Scout Association of Australia, Norris v Asplet

[1997] QCA 352

IN THE COURT OF APPEAL	[1997]QCA 352
SUPREME COURT OF QUEENSLAND

Appeal No. 2063 of 1997.

Brisbane

[Scout Assoc. of Aust. & Anor. v. Central Regional Health Authority]

BETWEEN:

THE SCOUT ASSOCIATION OF AUSTRALIA

QUEENSLAND BRANCH

(First Defendant) First Appellant

AND:

LYNDSAY RAYMOND NORRIS

(Second Defendant) Second Appellant

AND:

CENTRAL REGIONAL HEALTH AUTHORITY

(Third Defendant) Respondent

TROY WEST ASPLET (by his next friend

JOYCE KATHERINE ASPLET)

(Plaintiff)

___________________________________________________________________

Pincus J.A.
Moynihan J.

Ambrose J.

___________________________________________________________________________

Judgment delivered 14 October 1997

Separate Reasons for Judgment of each member of the Court, each concurring as to the orders made. ___________________________________________________________________________

APPEAL ALLOWED WITH COSTS; SET ASIDE ORDERS 3, 4 AND 5 MADE BY THE LEARNED PRIMARY JUDGE ON 4 MARCH 1997 AND SUBSTITUTE THEREFOR THE FOLLOWING ORDERS:

3.          IF THE PLAINTIFF RECOVER FROM THE THIRD DEFENDANT MORE THAN 70% OF THE SUMS TO WHICH THE PLAINTIFF IS ENTITLED UNDER ORDER 2, THEN THE THIRD DEFENDANT MAY ENTER JUDGMENT AGAINST THE FIRST AND SECOND DEFENDANTS FOR THE AMOUNT OF THE EXCESS, WITH COSTS OF ENTERING JUDGMENT.

4.          IF THE PLAINTIFF RECOVER FROM THE FIRST AND SECOND DEFENDANTS MORE THAN 30% OF THE SUMS TO WHICH THE PLAINTIFF IS ENTITLED UNDER ORDER 2, THEN THE FIRST AND SECOND DEFENDANTS MAY ENTER JUDGMENT AGAINST THE THIRD DEFENDANT FOR THE AMOUNT OF THE EXCESS, WITH COSTS OF ENTERING JUDGMENT.

___________________________________________________________________________

CATCHWORDS: PERSONAL INJURY - negligence - apportionment of responsibility

between the appellants and the respondent - whether respondent’s negligence broke chain of causation between negligence of appellants and plaintiff’s injury - appellants negligent in allowing plaintiff to use flying fox when it required re-tensioning - respondent negligent in failing to diagnose hip dislocation - whether for respondent to be negligent gross negligence must be found.

Mahony v. J Kruschich (Demolitions) Pty Ltd (1985) 156 C.L.R. 522

Counsel:	Mr S C Williams QC, for the appellants. Mr P Keane QC, with him Mr G Britton, for the respondent.
Solicitors:	Gadens Ridgeway for the appellants. Minter Ellison as t/a for Grant & Simpson for the respondent.
Hearing date:	29 September 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2063 of 1997.

Brisbane

Before Pincus J.A.

Moynihan J. Ambrose J.

[Scout Assoc. of Aust. & Anor. v. Central Regional Health Authority]

BETWEEN:

THE SCOUT ASSOCIATION OF AUSTRALIA

QUEENSLAND BRANCH

(First Defendant) First Appellant

AND:

LYNDSAY RAYMOND NORRIS

(Second Defendant) Second Appellant

AND:

CENTRAL REGIONAL HEALTH AUTHORITY

(Third Defendant) Respondent

TROY WEST ASPLET (by his next friend

JOYCE KATHERINE ASPLET)

(Plaintiff)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14 October 1997

T W Asplet obtained judgment in the Supreme Court against the appellants and the respondent

in the sum of $681,142.15 on the basis that he suffered personal injury caused by negligence. The

judge’s order made the appellants on the one hand and the respondent on the other each responsible

for half the damages; his Honour also made certain orders as to costs. The appeal challenges the

apportionment of responsibility between the appellants and the respondent. It is also argued that the respondent’s negligence broke the chain of causation between the negligence of the appellants and the

injury of which the plaintiff had complained; the content of the notice of appeal does not seem to me

appropriate, as a basis on which to put the latter argument.

The primary judge found that the plaintiff had been injured when his left leg struck a log while

he was using a flying fox, that this caused a dislocation of his left hip, but that injury was not in the first

instance diagnosed. His Honour took the view that there was negligence on the part of the appellants,

the Scout Association and an assistant Scout leader, in relation to allowing the plaintiff to use the flying

fox and also negligence on the part of the respondent health authority in its failure to diagnose, in the first

instance, the condition from which the plaintiff suffered, namely a dislocation of the hip.

It is possible that there was some confusion at the trial, as to the issues sought to be raised by

the appellants. In the primary judge’s reasons, his Honour first considered a question of law which in

his view arose, namely whether it was necessary, in order that the respondent be found guilty of

negligence, that it be held grossly negligent. Counsel have told us that this argument was not put, but

that in fact the appellants sought to convince his Honour that there was such a break in the chain of

causation as I have mentioned. What was intended to be submitted on behalf of the appellants was

based on the principles discussed in the reasons of the High Court in Mahony v. J Kruschich

(Demolitions) Pty Ltd (1985) 156 C.L.R. 522, especially at 530. There the Court held in effect that

if a plaintiff suffers injury as a result of the negligence of a first defendant, but the consequences of the

injury are considerably worsened by extraordinarily bad medical treatment by a second defendant, the

worsening may not be attributable to the negligence of the first defendant; the chain of causation is

broken.

As will appear, I have reached the conclusion that the primary judge was not obliged to find that

there was such a high degree of medical negligence as is mentioned in the passage to which I have

referred from Mahony’s case; it seems possible, however, that to some extent a misunderstanding

concerning the submission made about the respondent’s alleged gross negligence affected the resolution

of other issues.

The judge found that the Dolphin Scout Group went on a week-end camp in 1986 and was in

that camp on 8 March of that year. When Mr S J Mills, on whose evidence the judge relied, arrived

at the camp a flying fox had been strung across a creek which contained a swimming hole. This was

done to enable scouts to ride down holding on to a handle attached to a pulley and when they reached

the swimming hole, let go of the handle and fall into the water. The rope on which the flying fox ran was

attached to a vehicle owned by the appellant Norris, and Mr Mills said the scouts were told, after the

flying fox had been in use for some time, not to use the flying fox further because it needed re-tensioning.

According to Mr Mills’ evidence, which as I have said the judge was prepared to accept, when the

instruction not to use the flying fox was given the plaintiff made some comment which was described as

a "grumble". Despite the instruction, the plaintiff used the flying fox; his left leg struck a log producing

a hip dislocation which was not initially diagnosed. The judge’s view about the negligence of the

appellants was as follows:

"Young scouts were left unsupervised at a flying fox which needed retensioning. There was an obvious risk that a scout using the flying fox in that condition would strike the log. The former scouts were cross examined about being expected to obey orders. However, in my opinion, the first and second defendants [now appellants] cannot surrender the obligation to supervise the use by young scouts of dangerous equipment by giving one command. Dissent had been registered, and, if discipline was to be maintained, there needed to be a much clearer basis given for the prohibition and some indication that the delay would be brief, but necessary. An unsupervised prohibition which the young scouts apparently thought was unreasonable is not adequate."

In short, in the judge’s view (which was not challenged before us) the appellants were liable because

they should not have assumed that the scouts, and in particular the plaintiff, would obey the instruction

given and they should have taken further steps to protect the plaintiff. As I have explained, none of this

is challenged and the appeal is to be decided on the basis that the appellants were themselves guilty of

negligence in the way the judge found them to be. Nevertheless, it should be noted that, on the judge’s

findings, the negligence found against the appellants was hardly of a very reprehensible character; their

fault was that they failed to take the steps they should have taken to ensure that the direction that the

flying fox be left alone for the time being was obeyed. In the plaintiff’s evidence he admitted that he was

aware, when he used it, that the flying fox needed re-tensioning.

When the plaintiff was injured he was promptly taken to the Gladstone hospital, arriving there

within half an hour from the time when he was injured. The critical point in the case is whether the judge

properly assessed the negligence of a junior doctor, whom I shall call "the initial examiner", in failing to

notice that the plaintiff’s left hip had sustained a serious injury. That doctor apparently assumed the

injury was to the left knee only; the blow from the log was to the knee.

At the time the initial examiner was questioned about his findings more than 10 years had

elapsed since the events the subject of this litigation. Although some of what was said in evidence

seemed to imply that the initial examiner recalled his examination, apart from the content of his notes,

that was not I think the view he himself took. When asked what recollection he had apart from the

notes the doctor answered:

"Extremely minimal recollection apart from the notes which I have had the chance to view. I guess I can’t honestly say how much I remember from the notes and how much spontaneously. All I recall that I could say might be spontaneous is of an obese young fellow who had had an injury to his leg. I really can’t recall anything else without reference to the notes."

Reading this answer in the context of the evidence given, it appears to me that what the doctor

intended to convey was not that reading his notes brought the incident, and in particular, aspects of it

not mentioned in his notes, back to mind, but that he could swear to nothing about the relevant events

of 8 March 1986 except the content of his notes and the fact that the plaintiff was obese, young and had

injured his leg. Some of the answers which the examining doctor, who is not in any relevant speciality,

gave appeared to be an attempt, and not I think a very useful one, to reconstruct the thoughts he would

or might have had at the time. For example, when asked about his failure to diagnose the dislocated

hip, he remarked:

" . . . I guess there were several causes for my failure to do that . . . "

It is not clear to what extent the primary judge took notice of the discussion by the initial

examiner of possible reasons for his failure of diagnosis. His Honour was satisfied that at the initial

examination there were signs of a hip dislocation present, namely rotation, shortening of the left leg and

muscle spasm and that a reasonably competent medical practitioner trained (as the initial examiner then

was) to the level of a second year resident, would have observed those signs and ordered X-rays of

the hip. In arriving at those conclusions his Honour expressed a preference for the evidence on that

issue of Dr Curtis and Dr Morris, orthopaedic surgeons who gave evidence before him, to that of

Dr Maguire. His Honour was also satisfied that an X-ray of the plaintiff’s left femur which was in fact

taken showed that the head of the femur was not in its socket and that the initial examiner’s failure closely to examine that X-ray constituted a failure to consider material from which a proper diagnosis

could be made.

In short, the primary judge, on the basis of evidence of Dr. Curtis and Dr. Morris, was satisfied

that the initial examiner should have detected the condition of hip dislocation which was then present.

This was an important conclusion, for that failure had consequences which were disastrous for the

plaintiff. The evidence was that the blood supply to the head of the femur diminishes fairly soon after

a hip dislocation and for that reason it is very important to detect and correct the dislocation quickly.

The evidence also showed that the failure of the respondent, by the initial examiner, to detect the signs

which, as the judge found, must have been there to be seen, produced the result that by the time when

(considerably later) a general practitioner Dr Warne was consulted and found the - on his evidence,

"immediately obvious" dislocation - it was too late to prevent avascular necrosis at the site, which had

already taken place. In that condition, the head of the femur dies because of absence of blood supply.

The strength of the appellants’ case against the respondent was that, on the evidence, the injury

which the plaintiff suffered was one which could have been expected to be treated, with an expectation

of a low level of disability; because of the delay in diagnosing the condition, however, the injury has

resulted in the plaintiff being grievously disabled. The primary question in the appeal is whether in these

circumstances, the judge’s view that there was no basis for discriminating between the effect of the

negligence of the appellants and that of the respondent, in apportioning liability, can be supported. The

appellants contend that there was, as I have mentioned above, a break in the chain of causation leading

from their negligence and alternatively suggest that the failure to make what should have been a fairly
simple diagnosis should be considered by far the principal cause of the plaintiff’s ultimate condition.

It seems clear, at least as a matter of inference, that the primary reason for the initial examiner’s

mistake was his having paid undue attention to the fact that the patient (the plaintiff) felt pain in the region

of the knee and thigh, not in the hip. According to the evidence of Dr Morris, a dislocated hip is a

condition which is but rarely missed on examination, but if it is left untreated for more than 24 hours bad

results are likely to ensue, as they did in this case. The evidence was to the effect that a well-known

characteristic of hip injuries, particularly in children, is that the pain they produce is referred to the knee;

Dr Curtis said he would expect a resident medical officer to be on his guard for the possibility of hip

dislocation in the presence of the clinical picture which, the judge found, was there to be seen; Dr Curtis

said he could not excuse the initial examiner in not examining the plaintiff’s hip. In 21 years experience,

Dr Morris could recall no instance in which what he described as an isolated dislocation of the hip had

produced avascular necrosis.

On the judge’s findings, against the background of such evidence, the error which was made

appears to have been a particularly serious one. What was in all probability going to be a quite good

outcome was turned into a very bad one by carelessness; as appears from the evidence, the initial

examiner did not even look at the hip nor did he, it appears, take the trouble to study that X-ray which

showed that there was likely to be a hip abnormality. But it is clear, in my view, that the error the initial

examiner made was not in the category spoken of by the High Court in the case relied on by the

appellants: Mahony v. J Kruschich (Demolitions) Pty Ltd. One could hardly describe the initial

examiner’s mistake as being, for example, "completely outside the bounds of what any reputable medical practitioner might prescribe". It is true that the evidence was that medical students are

repeatedly told about the necessity of being on their guard for referred pain going to the knee joint,

described in the evidence as "a trap for young players"; nevertheless, the mistake was not of the kind

which the High Court had in mind when discussing a break in the chain of causation.

A more difficult point is whether the judge’s having declined to discriminate, when apportioning

responsibility, the appellants’ negligence from that of the respondent can be supported. The passage

in which his Honour reached his ultimate conclusion on that point is as follows:

"It does not seem to me that it is possible to differentiate between the defendants in apportioning responsibility. In each instance there was a serious departure from proper standards of care. Statistically the negligence of the first and second defendants may have left the plaintiff with the serious consequences of avascular necrosis even if the third defendant had promptly diagnosed and treated the dislocation. However, the third defendant’s negligence ensured that the avascular necrosis occurred."

The appellants’ omission to reinforce the direction which was given, to leave the flying fox alone

until it was re-tensioned, started the series of events which led to the plaintiff’s, ultimately quite grievous,

disability. But, although bad medical treatment is no doubt foreseeable, in the absence of its occurrence,

in this case, what the appellants did was unlikely to have caused the plaintiff any great disability. From

that point of view it was the failure to examine the plaintiff properly which directly brought about the

disability.

It may be that the judge’s opinion was influenced by a view that, statistically, there was a

substantial chance of such a result as in fact ensued, whether or not the respondent had been guilty of

a failure of diagnosis. Some of the evidence dealing with statistics was a little confused, but in my respectful opinion the proper conclusion to draw was that it was quite unlikely that, if diagnosed when

it should have been, the hip dislocation would have led to avascular necrosis.

According to the evidence of Dr Morris, a published study showed that the blood supply to the

head of the femur reached a minimum within 24 hours of continued dislocation and he said that "Most

authors consider 12 hours to be the critical time". He referred to a study in 1990 of 60 cases in which

there was an early reduction of a simple dislocation of the hip joint, saying that all had "an excellent

prognosis with no complications". Dr Curtis said that there was a 16% risk of avascular necrosis even

if the reduction took place within 6 hours; but, on the evidence, it would have been possible to attempt

reduction, in the plaintiff’s case, well before the end of that period. Dr Curtis’ own experience was that

but seldom, in young children - the plaintiff was 11 when injured - do complications follow after early

reduction of a hip dislocation.

It does not appear to me, with respect, that the evidence that there may still have been a bad

result even with an early reduction should have any significant impact upon the apportionment; the

evidence was to the effect that such a result is quite unlikely if there is an early reduction, and very likely

if there is not. It was also pointed out by the respondents’ counsel that doctors who saw the plaintiff

on behalf of the respondent, between the initial examination and the ultimate diagnosis by Dr Warne,

also missed the dislocation. The only explanation which can be advanced for this is that, as the judge

said, this "shows that the course of treatment undertaken at the Gladstone Hospital all proceeded upon

the premise that the initial diagnosis of damage to the knee was correct".

It is my respectful opinion that, keeping in mind the heavy burden which is borne by a party

seeking to alter such an apportionment as is challenged here, the conclusion which the learned judge

reached on that subject cannot be supported. Accepting, as the parties do, the judge’s basic findings,

there must have been a number of indications of trouble with the hip as well as the X-ray I have

mentioned, and it seems plain that these should have been detected and investigated. The complete

failure to do this turned, as it seems to me, what was likely to have been a relatively minor disability into

a major one. When one adds to this the fact that the initial negligence of the appellant was not of a high

order, the conclusion I reach is that the respondent should have been made to accept at least twice the

responsibility attributed to the appellants.

I would allow the appeal with costs, set aside orders 3, 4 and 5 made by the learned primary

judge on 4 March 1997 and substitute therefor the following orders:

3.          If the plaintiff recover from the third defendant more than 70% of the sums to which the plaintiff

is entitled under Order 2, then the third defendant may enter judgment against the first and

second defendants for the amount of the excess, with costs of entering judgment.

4.          If the plaintiff recover from the first and second defendants more than 30% of the sums to which

the plaintiff is entitled under Order 2, then the first and second defendants may enter judgment

against the third defendant for the amount of the excess, with costs of entering judgment.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 2063 of 1997
Brisbane
Before	Pincus J.A. Moynihan J. Ambrose J.

[Scout Assoc. of Aust. & Anor. v. Central Regional Health Authority]

BETWEEN:

THE SCOUT ASSOCIATION OF AUSTRALIA QUEENSLAND BRANCH

(First Defendant) First Appellant

AND:

LYNDSAY RAYMOND NORRIS

(Second Defendant) Second Appellant

AND:

CENTRAL REGIONAL HEALTH AUTHORITY

(Third Defendant) First Respondent

AND:

TROY WEST ASPLET (by his next friend JOYCE KATHERINE ASPLET)

(Plaintiff) Second Respondent

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 14 October 1997

In the court below the second respondent (the plaintiff in the action) obtained judgment against

the appellants and the first respondent (they were all defendants in the action) in an amount of

$681,142.15, the appellants and the first respondent were each ordered to bear one-half of the

damages.

The appellants appealed against that part of the judgment which held that the negligence of the

first respondent did not amount to gross medical mistreatment with the consequence that the first

respondent was solely liable “for the exacerbation of the plaintiff’s medical condition resulting from its

negligence”. It was contended that the apportionment of responsibility equally between the appellants

and the first respondent could not stand. The appellants did not challenge that their negligence caused

the dislocation of the plaintiff’s hip. The notice of appeal sought that that part of the judgment in which

the respondent was ordered to pay half the damages be varied so as to provide that it pay no more than

20%.

The plaintiff took no part in the appeal and neither the appellants nor the first respondent

suggested that he ought have.

In my view the appeal calls to be disposed of on the basis of whether the trial judge’s

apportionment as between the appellants and the respondent is sustainable. The circumstances to be

considered in resolving the appeal are dealt with in the reasons for judgment of Pincus J.A. and it is

unnecessary to repeat them.

It seems that in the court below the appellants, relying on Mahony v. J. Kauschick

(Demolitions) Pty Ltd [1], submitted that the respondent’s negligence was of such a quality as to break

[1] (1985) 156 CLR 552

the chain of causation. Mahony v. Kauschick (Demolitions) Pty Ltd essentially decided that the

exacerbation of an injury by medical treatment might be regarded as a foreseeable consequence for

which an initial tortfeasor was liable. The original injury carried some risk of negligent treatment and

such treatment was not a novus actus interveniens relieving the initial tortfeasor of liability for the

subsequent condition unless medical treatment was inexcusably bad or completely outside the bounds of what any reputable medical practitioner might prescribe or so obviously unnecessary and improper

as to constitute a “gratuitous aggravation” of the injury.

As I understand it, the plaintiff’s disability, which will be appreciated from the amount of

damages awarded is considerable, was caused because the dislocation of his hip compromised the

blood circulation at the femoral head leading to avascular necrosis. There was a risk of that occurring

from the onset of the injury but the risk increased as time went by without steps being taken to restore

the blood flow or to deal with the consequences of it being compromised. The plaintiff was at the first

respondent’s hospital within half an hour of being injured. There was ample evidence founding the

conclusion that the doctor, employed by the respondent, who examined the plaintiff was negligent in

failing to detect the hip injury; indeed this finding was not challenged. Subsequent treatment at the

respondent’s hospital proceeded on the basis that the initial negligent diagnosis of knee injury was

correct. The injury was correctly diagnosed by a general practitioner on 25 March (the injury had

occurred on the 8th) and by that time the necrosis had set in. It was accepted that it had in fact set in

within 24 hours of the initial injury and for that reason the action was discontinued against a second

doctor who had examined the plaintiff.

The plaintiff attended the respondent’s hospital with an injury which, on the evidence, carried

some risk of the development of narcosis and with less risk if the injury was attended to promptly. The

failure of the first respondent’s servants to take proper steps to investigate the injury meant that what

was likely to be no more than a minor disability became major on the other hand. I agree with Pincus

J.A. that the appellant’s negligence was not of a high order. The first respondent bears a higher degree

of responsibility for the outcome than does the appellant.

The negligence for which the first respondent is liable was, in my view, within the risk which
arose from the first injury that medical treatment might be negligently given and therefore does not satisfy

the requirements identified by Kauschick as necessary to break the chain of causation.

The considerations being those I have identified, I do not think the equal apportionment of

responsibility can be sustained, rather that the first respondent should bear the greater proportion. I

agree with Pincus J.A. that 70% to the first respondent and 30% to the appellant is an appropriate

apportionment. I agree with the costs order proposed by Pincus J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2063 of 1997.

Brisbane

Before Pincus J.A.

Moynihan J. Ambrose J.

[Scout Assoc. of Aust. & Anor. v. Central Regional Health Authority]

BETWEEN:

THE SCOUT ASSOCIATION OF AUSTRALIA

QUEENSLAND BRANCH

(First Defendant) First Appellant

AND:

LYNDSAY RAYMOND NORRIS

(Second Defendant) Second Appellant

AND:

CENTRAL REGIONAL HEALTH AUTHORITY

(Third Defendant) Respondent

TROY WEST ASPLET (by his next friend

JOYCE KATHERINE ASPLET)

(Plaintiff)

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 14 October 1997

I have had the advantage of reading the reasons for judgment of Pincus J.A. and Moynihan J.

and I agree with their reasons. The orders shall be those as proposed by Pincus J.A.