assisted the plaintiff greatly had they been available is unclear. For these reasons, if I am wrong about the material fact issue, I am of the view that it would be just to grant an extension of time.
Conclusion
The plaintiff has failed to prove that the defendant was negligent. In the circumstances of this case I do not think it appropriate to assess damages should I be wrong about liability.
I dismiss the claim.