Metropolitan Health Service Board v King
[1999] WASCA 236
•11 NOVEMBER 1999
METROPOLITAN HEALTH SERVICE BOARD -v- KING [1999] WASCA 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 236 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:204/1998 | 22 JULY 1999 | |
| Coram: | MALCOLM CJ WALLWORK J ANDERSON J | 11/11/99 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | METROPOLITAN HEALTH SERVICE BOARD GEORGE THOMAS KING |
Catchwords: | Negligence Duty of care Hospital Patient Infection contracted from intravenous drip Whether caused by nurses' negligence Proof Courts and Judges Procedural fairness Finding as to date of negligent conduct not in conformity with pleadings or evidence No explanation by trial Judge No opportunity given to answer allegation of negligent conduct on that date New trial ordered |
Legislation: | Nil |
Case References: | Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1989-1990) 169 CLR 271 Dare v Pulham (1982) 148 CLR 658 Ring Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd (1971) 19 FLR 369 Water Board v Moustakas (1988) 62 ALJR 209 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Smith v Carbone Bros Pty Ltd, unreported; FCt SCt of WA; Library No 960369; 17 July 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : METROPOLITAN HEALTH SERVICE BOARD -v- KING [1999] WASCA 236 CORAM : MALCOLM CJ
- WALLWORK J
ANDERSON J
- Appellant
AND
GEORGE THOMAS KING
Respondent
Catchwords:
Negligence - Duty of care - Hospital - Patient - Infection contracted from intravenous drip - Whether caused by nurses' negligence - Proof
Courts and Judges - Procedural fairness - Finding as to date of negligent conduct not in conformity with pleadings or evidence - No explanation by trial Judge - No opportunity given to answer allegation of negligent conduct on that date - New trial ordered
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Appellant : Ms C F Jenkins
Respondent : Mr D I Connor
Solicitors:
Appellant : State Crown Solicitor
Respondent : Hoffmans
Case(s) referred to in judgment(s):
Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1989-1990) 169 CLR 271
Dare v Pulham (1982) 148 CLR 658
Ring Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd (1971) 19 FLR 369
Water Board v Moustakas (1988) 62 ALJR 209
Case(s) also cited:
Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Smith v Carbone Bros Pty Ltd, unreported; FCt SCt of WA; Library No 960369; 17 July 1996
(Page 3)
1 JUDGMENT OF THE COURT: The appellant operates Royal Perth Hospital and appeals from a judgment in the District Court dated 29 July 1998 in favour of the respondent. The respondent was a patient at the hospital on three separate occasions in 1995 and, shortly after his discharge on the third occasion, he was diagnosed as having suffered an enterobacter cloacae infection. The infection had lodged in his thoracic spine, setting up osteomyelitis at the L6/7 level. The condition required intensive treatment, which does not need to be detailed. The learned trial Judge found that the infection was contracted during the third period of hospitalisation and that it was caused by "a clear breach of the defendant's duty of care to the plaintiff". The breach of duty was pleaded to be and was found to be the negligent conduct of an unidentified night nurse employed by the appellant. No issue arises as to whether the appellant's liability is vicarious or personal. The learned Judge awarded the respondent $30,000 in damages.
2 There was evidence that the bacteria enterobacter cloacae belongs to a bacteria group strongly associated with hospital based infection. The organism resides in the bowel of hospital patients and can colonise any area in the hospital environment, including equipment. The bacteria are a known cause of infections of intravenous lines.
3 The respondent had undergone an emergency Hartmanns procedure during the first period of hospitalisation in July 1995 following upon a ruptured sigmoid diverticulum. The procedure involves a colostomy. The respondent made an uneventful recovery but elected to have the colostomy reversed. He entered Royal Perth Hospital for the second time, in November 1995, for an investigative procedure (called a flexisigmoidoscopy) to see whether the colon and bowel could be rejoined, and, the results being positive, he entered hospital again on 12 December 1995 for that purpose. The operation was performed on 13 December 1995 by the eminent surgeon, Mr Kubacz, and the respondent was returned to his ward, Ward 5A, at about 2.45 pm. He was given intravenous fluids by means of an intravenous drip.
4 The intravenous drip line ran to an intravenous cannula in the respondent's left arm from a fluid bag (called an IV bag) suspended above his bed. The fluid flowed at a controlled rate from the IV bag down the line and directly into the bloodstream through the cannula. The line divided at a point several centimetres upstream from the cannula to provide the respondent with the means to administer pain-killing fluids to himself. The analgaesics (morphine in this case) were self-administered by syringe as required. The operation of the syringe sent analgaesic fluids
(Page 4)
- down the so-called PCA line to the point of confluence with the drip line where it would mix with the fluid from the IV bag before entry into the respondent's bloodstream through the cannula. The letters "PCA" stand for "patient controlled analgaesia". The cannula was of the peripheral vein type. It was inserted into a peripheral vein (in this case in the left arm) and would generally remain in position for 72 hours. When a cannula has been in for about 72 hours the risk of infection increases, so cannulas are routinely resited about every 72 hours. IV bags contain up to eight hours' supply, so are changed a number of times while the cannula is at the same site. Generally, changing IV bags involves disconnecting and reconnecting the line at the bag end, not at the cannula end. There is not usually any need to interfere with the cannula or with the connection of the line to the cannula when a bag is changed. However, the line can be disconnected at the cannula if necessary.
5 The evidence was that, at this hospital, the insertion of the cannula into the vein is performed by a doctor, not a nurse; and that aseptic procedures are followed, including swabbing of the entry site, to guard against infection entering the patient's bloodstream. Once a drip is started it is the task of the nursing staff to monitor the drip and to change bags or PCA syringes as required. There was little evidence as to what is involved in resiting a drip. It may be inferred that the procedures that are followed are the same as those which are followed to insert the original cannula to start the drip.
6 As has been said, intravenous lines are a known cause of infection and the organism, enterobacter cloacae, belongs to a bacteria group which is associated with infections of intravenous lines. A cannula, which is simply a tube within the vein, provides a pathway by which an organism may directly enter the bloodstream. Bacteria can be present on a patient's skin at the cannula entry site, or on the hands of the medical staff, or in the IV set itself. Whilst extensive aseptic procedures must be adhered to when a cannula is being inserted and in dealing with the IV set, it does not follow from the fact of an infection that there was negligence. There was evidence that infection can occur without negligence. The respondent did not present a case of res ipsa loquitur.
7 The respondent's case was that the cannula that was in his arm was mishandled by a night nurse. He gave evidence that he was woken at about midnight by a female nurse carrying a torch. The nurse told him that she had "just come to change your drip". His evidence was as follows:
(Page 5)
- "So you were woken up by the torchlight and the nurse has told you that she has come to - - -?---She's changing the drip.
So what has she done then?---She was fiddling with the line that comes down into the needle into my arm - the cannula thing - and she was trying to unscrew that and she couldn't do it. She said it was very tight. Anyway she put the torch on the bed to shine on my arm and then she unscrewed the - - -
Using?---Her two hands, and when it came apart - it was pretty tight - it lifted up and it lifted the needle and pulled the plaster off the top of my arm and lifted the needle up and I felt pain in my arm."
8 The respondent's evidence was that the entry site commenced to bleed, whereupon the nurse reached over and got some "Kleenex tissues off the cupboard - the bedside cupboard - and she was mopping up the blood". He said that she then "screwed the line onto the needle and then laid it back down on my arm but there was still blood coming from under the needle, so she got some more tissues and folded them into a few thicknesses and, sort of, lifted the needle up again and put the tissue against the needle". He said that the "needle came out of my arm a little bit, about a quarter of an inch, and when she pushed it back down onto the tissues, then she pushed it back into my arm and then just slid the tissue out and then taped it down again and then she left".
9 The events thus described by the respondent were referred to in the pleadings and throughout the trial and during the appeal as "the cannula incident" and that term will be used in this judgment.
10 The evidence was that the "needle" or cannula is in fact not a needle but a thin, flexible plastic tube, but nothing turns on that.
11 The respondent gave evidence that these events concerned him. He said he "thought it was very strange that she didn't have any gloves on or anything and she didn't - there was no antiseptic used, specially with the AIDS thing and all that. I thought it was very strange."
12 There was evidence on which his Honour was entitled to find that cannulas do become dislodged. There was also evidence on which he could find that once a cannula has been dislodged or partly dislodged a nurse should not attempt to push it back in. Apart from anything else the risk of infection is too high. The cannula should be removed and a new cannula inserted at another site by a doctor using proper aseptic
(Page 6)
- procedures. Therefore, if the events described by the respondent did happen, it was open to find the nurse was negligent.
13 The respondent said that the next morning (that is, the morning after the cannula incident) "I woke up and my arm was swollen". Asked where the swelling was, he said, "where the needle went into my arm". He described that site as being "red and swollen". Encouraged to be more specific, he said, "red around the area where the needle goes in". He described the size of the area of redness as being "probably five inches, five inches round". He gave evidence that he reported this to a "male sister" in the ward. His evidence as to this was as follows:
"Right. That was the next morning when you woke up?---Yes.
About what time was that?---Probably around 7 o'clock, something like that; 6.30, 7 o'clock.
All right. Do you remember doing anything when you observed that it was swollen and red?---I saw the male sister in the morning and I told him what had gone on with the needle on the previous night and he came and he had a look and he said, 'I'll have something to say to her'."
14 Naturally, the appellant sought particulars of the cannula incident and of when it was alleged that the incident occurred. The appellant would obviously need the particulars in order to identify its witnesses. The particulars would also enable the appellant to assess the plausibility of the respondent's account of the incident and investigate and defend the respondent's claim of a causal link between the alleged incident and the enterobacter cloacae infection.
15 On 8 April 1998 - only some three months before trial - the following particulars were introduced into the statement of claim by amendment:
"4.3 On the night of 13/14, 14/15 or 15/16 December 1995 the plaintiff's IV drip bag was being changed by a nurse whose name is unknown to the plaintiff.
4.4 Whilst the nurse was attempting to unfasten the plastic tube from the cannula she dislodged the cannula such that it slid partially out of the plaintiff's left arm causing the plaintiff to suffer a sharp pain and the plaintiff's arm to
(Page 7)
- bleed from the point of the plaintiff's arm where the cannula entered his arm.
- 4.5 The nurse mopped up the blood using Kleenex tissues, changed the saline bag and then after mopping up some further blood slid the cannula back into the plaintiff's arm.
4.6 The nurse did not wash her hands or swab the cannula site with antiseptic solution prior to sliding the cannula back into the plaintiff's arm.
5. Further, the morning following the incident, the plaintiff reported same to other members of the defendant's nursing staff."
16 According to these particulars, the cannula incident happened no earlier than the night of 13/14 December and no later than the night of 15/16 December. The respondent's evidence at trial was in conformity with these particulars except that the respondent denied that the incident happened on the night of 13 December - the first night after surgery. Whilst the respondent did not give evidence of specific dates, what he said was to the effect that the cannula incident did not happen on the first night after the operation but on the second or third night. It is as well to set out the respondent's evidence about this. It is contained in the following cross-examination:
"When you say this incident occurred do you remember how long the IV line had been in, how long had it been since the surgery had occurred?---About three days after the - around about three days after the surgery; two or three days.
So it wasn't the first night?---No.
You don't think it was the second night?---No. It was the second or the third. It's two and a half years. It's a bit hard to remember.
You say this would have been some time after midnight?---Yes.
Because you were asleep at the time this incident occurred?---Yes, I was."
17 In another part of his evidence, the respondent said he had been watching television until about 11 pm and had then gone to sleep and had been asleep for some time before being woken by the nurse with the torch.
(Page 8)
18 This evidence left only two nights which the appellant needed to trouble about at the close of the respondent's case. The "second night" was 14-15 December. The "third night" was, of course, 15/16 December.
19 The appellant proved that the hospital rosters provided for three shifts, they being the morning shift commencing at 7 am and finishing at 3.30 pm, the afternoon shift commencing at 1 pm and finishing at 9.30 pm, and the night shift commencing at 9 pm and finishing at 7.30 am. The appellant proved that the only male nurses on duty in Ward 5A during the morning shifts on 15 or 16 December were Nurse Philip Carr and Nurse Craig Doherty. These two male nurses did the morning shift on one day only of those two days, that being Friday, 15 December. From this it followed that, if the respondent's evidence was to be accepted that on the morning after the cannula incident he reported it to "the male sister", the incident must have happened during the night of 14/15 December.
20 The appellant called the two male nurses. Neither could positively remember the respondent although they each accepted from the ward records that he was a patient in Ward 5A on the day in question. They each gave evidence that they had no recollection of any complaint being made to them by a patient of any redness or soreness at an intravenous site. Each gave evidence of the procedures they would have followed had such complaint been made. They said attention would have been paid immediately to the complaint and a report made to the duty doctor. Each stated that he would have recorded the matter in the nursing notes.
21 The two night nurses on duty in Ward 5A on that night were called, they being Nurses Karen Whiting and Carol D'Amore. Whilst neither of these nurses could positively remember nursing the respondent, they both firmly denied that they would do the things that the respondent said were done and by which he alleges he became infected. Both made the point that when an IV bag needs to be changed, there is no need to interfere with the cannula. Both denied that they would push a dislodged or partly dislodged cannula back into the vein. Nurse Whiting said, at AB 308, "it's simply not a nursing thing that we push cannulas back into veins, under the skin". Nurse D'Amore said she would not change an IV line without using a new cannula. She would not put a new sterile line onto an old cannula (AB 319).
22 Concerning the respondent's evidence that the nurse in question told him she had come to change his drip, there was uncontradicted evidence that, at this hospital, a bag change should be undertaken by two nurses -
(Page 9)
- one to change bags and the other to check that the correct infusion was supplied. A record of the change was required to be made in the fluid treatment chart and the record was required to be initialled by both nurses. The fluid treatment chart was in evidence and it purported to show that the respondent's IV bag was changed at 8 pm on 14 December, and again at 5 am on 15 December. According to the chart, no bag change was made between those times on that night. If the two nurses on duty that night did change the IV bag during the night, they made no record of it in the fluid treatment chart.
23 The learned trial Judge had to decide whether to accept the respondent's evidence as to the happening of the cannula incident or whether, in the light of the evidence of the four nurses and the fluid treatment chart, he should reject the respondent's evidence. His Honour stated his conclusions in the following terms:
"Quite understandably none of the persons who nursed the plaintiff can recall any particular incident and it is not surprising that when asked what their ordinary procedure was or would have been at the time, they gave an answer which accurately recorded both their training and the established hospital protocol in relation to the insertion, removal and resiting of intravenous cannulas, which protocol was not in dispute between the parties. It was agreed that a cannula which has become partially or completely dislodged from its original placement position should never be reinserted because of the danger of introducing bacteria from surrounding skin directly into the bloodstream. As a number of witnesses recorded however, notwithstanding training and protocols, such incidents do occur and have occurred. Additionally, as a number of witnesses noted, hospital records are not perfect and in a busy hospital under-staffed and overworked, it is not at all surprising that some incidents thought minor at the time may not be accurately reported or recorded at all. For my part, I have no difficulty in accepting the plaintiff's evidence. I thought him credible and a witness of the truth. I thought it highly unlikely that he would invent such a story and I find as a fact that the cannula incident as described by the plaintiff did occur."
24 The finding that the cannula incident did happen was a finding which was open. It was for the learned trial Judge to weigh up the respondent's evidence in the light of the evidence as a whole and decide whether he was persuaded by it that the cannula incident happened. He had the
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- advantage of seeing and hearing the witnesses give their evidence. It cannot be said that the respondent's evidence on this particular matter was inherently implausible or was overwhelmed by other credible evidence or that the evidence in contradiction of the respondent's evidence was so cogent that it ought to have been accepted. There was evidence that there were at least some omissions from the treatment records. The nurses frankly admitted that they were able to give evidence in relation to the events in question only by a process of reconstruction, not from any independent recollection of the events themselves.
25 However, the finding that the cannula incident happened was not by any means the end of the matter. The question remained as to whether it was the cause of the respondent's enterobacter cloacae infection. That was something that could only be proved by inference from the temporal succession of events assisted by the opinion of experts. The appellant submits that it is at this point that the trial miscarried.
26 There was uncontradicted evidence in the ward records that on 16 December, at about 10.30 am, the cannula site was found to have "tissued" and that the cannula was removed from that site to be "resited". See especially the entry in the PCA chart for 16 December (reproduced at AB 378 C - D): "IV tissued 1030. Awaits resite". The expression "tissued" was not precisely defined in the evidence. It is reasonably clear, however, that it does not denote infection. At all events, there is no record of the presence of signs of infection such as inflammation and soreness at the site from which the cannula was removed on 16 December, and so far as appears, infection was not the reason for removal. The ward nursing report shows, as his Honour acknowledged at p 9 of his judgment (AB 13 D - E), that by 8.45 pm on that day, the drip had been restored. The relevant report is reproduced at AB 403. Obviously, the drip would have been inserted at a different site. The learned trial Judge seems to have thought that the drip was resited to the right arm, but this was clearly not so. It was still in the left arm but, it must be inferred, at a new site. The drip was not resited to the right arm until later.
27 It should here be recorded that the evidence of the PCA chart, the drug chart and nursing report shows that, for a period of some hours on 16 December - much of the day, in fact - the respondent's drip was out and awaiting resiting, so that he could not receive infusions of morphine or of any intravenous fluid. It may be thought surprising and as reflecting on the reliability of the respondent's evidence that he did not remember this. He did not remember being without his PCA or IV fluids for most of the
(Page 11)
- day, or that the cannula was resited in his left arm. Neither, it seems, did he remember the tissuing incident.
28 Now, the evidence of the resiting of the cannula in the left arm obtains significance, according to the appellant, because the first recorded observation of a drip site infection is on 18 December, two days later. There seems little doubt that this infection, the signs of which were inflammation and soreness, was at the second site. His Honour seems to have accepted that this was so, but anyway the evidence to that effect is overwhelming. If, therefore, the cannula incident occurred at about midnight on 14 December, or really at any time before 10.30 am on 16 December, the cannula incident would have to be exonerated from blame for this infection. It is not known how far apart the two sites were, but there was no suggestion that the infection at the second site was caused by negligent handling of the cannula at the first site, or that both sites became infected. The subject was not touched on at all in the evidence.
29 A possibility that might have suggested itself was that the infection at the second site was a red herring, so to speak, and that the enterobacter cloacae infection had already entered the respondent's body at the first site upon the happening of the cannula incident, without setting up any signs of infection at that site. His Honour did not make that finding. It would have been a finding that was against the opinions of two highly qualified specialists called by the respondent. One of these, Dr Robert Baird, is a medical practitioner specialising in microbiology and infectious diseases. He gave evidence that if, as was recorded in the notes made by the nursing staff on 18 December, the drip site was "red and painful to touch" in circumstances where the patient had a fever and there was "no other obvious cause of fever, you would assume the drip site was the cause of the fever". That is to say, the infected IV site (unquestionably the second site), was the point of entry. The respondent also called Dr Brian Dwyer, a pathologist also specialising in infectious diseases. In his report, exhibit 7.1 at AB 468 and particularly at AB 471, he gave the firm opinion that the inflamed intravenous site (once again, the second site) was the point of entry into the blood of the enterobacter cloacae organism. In the result, and always taking it that the cannula incident happened on the night of 14/15 December or at some time prior to removal of the cannula from the first site at 10.30 am on 16 December, there was no evidence that it was the cause of the infection in question.
30 One might have expected that to be the end of the case.
(Page 12)
31 The learned trial Judge appreciated the force of the submissions made on behalf of the appellant that, if the cannula incident happened before the drip was resited on 16 December, it could not have caused the infection in question, but he considered that this was not really a difficulty for the appellant. He resolved it by finding that the cannula incident happened later, after the resiting of the cannula to the second site in the left arm. What he said was this:
" … I find as a fact that the cannula incident as described by the plaintiff did occur. I am unable to say precisely when it occurred, for it is sufficient for my purpose to say that it occurred in the evening of either 16/17 or 17/18 December 1995."
32 It must be said at once that a finding that the incident occurred on the night of 17/18 December cannot be sustained on the facts. Neither of the male nurses were on duty on that morning shift. By 8 am on 18 December, the respondent had developed a high fever with a temperature of 38.3ºC and he suffered feverish rigors while he was being showered, during which he lost consciousness. He recalled these events, and no challenge was made to the accuracy of the hospital records in respect to them. The evidence of the events of the day left no room to find that this was the day after the cannula incident. The respondent's own evidence was that it was not.
33 The question which now must be answered is whether the finding that the cannula incident happened on the night of 16/17 December was open on the pleadings and having regard to the way in which the case was contested at trial.
34 Reference has already been made to the particulars in the statement of claim which plead that the cannula incident happened on one or other of three nights, that is the night of 13/14, 14/15 or 15/16 December. The general rule is that parties should be held to their particulars. The rule is based on fairness. The purpose of pleadings and particulars is to give each party fair notice of the case that has to be met so that each party is afforded an opportunity of meeting the case against him or her - Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1989-1990) 169 CLR 271, at 286.
35 The rule is not inflexible and the trial Judge has a wide discretion to allow particulars to be amended to accord with the evidence and even to award a verdict where the evidence, otherwise satisfactory, disconforms to
(Page 13)
- the pleaded case - Water Board v Moustakas (1988) 62 ALJR 209, at 211; Dare v Pulham (1982) 148 CLR 658, at 664; Ring Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd (1971) 19 FLR 369, at 371.
36 In the general run of negligence cases, the date upon which the incident occurred by which a plaintiff has sustained damage is of little materiality. If an accident is pleaded to have occurred on a certain date, and when all the evidence is in, it is clear that the accident occurred on a different date, there is not usually any difficulty. The proper procedure is to amend the pleadings or the particulars to bring them into precise conformity with the evidence and leave will usually be given to do so. But there may be cases in which the pleaded date is of critical importance. Whether or not an event occurred on the pleaded day may bear directly on the question whether it occurred at all or, if it occurred on that day, whether it was causative of the damage. The appellant's main argument is that this is such a case. This is because, even if the cannula incident did happen, there was a real question whether it caused the enterobacter cloacae infection - and critical to that was the question whether the incident occurred before or after the resiting of the drip on 16 December. Therefore, from beginning to end, the case was not only about whether the cannula incident occurred, but when it occurred.
37 It is contended on behalf of the appellant that, on the pleaded case and on the respondent's own evidence at trial, the cannula incident occurred at a time which exonerates it from blame for the subsequent infection. Therefore, it is contended, the verdict should have been in favour of the appellant. It is contended that the trial Judge was not entitled to overcome that difficulty for the respondent by making a finding, unsupported by any evaluation of the evidence, that the incident occurred on a different date. This is not, it was submitted, a case in which there was merely a divergence between the pleadings and the evidence, which could be cured by amendment to the pleadings. The respondent's evidence was actually in conformity with the pleadings. On behalf of the appellant, it was submitted that there was simply an unfair and unexplained departure by the learned Judge from the case that was pleaded and attested to by the respondent at trial. It was said to be unfair because the appellant had conducted its whole defence on the basis that it was the respondent's case that the cannula incident happened on one of three particular nights, and had no notice of and no opportunity to present a defence in relation to a claim that it happened on a fourth night. The finding was said to be unexplained because no reason was given by his Honour for the finding that he made.
(Page 14)
38 These submissions must be accepted. An examination of the transcript reveals that the appellant did conduct its defence on the understanding that only the nights of 13/14, 14/15 and 15/16 December were relevant. The nurse manager, Nurse Hannam, was called to give evidence as to which night nurses were on duty specifically on those nights and she produced the roster from which she identified Nurses Whiting and D'Amore as being the night nurses on duty on 13/14 and 14/15 December and Nurses Memery and Chad as being the night nurses on duty on 15/16 December. She was not asked who was on duty on any other night. As has been related, Nurses Whiting and D'Amore were called and gave the evidence already outlined. They gave no evidence relating to the night of 16/17 December, nor could they have done so as neither was on duty on that night. Nurse Memery was called. She confirmed that she was on duty on the night of 15/16 December and gave evidence that she was also on duty on the following two nights. The questions directed to her in examination-in-chief and in cross-examination, however, really related only to her activities on 15/16 December. Whilst she did make passing reference to some entries in the hospital records on the subsequent nights, it is fair to say her activities on those nights were not really investigated. Her partner, Nurse Chad, was not called because she had returned to England and was not available. But, anyway, Nurse Chad is not shown on the roster as having been on duty on the night of 16/17 December, and the inference is that she could have given no evidence about that night. Nurse Memery's partner on 16/17 December is shown on the roster to be Nurse Janet Pye. As the pleadings stood, and in light of the respondent's evidence as to when the cannula incident happened, there was no reason to call Nurse Pye, and she was not called.
39 On behalf of the respondent, Mr Connor submitted that the appellant was not prejudiced by not receiving notice that the learned trial Judge intended to include the night of 16/17 December as a night on which the cannula incident might have happened. He submitted that it was most unlikely that any of the nurses could have spoken of the events of the night except by reconstruction from the treatment records. That was not quite how Mr Connor put it, but that is the substance of it.
40 It is true that Nurse Memery had no independent recollection of the events of 15/16 December. No doubt, therefore, it is quite unlikely that she would have remembered anything about the next night. But Nurse Pye, who was on duty with her on that night, was not called. Perhaps she would have been, if the night had been one of the nights particularised in the pleadings and attested to as one of the nights on
(Page 15)
- which the incident might have happened. The quality of the evidence she might have given is not known. Furthermore, if the respondent had given evidence that the cannula incident had happened on this night, when the cannula had just that very evening been resited, perhaps cross-examination would have taken a different course. The point is that the appellant had no opportunity to prepare a case on the basis that the incident was alleged to have happened on the night of 16/17 December
41 Putting questions of prejudice to one side, there is another reason why it must be held that the trial miscarried. The learned trial Judge gave no reason for deciding contrary to the pleaded case and contrary to the respondent's own evidence that the incident occurred "in the evening of either 16/17 or 17/18 December 1995". It is not possible to identify with any confidence at all the evidence that was relied on or the process of reasoning that led to that critical finding.
42 Unfortunately, there must be a new trial.
43 For these reasons, the appeal should be allowed and the judgment of the learned trial Judge set aide.
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