Sherry v Australasian Conference Association (trading as Sydney Adventist Hospital) & 3 Ors

[2006] NSWSC 75

CITATION:	Sherry v Australasian Conference Association (trading as Sydney Adventist Hospital) & 3 Ors [2006] NSWSC 75
HEARING DATE(S):	7-9, 15-18, 21-25, 28-30 June 2004, 1-2, 6-7, 12-16, 19-23, 26-30 July 2004, 2-5, 23-26 August 2004, 6-8, 10, 13-4 September 2004, 3 December 2004
JUDGMENT DATE :	23 February 2006
JUDGMENT OF:	Simpson J
DECISION:	(i) verdict for the plaintiff against the first, second, and fourth defendants; (ii) verdict for the third defendant; (iii) matter stood over, to be re-listed for finalisation of orders.
CATCHWORDS:	plaintiff's claim for damages - Compensation to Relatives Act 1897 - death of patient following cardiac surgery - intensive care unit - cause of death - professional negligence - breach of contract - hospital - surgeon - intensive care specialist - career medical officer - adequacy of hospital staffing levels - whether surgeon under any obligation to ensure staffing levels adequate - whether intensive care specialist under any obligation to ensure staffing levels adequate - - failure of hospital staff to observe or act upon signs of blood loss - failure by career medical officer to observe or act upon signs of blood loss - failure of surgeon to observe or act upon signs of blood loss - vicarious liability of hospital - non-delegable duty of care - hospital not able to contract out of obligation to exercise due care and skill in provision of medical services to patient - hospital liable for negligent acts of career medical officer - - employment relationship between hospital and career medical officer immaterial - damages - prediction of earning capacity of deceased - likely career path - method of calculation of damages - potential earnings - services provided by deceased to family - dependency - life expectancy
LEGISLATION CITED:	Compensation to Relatives Act 1897
CASES CITED:	Allen v Tobias [1958] HCA; 98 CLR 367 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Francis & Ors v Lewis [2003] NSWCA 152, unreported, 19 June 2003. Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Nguyen v Nguyen [1990] HCA 9; CLR 245 Norris v Blake [No 2] (1997) 41 NSWLR 49 RTA v Cremona [2001] NSWCA 338, unreported, 16 November 2001 Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 Rogers v Whitaker [1992] HCA 58; 175 CLR 497 The Ophelia (1916) 2AC 206
PARTIES:	Ann Elizabeth Sherry - Plaintiff Australasian Conference Association Ltd trading as Sydney Adventist Hospital - 1st Defendant David Marshman - 2nd Defendant Ross Wilson - 3rd Defendant Shaun Walsh - 4th Defendant
FILE NUMBER(S):	SC 20437/00
COUNSEL:	BR McClintock SC with RA O'Keefe - Plaintiff PR Garling SC with JLA Lonergan - 1st Defendant PLG Brereton SC with S Nixon - 2nd, 3rd & 4th Defendants
SOLICITORS:	Gray & Perkins - Plaintiff Ebsworth & Ebsworth - 1st Defendant Blake Dawson Waldron - 2nd, 3rd & 4th Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 23 February 2006

20437/00 Ann Elizabeth Sherry v Australasian Conference Association Ltd (Trading as Sydney Adventist Hospital) & 3 Ors

JUDGMENT

1 HER HONOUR: These proceedings are brought by the plaintiff, Ms Ann Elizabeth Sherry, on her own behalf and on behalf of and for the benefit of her daughter, Leigh Anne Michelle Sherry, and her sons Ryan Timothy Sherry and Matthew Neil Sherry. Ms Sherry is the widow, and Leigh Anne, Matthew and Ryan Sherry are the children, of Mr Timothy Sherry, who died in the Sydney Adventist Hospital on 14 August 1997. It is his death that precipitated the proceedings. The plaintiff claims that his death was occasioned by the negligence and/or breach of contract by any one or more of the four named defendants. She accordingly sues under the provisions of the Compensation to Relatives Act 1897.

2 The four named defendants are:

(i) The Australasian Conference Association Ltd trading as Sydney Adventist Hospital, which conducts the hospital known as the Sydney Adventist Hospital, hereinafter referred to as “SAH”;

(ii) David Marshman, who is a medical practitioner carrying on practice as a specialist cardio-thoracic surgeon at (at the relevant time), inter alia, SAH;

(iii) Ross Wilson, also a medical practitioner, who carried on practice as an intensive care specialist at (at the relevant time), inter alia, SAH;

(iv) Shaun Walsh, a medical practitioner, who at the relevant time, was engaged by SAH as a “Career Medical Officer”.

I will at times refer to the second to fourth defendants collectively as “the doctor defendants”. Otherwise, when referring to them individually it will be convenient to use their names rather than their litigation designations.

3 Some facts are uncontroversial and, by way of introduction, may here be shortly stated. On 12 August 1997 Mr Sherry was admitted to SAH. It was intended that he would undergo heart surgery, to be performed by Dr Marshman. The surgery proposed (and performed) was of a kind known as “minimally invasive direct coronary arterial bypass” (“MIDCAB”). This is a procedure in which heart surgery is performed through a small surgical incision in the chest wall (thoracotomy). In 1997 MIDCAB was a relatively new mode of performing heart surgery. It would, it was hoped, lessen the post operative pain of the patient, and promote more rapid recovery. Experience, however, proved otherwise, and the technique has fallen out of favour. As at August 1997, and prior to operating on Mr Sherry, Dr Marshman had performed two MIDCAB procedures.

4 The surgery was performed the following day, 13 August, and was successfully completed. No issue arises in the present proceedings concerning the performance of the surgery.

5 On its completion Mr Sherry was taken to SAH’s Intensive Care Unit (“ICU”). There he came under the care of Dr Wilson (an intensive care specialist, also known as an intensivist) and Dr Walsh as career medical officer (“CMO”), the title given to a relatively senior medical practitioner, with specialist training in areas relevant to intensive care, focussed upon critically ill patients (t 2504).

6 Extensive and detailed monitoring of Mr Sherry’s condition, medication, and physical signs ensued. This was routine in the ICU. A chart, known as the ICU Chart, was in evidence as Exhibit C1. It features prominently in the issues in the proceedings. It is not entirely uncontroversial as an accurate record, there being a number of entries to which reference will have to be made. There are, admittedly, some clear errors on the ICU Chart. Some questions of interpretation of individual entries arise.

7 Rightly or wrongly, no real concern as to Mr Sherry’s condition arose until about 10.10 pm on 14 August. What happened during the intervening period is, however, the subject of a great deal of the evidence and will be examined in detail at a later point in this judgment. At 10.10 pm Mr Sherry experienced an increase in chest pain. Dr Walsh, who was the CMO on duty in SAH, was called by a nurse. After an examination Dr Walsh made a provisional diagnosis of pneumothorax (a collection of air or gas in the pleural cavity). This, it was later recognised, was incorrect. Mr Sherry was suffering from a haemothorax, a collection of blood in the pleural cavity. Dr Walsh gave Mr Sherry some treatment, ordered an immediate x-ray, and resumed his duties elsewhere in SAH. At about 10.40 pm he was paged by an ICU nurse, informed that the x-ray results had arrived, and returned to the ICU.

8 The examination of the x-ray showed a large pleural effusion which Dr Walsh then thought was probably a haemothorax. He telephoned Dr Wilson, who was at home but on call.

9 Having heard a description of Dr Walsh’s observations, Dr Wilson asked Dr Walsh to insert a chest drain and immediately travelled from his home, not far distant, to SAH. Before he arrived at the hospital, and while preparations were under way for the insertion of the chest drains, Mr Sherry went into cardiac arrest. Dr Wilson arrived at the hospital at about 11.00 pm and assumed control of the administration of treatment. At about 11.00 pm Dr Marshman was called. He arrived at SAH about 15 minutes later. He took control. Dr Walsh, assisted by nursing staff, administered cardio-pulmonary resuscitation (“CPR”). All efforts were unsuccessful and Mr Sherry died, probably about 15 minutes after midnight. The direct cause of death was later established by a pathologist’s report for the Coroner as “massive intrathoracic haemorrhage”.

10 The plaintiff claims that SAH, and each of the three medical practitioners, was negligent in its or his treatment of Mr Sherry in a variety of ways. She alleges that each of the defendants was in a contractual relationship with Mr Sherry, and that each failed to honour its or his obligation under the relevant contract, and that she is, therefore, entitled to damages under the Compensation to Relatives Act.

11 The plaintiff has particularised her case in negligence against each defendant. She relies upon the same particulars to establish the contractual breaches she alleges. I do not propose to repeat the lengthy particulars, many of which are in general terms subsumed in the more detailed allegations, contained in the statement of claim, but rather will attempt, by reference to the pleadings, to encapsulate the case she has sought to make against each defendant. I will make later reference to the case as it was finally put against each defendant.

12 The outline of the negligence alleged which follows is a paraphrase, in my words, of the particularisation contained in the operative statement of claim (the Second Further Amended Statement of Claim). The substance of what the plaintiff there alleges as against each defendant is as follows:

SAH:

- failed to engage adequate numbers of medical staff in the ICU;

- failed adequately to monitor Mr Sherry’s condition both pre- and post-operatively;

- failed (through its nursing and other staff) to provide Mr Sherry, Dr Wilson and Dr Walsh with an accurate assessment of Mr Sherry’s state of health and wellbeing or to advise Drs Wilson and Walsh of any changes in his state of health or, when circumstances warranted, to refer Mr Sherry for appropriate tests and monitoring and management;

- failed to maintain adequate records;

- failed to give appropriate treatment (especially administration of blood or fluid, and, later, insert a chest drain) when circumstances required.

Dr Marshman:

- failed to ensure that Mr Sherry’s condition was appropriately monitored and managed; failed to ensure that he himself would be notified and available to treat any deterioration in Mr Sherry’s condition; failed adequately to consult post-operatively and to observe Mr Sherry’s condition;

- failed adequately to record observations;

- failed to give appropriate treatment at 9.30 pm on 14 August;

- failed to ensure SAH was providing adequate care to Mr Sherry so as to enable himself to be fully informed and ensure adequate treatment was given;

- failed to diagnose post-operative bleeding;

- failed to provide appropriate treatment at about 11.30 pm on 14 August;

- failed to diagnose haemothorax and/or blood loss;

- failed to observe or appreciate the significance of certain clinical signs.

Dr Wilson:

- failed to ensure appropriate monitoring of Mr Sherry’s medical condition and make appropriate personal observations;

- failed to maintain appropriate records;

- failed to ensure SAH provided adequate care so as to enable himself to be fully informed and ensure adequate treatment was given;

- failed to diagnose post-operative bleeding or to carry out appropriate investigations or to provide appropriate treatment;

- failed to diagnose haemothorax;

- failed to observe or appreciate significant clinical signs;

- failed to direct Dr Walsh to give appropriate treatment at about 10.40 pm on 14 August;

- failed to give appropriate treatment on arrival at SAH at about 11.00 pm on 14 August;

- failed to take appropriate measures to assess Mr Sherry’s fluid status.

Dr Walsh:

- failed adequately to monitor or examine Mr Sherry’s condition or to attend with sufficient frequency or regularity or to be present continuously in the ICU;

- failed to diagnose post-operative bleeding;

- failed provisionally to diagnose haemothorax;

- incorrectly diagnosed pneumothorax;

- failed with sufficient promptness to contact Dr Marshman and/or Dr Wilson upon examination of Mr Sherry;

- failed to provide appropriate treatment during the afternoon and evening of 14 August;

- failed to remain with Mr Sherry from 10.15 pm on 14 August or to administer appropriate treatment from that time;

- failed to diagnose haemothorax;

- failed to observe or appreciate the significance of certain clinical signs;

- failed to administer fluid at about 10.10 pm on 14 August.

13 In written submissions provided on behalf of the doctor defendants reference was made to what was said by senior counsel for the plaintiff when he orally opened the case on 7 June 2004. This was an attempt to restrict the particulars of negligence available for determination to those specifically mentioned in the opening. I should make it clear that I see no reason why, and do not propose to proceed on the basis that, counsel’s opening should be taken as some kind of substitution for a statement of claim. The opening is intended to outline, for the benefit of the court, the case which a plaintiff proposes to make and to facilitate the production of the evidence to be adduced. It is not intended to usurp the role of formal pleadings. If any doubt had existed as to the intention of the plaintiff’s legal representatives to continue to rely upon any of the particulars pleaded, it was always open to defence counsel to seek clarification of, for example, any particulars that had been, or were, to be abandoned. I proceed on the basis that it is the particulars pleaded, and any that are supported by the evidence, not limited to those to which specific reference was made in the opening, that form the basis of the plaintiff’s claim. It remains to be seen whether the evidence establishes that any negligence or contractual breach as particularised has been established.

14 All defendants deny the allegations of negligence and of breach of contract.

15 In addition to alleging that SAH was itself (through its nursing and other non-medical staff) in breach of its duty to Mr Sherry, the plaintiff also pleads that:

(i) Dr Wilson was an agent of SAH;
(ii) Dr Walsh was an employee or agent of SAH;
(iii) SAH owed Mr Sherry a non-delegable duty in respect of treatment provided by nursing and physiotherapy staff, and by Drs Wilson and Walsh, and, alternatively, is vicariously liable for the acts and omissions of nursing and physiotherapy staff and of Drs Wilson and Walsh;
(iv) (perhaps repetitiously) SAH is vicariously liable for any negligent acts proven against either Dr Wilson or Dr Walsh.

16 The first, second and fourth of these are denied by SAH. In respect of the third, SAH admits that it owed a duty of care to Mr Sherry in respect of treatment provided by nursing and physiotherapy staff and admits that it is vicariously liable for any negligent acts and any negligent omissions of any such individuals, but otherwise denies the allegation: that is, it appears to deny that it owed a non-delegable duty to Mr Sherry in respect of treatment administered by Drs Wilson and Walsh, or to be vicariously liable for any negligent acts or omissions of theirs.

17 All three doctor defendants were represented by the same legal practitioners. SAH was separately represented. There was, however, no area of dispute between SAH and the doctor defendants: they adopted a common and united position throughout the proceedings.

18 Evidence was given by each of the doctor defendants. No evidence as to factual matters was called on behalf of SAH. The liability issues were the subject of extensive expert evidence. The plaintiff called two experts, Mr Brian Glenville, and Dr Peter Stow. SAH called Professor Kenneth Hillman and Professor James Tatoulis. The doctor defendants, besides giving evidence themselves, called Professor George Skowronski, and Dr Roger Harris.

facts and circumstances

19 I now turn to a more comprehensive account of the relevant facts and circumstances. Mr Sherry was born in Salisbury (as it was then known) in Rhodesia (as it was then known) on 21 March 1961. With his family (mentioned in [1] above) he migrated to Australia in August 1983. He became involved in property management and had various forms of employment in this area. He was a fit and healthy man, although he had, in the past, been a smoker. He gave up smoking on the family’s arrival in Australia in 1983, and smoked only occasionally, during the early 1990s, thereafter. He engaged in a rigorous exercise programme. He suffered from asthma, for which he used a Ventolin puffer. From 15 September 1996 he experienced repeated incidents of coronary discomfort for which he was treated on a number of occasions at SAH, at Manly Hospital, and by doctors it is not here necessary to mention. He was diagnosed in September 1996 as suffering from coronary artery disease. The plaintiff took medical advice and made some adjustments to the family’s already healthy diet. At the time of his admission to SAH Mr Sherry had a prescription for a drug called Losec, which is used, inter alia, in the treatment of stomach ulcers.

20 He came under the care of Dr Thomas Gavaghan, a cardiologist, who eventually referred him to Dr Marshman for surgery. Dr Marshman was provided with at least some of Mr Sherry’s medical records, and received information from Dr Gavaghan. The two specialists agreed that the MIDCAB surgery was appropriate for Mr Sherry’s needs. Dr Marshman then telephoned Mr Sherry and explained the nature of the procedure. Mr Sherry told Dr Marshman that he had had some discussions with Dr Gavaghan and that his symptoms, and their recurrence, were such that he wished to take further measures to resolve his problems. Accordingly, Dr Marshman made arrangements for his admission to SAH. This occurred on 12 August 1997. Up to this point, Dr Marshman had never met Mr Sherry face to face. He did, however, see him that evening in the ward in SAH. They discussed again the nature of the operation and its risks and Mr Sherry confirmed that he wished to proceed.

21 The surgery commenced the following morning shortly after 11.00 am and was completed between two and two and a half hours later. It went without incident. There was significant, but not alarming, post-operative bleeding. Intercostal drains were inserted, one in the left pleural space, and a second in the pericardial space. The placement of the drains is of some significance. They were brought out of Mr Sherry’s body through separate stab incisions. The chest wound through which the surgery had been performed was closed.

22 He was taken to the ICU at about 2.30 pm. Dr Marshman probably accompanied Mr Sherry to the ICU to ensure that everything was in order. Dr Wilson was the intensivist on duty. A “handover” took place, the anaesthetist giving Dr Wilson relevant information. Dr Wilson assessed Mr Sherry. He reviewed his past records, and examined him. Dr Wilson was aware that there was then significant post-operative bleeding. The anaesthetist thought that Mr Sherry was, at that time, “stable”. At some stage in the early evening, it may be assumed in accordance with usual practice, there was a “handover” from Dr Wilson to the CMO on duty that day. This was not Dr Walsh. The CMO was aware of some issues with pain control, but otherwise Mr Sherry’s condition was regarded as satisfactory. His pulse rate was initially low, but climbed rapidly.

23 An x-ray was taken at about 2.50 pm. It showed some collapse (“atelectasis”) in the left lung, but that the right lung “appeared clear”. As later evidence showed, there was nothing surprising in the finding of modest left lung collapse in a patient following left thoracotomy surgery.

24 Dr Marshman returned to the operating theatre to perform further surgery on other patients. After that surgery was completed, at about 6.00 pm, he attended Mr Sherry in the ICU and satisfied himself that all was in order. He reached this view notwithstanding that Mr Sherry had experienced some significant post-operative bleeding, but took the view that this was under control, and that the cause had been corrected. Dr Marshman returned again to the operating theatre and performed a third operation on another patient. That concluded at about 8.30 pm and he again returned to the ICU and checked on all his patients in that facility, including Mr Sherry. At that time he observed that Mr Sherry was stable and well, had no significant bleeding and displayed no other problems. At some time during the evening of 13 August Dr Marshman examined the post-operative x-ray. He observed nothing untoward. (When he again examined that x-ray in the course of giving evidence, he identified “a hint of some collapse or increased masking in the lung behind the left chest” but a “quite clear” right lung. This x-ray gave him no cause for alarm.)

25 The following morning, 14 August, Dr Marshman telephoned the ICU to enquire about all of his patients in that facility at that time. His usual practice (and there is no reason to believe it was not followed here) was to speak either to the individual nurses caring for each patient, or to the nurse in charge of the ICU. He was informed that Mr Sherry had been relatively stable during the night with no major problems, that his bleeding had remained at a low rate, that he had been extubated and, that apart from some pain, all was well.

26 Dr Walsh came on duty at 8.00 am on 14 August. He was to remain on duty until 8.00 am the following day. He had no specific recollection of a handover round on that morning, but it is safe to assume that, in accordance with usual practice, either the CMO going off duty or Dr Wilson briefed him on the circumstances of the various patients in the ICU, including Mr Sherry. Dr Walsh had a recollection, not very clear, of an evening handover in which no specific problem was drawn to his attention. Dr Walsh then went about his duties in SAH, which included duties in other wards besides the ICU.

27 Within the ICU a document entitled “Clinical Path” was prepared. This was in the form of a chart, or series of charts, indicating what was anticipated in terms of assessment and monitoring, testing, treatment and observations of the patient. Each chart contained provision for the insertion of information as to the actual, as distinct from intended or anticipated, course of events. This was designed to operate as a checklist. For example, there was provision for the insertion of medications prescribed, and there were spaces for the insertion of a record of medication administered. The first chart was concerned with pre-operation matters, another one with the day of surgery, another with the four hours immediately post-surgery, the next with the remaining day of surgery, and the remainder for successive days post-surgery. Relevantly, the Clinical Path for 14 August shows that it was anticipated that, at some time on that day (the time is not specified) Mr Sherry would be able to walk to a chair with the assistance of two others. It is unnecessary at this stage to say more about these documents, except to note that they featured in the evidence and it will be necessary to make more detailed reference to some of them in due course.

28 Also maintained were handwritten records entitled “Integrated Progress Notes” into which information was inserted by various health professionals, such as nurses, physiotherapists, and doctors. These contain a number of entries significant for present purposes. Again, it is more convenient to return to the detail when considering the individual issues to be determined. I will refer to these as “the Progress Notes”.

29 The next document of significance, also recording information inserted by various health professionals, is the document known as the “ICU Chart”. This is a document partly in the form of a graph and partly in the form of numerical boxes for the insertion of information. The chart contains provision for the insertion of information of kinds too numerous here to detail, but including records of blood pressure (systolic, diastolic and mean), central venous pressure (“CVP”), blood balance, pulse and respiration rates, and the administration and excretion of fluids. There is also provision for the recording of drugs administered. The graphs are in a form which permits recording of the information on a quarter-hourly basis. It is also in a form which enables the initiated quickly to derive information about not only the current condition of the patient, but also changes or trends in the various parameters that are recorded. It became plain, through a number of medical witnesses, that changes in observations, or trends in, for example, blood pressure readings, are of considerable value in the assessment of a patient’s condition, trends or changes often being of more significance that the raw, hour by hour, data. The overall purpose of the ICU Chart is, as described by the first medical witness:

“... to document a wide variety of different parameters of the patient and interventions that different members of staff are giving to that patient.” (t 876)

30 In respect of certain of the items recorded, such as drug administration, urine output (as to which, see below) the ICU Chart provides for cumulative totals.

31 The ICU Chart recording Mr Sherry’s information commences on 13 August, the day of the operation, and shows his temperature, immediately post-surgery each fifteen minutes and thereafter, on an hourly and subsequently two-hourly basis. The same applies to the insertions on the graph recording his pulse rate, respiratory rate and urine output. In respect of some readings, it contains provision both for regular (hourly) readings, plus progressive totals. The ICU Chart contains an enormous amount of information. It featured prominently in the proceedings. It was conceded that it contains some errors although the extent and significance of those errors was a matter of considerable debate. Also debated was the interpretation that should be placed upon some of the entries, on the assumption that they were accurately recorded.

32 The Progress Notes also record a large amount of detail from the time of Mr Sherry’s admission inserted by nurses, physiotherapists, and doctors.

33 What follows is a chronology drawn from the entries made in the Progress Notes, the ICU Chart, together with the evidence in the proceedings, other SAH records and some evidence derived from pre-trial procedures such as answers to interrogatories. It is of some note that no nurse was called by SAH (or any other party) to give evidence. What follows is not intended to represent findings of fact as to the accuracy of the information contained in the notes or the ICU Chart (although, with some notable exceptions, that is largely uncontroversial). The extracts from the Progress Notes below represent the entries after translation of the medical shorthand and symbols.

post operative history

34 On 13 August Dr Wilson recorded the operation in the Progress Notes. He outlined a plan for future care which he noted as “routine”. His notes included medication to be administered.

35 The plaintiff visited her husband in the ICU at about 2.30 in the afternoon of 13 August, immediately following the surgery. He was not then conscious and she did not remain very long. She returned at about 6.00 pm, with the children, although they were permitted to visit only one at a time. Mr Sherry still was not conscious.

36 At 8.30 pm a nurse recorded a “satisfactory post-op evening” and noted that Mr Sherry was then “haemodynamically stable”, that the chest drains were drained, yielding large amounts of haemoserous fluid and that Drs Wilson and Marshman were aware of this. (The term “haemodynamically stable” appears repeatedly in the Progress Notes, and in the evidence. As defined by Dr Wilson in his evidence, it is a term used to denote that blood pressure, heart, and cardiac output are normal and that the rhythm is stable.)

37 At 2.00 am on 14 August Mr Sherry was given Ventolin. This was repeated from time to time during the day. At 5.00 am on that day in a “night report, day 1 post-op” a nurse recorded again that Mr Sherry was “haemodynamically stable with the help of some GTN” (a drug also known as Tridil, used to lower blood pressure, which, the ICU Chart shows, was administered between 4.00 am and 5.00 am). At 8.30 am a physiotherapist described Mr Sherry as “alert” but suffering pain on inspiration. His parameters were stable and his cough was weak. He was given COACH treatment. A “COACH” device is a physiotherapy apparatus designed to encourage deep breathing. It allows readings of inspiration.

38 At 7.47 am a chest x-ray was taken. This, like the x-ray of the previous day, showed some degree of left lung collapse but not to such a degree as to cause concern. At 8.30 am a physiotherapist recorded a clinical observation (as distinct from radiological evidence) of decreased air entry on the right base of the lung due to Mr Sherry’s shallow breathing. It is of some significance that she made no similar record of clinical observation of decreased air entry to the left lung.

39 In an un-timed note of 14 August (but which, it may be inferred from its position in the Progress Notes, was between 8.00 am and 2.30 pm), Dr Wilson recorded that Mr Sherry was haemodynamically stable, that there were difficulties with pain relief, that chest drainage had decreased, and that an electro-cardiogram (“ECG”) showed non-specific changes consistent with pericarditis (inflammation of the membrane enclosing the heart). He again recorded a plan, consisting of increased morphine dosage, the removal of drains and repeat ECG, enzymes and chest x-rays.

40 The plaintiff returned alone at about 11.00 am the following morning, 14 August. Mr Sherry was conscious. The plaintiff observed that the chest drains were still in place at that time. She discussed Mr Sherry’s progress with the nurse, who was very positive and who said that she anticipated removing the chest drains at about lunchtime that day. The plaintiff observed that her husband was recovering his colour and did not appear to be in pain. She left at about 12.30. The drains were removed at about 1.30 pm.

41 At 2.00 pm more Ventolin was administered. At 2.30 pm the physiotherapist recorded increased pain from the surgery incision, that COACH treatment was given and pain inhibited.

42 At 3.00 pm a nurse, D Phibbs, recorded that Mr Sherry was alert and orientated, that pain control was the main issue, that morphine infusion was continuing at the prescribed rate, with some “boluses” (supplements), and that Panadeine was administered. Nurse Phibbs described Mr Sherry as “febrile”, “centrally and peripherally warm and well perfused”, but hypertensive (i.e. that his blood pressure was higher than optimum). Of some significance, Nurse Phibbs recorded that air entry was equal but decreased at the right base. (The apparent internal inconsistency in this note was never explained and was a mystery to, at least, Dr Wilson, as it is to me.) Nurse Phibbs confirmed the presence of the rash observed by Ms Sherry.

43 The plaintiff returned with all three children after 5.00 pm. The chest drains had been removed. On this occasion the plaintiff thought her husband looked “very fatigued” and she was concerned about his colour which she described as:

“... ashen to almost a yellowy sort of colour”.

When she kissed him she noticed his mouth was cold. She touched his arm and hand and found that these also were cold. He had a fine red rash on his chest and arms. His left breast was swollen. Mr Sherry told her that the removal of the chest drains had been very painful. Leigh-Anne observed the heart rate monitor and commented that Mr Sherry’s heart rate was “very, very high”. (Leigh-Anne Sherry and her father had been in the habit of running together, and recording their heart rates in a kind of competition. She was familiar with the practice of reading heart rates, and with her father’s physiological characteristics, including his pre-operative resting heart rate.) She and her mother observed on the monitor that Mr Sherry’s heart rate was about 109 beats per minute. This was significantly higher than his normal resting heart rate. Mr Sherry blew into the COACH device, and his heart rate rose.

44 Mr Sherry dissuaded the plaintiff from taking up the issue with the nursing staff. He said that he was very thirsty. Matthew spoke to the nurse who gave him an iceblock. As Mr Sherry ate the iceblock the plaintiff saw that he was trembling.

45 The plaintiff thought that he was not looking as well as he had earlier in the day. She conveyed this to a nurse, making specific reference to his colour. Leigh-Anne Sherry commented to the nurse on the “very, very high” heart rate, saying that it was more than double his normal resting heart rate. The nurse replied that this was a normal post-operative response and that Mr Sherry’s progress was being monitored. Miss Sherry also commented that her father’s blood pressure appeared to be a bit low and was again told that it was being monitored and was a normal post-operative response. The nurse also told the plaintiff that her husband’s colour was normal “considering what he’s been through”. This conversation terminated because Mr Sherry showed signs of anxiety about its being pursued. The family left about five minutes later.

46 Between 6.00 pm and 7.00 pm a “handover round” was conducted. There was little evidence about this. It was not recorded in the Progress Notes, and neither Dr Wilson nor Dr Walsh had any real recollection of it.

47 At 7.00 pm the physiotherapist recorded the administration of a bolus of morphine (for pain control), and decreased air entry, greater on the left than on the right. This entry became something of a focal point in the proceedings. This was because it was the first time that there was recorded a clinical (as distinct from radiological) observation of signs of left lung collapse. The record shows that Mr Sherry was given treatment and encouraged to use the COACH apparatus during the evening.

48 Dr Marshman visited and examined Mr Sherry at about 9.30 pm. He made no written note of his visit or of his examination. His claim that he had done so was subjected to severe scrutiny. I accept that he did so.

49 Dr Marshman shook Mr Sherry’s hand and had a conversation with him. He examined Mr Sherry by feeling his hand and observing the colour of his hands. He felt his pulse and examined his chest. Dr Marshman was satisfied with his observations. He found Mr Sherry to be warm and well perfused peripherally, his tongue moist (a good indication), and his chest expansion satisfactory. Dr Marshman inspected the ICU Chart and found nothing to cause concern, other than an unanticipated level of pain. He reviewed the 7.47 am x-ray. He recognised that the x-ray showed that some minor collapse on the left lung was then present, but contained no surprises. He discussed Mr Sherry’s condition with the nurse, who told him that there were no “issues”, that everything was fine. He found Mr Sherry to be mentally normal. He saw no signs of internal bleeding.

50 At 10.10 pm Nurse Morrice recorded that Mr Sherry was haemodynamically stable, that he was monitoring in sinus rhythm (meaning that cardiac output was normal), that he was still complaining of pain and was given a morphine bolus with increased infusion. She noted that he appeared more settled and that his family had visited.

51 At a time which must have been very shortly after this note, Nurse Morrice called Dr Walsh, who was in another part of SAH. She told him that Mr Sherry had experienced a strong increase in pain. In response to a question by Dr Walsh, the nurse told him that Mr Sherry was haemodynamically stable. Dr Walsh attended immediately, arriving in the ICU at about 10.15 pm. He noted that Mr Sherry appeared to be very distressed by pain, and that he looked pale and sweaty. Dr Walsh checked the monitors. His observations were of a stable pulse rate of about 100, and that other readings were stable, with little change since his earlier examination; he noted that Mr Sherry had decreased air entry on the left. Because of pain he had difficulty breathing in. Dr Walsh spoke to Mr Sherry, who described the pain as a “very sharp” stabbing pain. Dr Walsh used a stethoscope to listen to Mr Sherry’s chest. He felt Mr Sherry’s extremities, which appeared normal.

52 He checked the ICU Chart and the Progress Notes, reviewing the trends. He satisfied himself that Mr Sherry’s haemodynamic status was much as it had been over many hours. He made a provisional diagnosis of pneumothorax. He ordered a chest x-ray and prescribed some medication (Ketorolac, also known as Toradol) for pain relief. This was administered intra-muscularly by the nurse at 10.30 pm. He ensured that Mr Sherry was still stable, by observing the monitors, and returned to other duties in SAH, pending completion of the x-ray.

53 At 10.30 pm Dr Walsh recorded in the Progress Notes that Mr Sherry had suffered a sudden increase of left pleuritic chest pain, with decreased air entry to the left chest. The x-ray ordered by Dr Walsh was taken at 10.31 pm. He was notified when the x-ray had been processed and returned to the ICU to examine it. He again checked the readings on the monitors, finding little change. With some reservations, he diagnosed a haemothorax. He made clinical observations of Mr Sherry, who, he thought, was looking a lot more comfortable, and less pale and sweaty than previously. Mr Sherry himself said that he was feeling more comfortable, and the nurse confirmed that since the drug Ketorolac had been administered, he appeared more comfortable. The monitors showed that blood pressure, CVP, heart rate and oxygen saturations remained stable. All of this occupied only a few seconds. Dr Walsh recognised at this stage that it would be necessary to insert a chest drain, but did not initially instruct the nurse to make the necessary preparations. He explained this by saying that he wished to speak to Dr Wilson before taking any other action. Mr Sherry’s apparent stability operated strongly on Dr Walsh’s mind in his decision-making process.

54 It was at this point that Dr Walsh telephoned Dr Wilson. He described Mr Sherry’s condition and what he had observed on the x-ray. Dr Wilson asked Dr Walsh to insert a chest drain. Dr Walsh asked the nursing staff to make the necessary preparations. At some point Mr Sherry complained of nausea. Dr Walsh prescribed a drug, Maxalon, which was administered by a nurse at 10.50 pm. A nurse recorded in the Progress Notes that, at 11.00 pm, Mr Sherry complained of feeling light-headed and dizzy and was observed to be pale and clammy and to have fitted. He was hypotensive – i.e. his blood pressure was below normal limits.

55 Within 10 minutes of Dr Walsh’s telephone call to Dr Wilson, and before the chest drains could be inserted, Mr Sherry suffered a cardiac arrest. The precise time that that occurred has not been ascertained. He lost consciousness. Dr Walsh began cardio-pulmonary resuscitation (“CPR”), and directed that Dr Wilson be telephoned again. Dr Wilson was at that stage en route to SAH.

56 Dr Wilson arrived at about 11.00 pm and took control. He inserted two cannulae for the administration of fluid, intubated Mr Sherry, and opened the chest wound through which the surgery had been performed. A good deal of blood was released, confirming the diagnosis of haemothorax.

57 Dr Wilson later noted that, at 11.00 pm, Mr Sherry had suddenly lost consciousness. He considered this to be attributable to cardiac arrest. He diagnosed a left haemothorax. He administered treatment and directed that Dr Marshman be paged.

58 The Progress Notes record Dr Marshman’s arrival at 11.25 pm, when he observed Mr Sherry to have been “asystolic” (meaning that he was suffering from faulty contraction of the ventricles of the heart: “fibrillating”). He recorded that the left chest wound had been opened and revealed blood loss. There remained blood and blood clots, which he evacuated, while continuing internal cardiac massage. Mr Sherry did not respond to treatment and resuscitation efforts ceased at 12.15 am on 15 August.

59 In a report to the Coroner dated 15 August, Dr Marshman estimated that there were 2000 millilitres (that is, about two litres) of blood in the chest. Later pathological examination for coronial purposes revealed a further 625 ml in the left pleural cavity and 100 ml in the right. The final record in the Progress Notes appears under the heading “Nursing Report” over the signature of Nurse S Ford and is plainly a retrospective, posthumously written, note. Nurse Ford noted the chest x-ray at 10.30 pm, the administration of drug therapy at 10.32 pm, review of the chest x-ray at 10.40 pm by Dr Walsh; that, at 10.45 pm Mr Sherry settled with a face-head wash, that at 10.50 pm he complained of nausea and was given treatment prescribed by Dr Walsh; that at 11.00 pm Mr Sherry complained of feeling light-headed and dizzy, and that his feet were elevated and his bed-head lowered. She observed Mr Sherry to have been “pale and clammy”, and to have fitted. The precise time of the convulsion is not recorded. Nurse Ford recorded hypotension and profound bradycardia (reduced heart rate). Nurse Ford noted that the arrest alert was activated, that CPR was commenced, and that Dr Walsh was present and Drs Wilson and Marshman contacted.

* * *

60 On the week of 13 and 14 August 1997 Dr Wilson was rostered on duty in the ICU, on a shift that commenced each morning at 8.00 am. He was in the habit of performing several rounds of the patients in the ICU. From about 5.00 pm onwards the “round” would be constituted by the nursing team leader, himself and the CMO on duty. This was known as a “handover round”. It was conducted as he left SAH, although he remained on call. Although Dr Wilson had no specific recollection of the evening handover round of 13 August, the Progress Notes make it clear that this occurred in accordance with his usual practice, as described by him in his evidence. He again saw Mr Sherry during the course of the following morning, 14 August, when he reviewed the records and the ICU Chart and physically examined Mr Sherry. In conjunction with the CMO and the nursing staff he formulated a “Plan” which was recorded in the Progress Notes. He conducted a further round during the early evening, between 6.00 pm and 7.00 pm, on 14 August, but again has no specific recollection of that. Having completed his rounds, Dr Wilson left the hospital and returned home. Some time (probably shortly) after 10.30 pm he received the telephone call from Dr Walsh advising that Mr Sherry had had a sudden onset of worsening left-sided chest pain that was quite different from the pain that he had experienced earlier in the day. Dr Walsh told him that Mr Sherry had had a chest x-ray which showed either a left pleural collection or a left haemothorax (Dr Wilson could not remember which expression was used by Dr Walsh). In answer to a direct question from Dr Wilson, Dr Walsh told him that Mr Sherry was stable (meaning “haemodynamically stable”). Dr Wilson told Dr Walsh to insert a chest drain and said that he would come to the hospital. He left home immediately. En route he received the second telephone call advising of Mr Sherry’s cardiac arrest. On arrival at SAH, he went straight to Mr Sherry’s room, where he saw that resuscitation was under way. He reviewed the x-ray. This, he described as “a very abnormal chest x-ray”, and very different from the x-ray taken that morning. Dr Wilson recognised that the x-ray disclosed a significant amount of blood in Mr Sherry’s chest area. (I phrase this neutrally and non-specifically because precisely what should be made of the x-ray was a matter of considerable debate, and a matter to which I will have to return.)

61 Dr Wilson satisfied himself that appropriate measures had to that point been taken. He then inserted catheters. He had observed that a solution known as “Hartmans solution” was being administered and ensured that blood was also given to Mr Sherry. He then reopened the surgical wound and drained blood from the chest cavity and commenced internal cardiac massage. He found blood in the left thoracic cavity. (Much of the blood escaped, either into Mr Sherry’s bed or onto the floor. The precise quantity of blood is therefore unknown.) It was at about this time that Dr Marshman arrived.

* * *

62 There is now no doubt that at some time during the course of 14 August, Mr Sherry lost a large amount of blood. Exactly how that came about is one, but not the, principal issue for determination. The plaintiff’s case as it proceeded may, I hope without unfairness to the complexities of the evidence and arguments, be reduced to this.

63 Mr Sherry died as a result of a massive interthoracic haemorrhage, which commenced at about 1.30 pm on 14 August. What precipitated the bleeding was the removal of the chest drains at about 1.30 pm. He bled, at a consistent rate of about 250 – 300 ml per hour, into the subpleural cavity until his heart ceased output at what must have been 11.00 pm or thereabouts. There were, at no later than 6.00 pm, sufficient signs of the haemorrhage to alert SAH nurses, and/or any and each of the doctor defendants, to the blood loss, had they exercised the appropriate level of care and skill. Those signs are recorded in the ICU Chart and the Progress Notes. In addition, what was physically observed by members of Mr Sherry’s family ought also to have been observed by nursing staff and the doctor defendants, and ought to have alerted them to what was, in fact, Mr Sherry’s progressively deteriorating condition. They failed to make the appropriate observations or correctly to interpret the data, and in so doing failed to discharge the duty of care they owed to Mr Sherry (or, alternatively, failed to honour their obligations under contract).

64 The response made by all defendants is, in effect, that although in retrospect there can be seen some signs consistent with haemorrhage, other recordings were of signs that were inconsistent with blood loss and not such as to signify to a reasonably careful and skilful practitioner (either nurse or doctor) that Mr Sherry was bleeding internally. There was, accordingly, no breach of duty, or of contract.

65 I propose now to make some reference to those of the readings recorded in the ICU Chart to which particular attention was paid, and which consequently featured prominently in the areas of dispute. These are:

- blood pressure

- temperature

- pulse rate

- respiration rate

- urine output

66 In general terms, each of these has some significance as an indicator of circulating blood volume (although none is exclusively used for that purpose). Each can, therefore, indicate blood loss.

67 Reduced fluid volume in the human body is known as “hypovolaemia”. Whilst hypovolaemia may be attributable to loss of fluids other than blood, for present purposes the term is here used to refer to reduced blood volume in the circulatory system. A major question in the present proceedings is whether the signs were such as to alert a competent nurse or medical practitioner, exercising ordinary skill and care, to blood loss in Mr Sherry, and, if those signs did exist at any time prior to 11.00 pm, when they did.

68 CVP is measured in centimetres of water or millimetres of mercury. Although the evidence on this was far from consistent, a fair consensus is that a CVP reading in fit, healthy people without disease could be expected to be measured in the range of 3 – 12. However, what is to be considered normal or appropriate for any particular patient depends upon factors peculiar to that patient. Low CVP may be an indicator of hypovolaemia, but is not necessarily so.

69 Blood pressure is measured upon two graphs, systolic and diastolic. A typical healthy diastolic blood pressure is in the range of 70 – 80, and a typical healthy systolic blood pressure is around 120.

70 Normal human temperature is 37 degrees Celsius. Anything in excess of that is called “pyrexia”.

71 The range of normal pulse (heart) rates is between 60 and 75/80 beats per minute (“bpm”). When a heart rate exceeds 100 bpm, the condition of “tachycardia” is diagnosed. Tachycardia is another sign that, inter alia, may indicate hypovolaemia.

72 The evidence concerning the significance of the respiratory rate was not very specific. It appears indicatory of some dysfunction signifying, at least, a need for alertness or further investigation.

73 Urine output is regarded as an important sign and was recorded on an hourly basis. An indwelling catheter drains into a container and the urine produced is measured. “Acceptable” urine output is measured by reference to body weight. In a man of Mr Sherry’s body weight, “acceptable” urine output is about 30 ml per hour. Urine output below “acceptable” levels is known as “oliguria”. Oliguria is another sign that can indicate, inter alia, hypovolaemia.

74 The information conveyed by Mr Sherry’s ICU Chart for 13 August is, for the most part, unremarkable. It shows that, on his transfer to the ICU from surgery, he bled moderately heavily. The blood was drained through the chest drains which had been inserted, and was measured. This was, properly, regarded as a matter requiring observation, but not serious concern. The chest drains were removed at about 1.30 pm on 14 August, indicating that the bleeding had ceased. Mr Sherry was given blood transfusions and fluid replenishment in the form Hartmans solution. He was given morphine for pain relief and GTN (Tridil) to lower his blood pressure. His temperature climbed from what appears to have been a fairly low base (consistent with the plaintiff’s observations on her first visit) and then stabilised at 37 or 38 degrees from 2.00 pm.

75 Also measured was the pulse rate or heart rate. In Mr Sherry’s case, a normal pulse rate, prior to surgery, was somewhere between 70 and 80 bpm.

the aetiology of the bleeding

76 As will become apparent as this judgment unfolds, the sub-issues for determination are multitudinous. It seems to me that a (if not the) key question concerns the precise nature and cause of the haemorrhage which led to Mr Sherry’s death. This I have referred to as the “aetiology” of his blood loss / haemorrhage. (In saying this, I am conscious that, on one view of the evidence, it is not necessary to reach a concluded view on the aetiology of the blood loss; the significant question concerns what should have been made of the objective signs.) The second principal question, in part dependent upon the first, is what is the proper interpretation of the medical records taken as a whole, and what ought reasonably to have been made of them by those whose task it was to observe and interpret them. I have experienced some difficulty because the experts, generally, did not compartmentalise the issues as I have done. They tended (understandably, but not necessarily helpfully for my purposes) to run the two questions together. This brings me to a consideration of the expert evidence. Integral to an understanding of the expert evidence is an appreciation of some of the medical records, from the ICU Chart and the Progress Notes.

77 It is convenient now to set out the readings on the ICU Chart upon which all experts relied in reaching their opinions. These are the readings of:

- CVP

- temperature

- pulse rate

- urine output

78 I shall attempt a summary of what appear to be the relevant measurements recorded on the ICU Chart. In some cases the figures given represent my own interpretation of the ICU Chart since they do not appear to have been the subject of direct evidence. I do not understand them to be controversial. These readings were a central focus in relation to two issues: the aetiology of the fatal bleeding, and what they ought to have signified to trained observers.

CVP:

79 Initially, on his return from surgery, Mr Sherry’s CVP readings were within acceptable limits. From about 4.30 pm on 13 August there was a mostly consistent and marked decrease in CVP, dropping, by midnight, to a low of 2 and, thereafter, rising, and hovering at about 10 and thereafter fluctuating, but not in alarming degrees. It would, however, generally be categorised as low. The drop on 13 August was attributable to the post-operative bleeding and has no further relevance. Immediately post-operatively on 13 August his CVP was recorded as 12. On 14 August there were some fluctuations, from 5 or 5 ½ at midnight to 5 at 1.00 pm; at 2.00 pm it was 6; at 3.00 pm it was at a low of 3; and between 4.00 pm and 10.00 pm it remained steady at either 5 or 6.

temperature

80 Immediately post-operatively on 13 August Mr Sherry’s temperature was low, at 34 degrees. By 9.00 pm it had risen to what appears to be approximately 37.8 degrees, and by midnight about 37.2 degrees. On 14 August at 1.00 pm it was about 37.6 degrees; between 2.00 pm and 10.00 pm it remained steady at 38 degrees.

pulse (heart) rate

81 From a low base of 41 pbm, Mr Sherry’s pulse rate rose, at 2.00 pm on 13 August, to approximately 45 bpm. By midnight it had risen to 75 bpm where it stabilised. On the morning of 14 August it remained relatively constant, although with a sharp rise to 85 bpm at 4.00 am, followed by a drop to 75 bpm by 5.00 am, followed by several hours of stability. At 1.00 pm it was just under 80 bpm, but thereafter steadily climbed; at 2.00 pm to 79 or 80 bpm; 3.00 pm 90 bpm; 4.00 pm 98 bpm; 6.00 pm 108 bpm; 8.00 pm 104 bpm; 10.00 pm 104 bpm. Anything over 100 bpm is sufficient to be characterised as tachycardia. Thus, Mr Sherry’s readings justify a diagnosis of tachycardia, although these readings are of tachycardia in a moderate degree.

urine output

82 Considerable fluctuation is shown in the urine output over 13 and 14 August. In the hour before 2.00 pm and 3.00 pm on 13 August urine output was 25 ml; between 8.00 pm and 9.00 pm and 9.00 pm and 10.00 pm it was 80 ml for each hour; between 10.00 pm and 11.00 pm it was 35 ml. All of these readings were satisfactory. On 14 August, except for the hour between 2.00 am and 3.00 am, when it was 25 ml, it was above the 30 ml per hour which is considered the minimum acceptable, and between 5.00 am and 6.00 am it was as high as 80 ml. But between 10.00 am and 11.00 am it dropped to 10 ml and in the following hour to 15 ml. Between 1.00 pm and 2.00 pm it was 40 ml; between 2.00 pm and 3.00 pm 140 ml; between 3.00 pm and 4.00 pm 100 ml; between 4.00 and 5.00 pm 40 ml. There was then a significant drop. Between 5.00 and 6.00 pm it was 20 ml, between 6.00 and 7.00 pm 20 ml, between 7.00 and 8.00 pm it was 10 ml; between 8.00 pm and 9.00 pm and 9.00 pm and 10.00 pm it was recorded as 50 ml for each hour; between 10.00 pm and 11.00 pm it was recorded as 25 ml. The ICU Chart also records that between 11.00 pm and 12.00 midnight there was a urine output of 50 ml. It was generally agreed that the record of urine output of 50 ml between 11.00 pm and 12.00 midnight could not be correct (although different explanations for the recording were proposed). More importantly, counsel for the plaintiff submitted that the records of 50 ml each hour between 8.00 pm and 10.00 pm ought not be accepted as accurate. I will return to this record.

* * *

83 One of the many factors complicating the analysis of the aetiology of Mr Sherry’s death is that, even on post-mortem examination, the source of the haemorrhage was never determined. The pathologist reported to the Coroner:

“The source of the haemorrhage was not able to be identified. There were no bleeding points in any of the major blood vessels or heart and no evidence of leakage could be demonstrated from the coronary artery bypass graft. The presence of abundant haemorrhage into the left chest wall tissues raises the possibility that the source of bleeding may have been from an intercostal vessel, but this could not be proven at autopsy.”

84 This uncertainty was one of the circumstances that led to a dramatic conflict in the approaches taken by the medical experts called on behalf of the various parties. As the evidence progressed, three distinct theories emerged. These came at times to be referred to as scenarios (i), (ii) and (iii) (although there was no consistency in the numbering, and little as to the precise details of the theories). These scenarios were:

scenario (i): that bleeding commenced at about 1.30 pm from an inter-thoracic vessel, and was caused by the removal of the chest drains. On this theory, some damage had been occasioned to an internal vessel during the course of surgery, but one or other of the chest drains operated as a staunch or tamponade, preventing blood flow and blood loss until the removal of the drains at about 1.30 pm. From that time bleeding proceeded at a steady rate of between 200 ml and 300 ml per hour. This is the theory advanced on behalf of the plaintiff, and was sometimes referred to as “the chest drain constant bleed theory”; it was propounded by the two experts called on behalf of the plaintiff. I will at times refer to this theory as “the Glenville/Stow theory”;

scenario (ii): that bleeding inexplicably began very slowly from an intercostal vessel, probably a mammary artery, at some indeterminate time, and continued over a period of between two and four hours, and then accelerated. This was the theory proposed by Dr Marshman (t3239 – 3240), and was referred to as “the accelerating bleeding scenario” (“the Marshman theory”). A variation on this theory was that bleeding began at about 1.30, but was initially very gradual, accelerating rapidly at about 10.00 pm. This was the theory put by Professor Tatoulis (“the Tatoulis theory”). On either version of this theory, the pressure of the accumulated blood caused a rupture of the pleura, explaining the 10.10 pm sudden increase in pain.

scenario (iii): a sudden and massive bleed, attributable to unspecified causes, at some time around 10.00 pm. This was the theory favoured by Professor Hillman (“the Hillman theory”).

85 At one end of the spectrum lies the theory promulgated on behalf of the plaintiff: that an intercostal blood vessel had been damaged on insertion of the drain immediately post-surgery, but that the presence of the drains prevented bleeding from that wound until their removal at 1.30 pm on 14 August. Thereafter there was gradual and relatively consistent bleeding for approximately ten hours. On this theory, there would have been (and, on the plaintiff’s case, retrospective examination of the documentation shows that there were) a number of signs which should have alerted the nursing and medical staff to Mr Sherry’s condition.

86 At the other end of the spectrum lies the theory advanced on behalf of SAH by Professor Hillman: that, for some unexplained and inexplicable reason, sudden and massive bleeding began at about 10.10 pm. This theory had no proponents other than Professor Hillman.

87 The intermediate theory is that bleeding commenced at some time which may have been 1.30 or thereabouts, but was, inter alia, very minor (“more or less a trickle”), but accelerated, again at a time which could not be pinpointed, but around 6.30 pm.

88 The timing and the mechanism of the commencement of bleeding is of some significance. I emphasise that there is no suggestion that it was attributable to any actionable failing in the course of the surgery; its significance lies principally in its derivation, and the associated opportunity of observers to identify the signs and act upon them.

life expectancy

653 A significant issue arose as to Mr Sherry’s life expectancy. To some extent this contest depended upon the identification of the precise nature of the heart disease Mr Sherry undoubtedly suffered. Associated with that is an assessment of its severity and a prediction of the course it would have followed had he survived the surgery.

654 On this issue, reports were provided on behalf of the plaintiff by Associate Professor David Richards, a consultant cardiologist at Westmead Private Hospital and Clinical Associate Professor at the University of Sydney; and on behalf of the defendants by Professor Michael O’Rourke, Professor of Medicine at the University of Sydney and a specialist in cardio-vascular medicine and hypertension at St Vincent’s Hospital; and Dr Geoffrey Berry, Emeritus Professor in the School of Public Health, at the University of Sydney (who, while highly qualified in his own field, does not possess medical qualifications).

655 In determining what Mr Sherry’s life expectancy, absent the haemorrhage, would have been, the starting point – but only the starting point – is the Australian Life Tables. Mr Sherry was 46 years of age at the time of his death. The Life Tables published in the fourth (2002) edition of Luntz: Assessment of Damages for Personal Injury and Death indicate that at that age Mr Sherry would have had an expectation of living a further 32.82 years. That is not precisely the figure used by the experts. Professor O’Rourke worked on the 1998 figures of 34.68 years; Dr Berry used 1999 – 2001 table giving a life expectancy of 33.5 years. Professor Richards did not specify the basis of his calculations, but an arithmetical exercise from his report suggests that his starting point was 35 years. I would not, in the ordinary course, have thought that the discrepancies were of any great moment, and note these only to explain figures that might otherwise appear irreconcilable.

656 As I have indicated, the life table figures are a starting point only. As Professor Berry pointed out, the tables define the expectation of life of a group, not of the individual members thereof. The life expectancy of any individual member of the group may vary from that of the group as a whole by reason of facts and circumstances particular to that individual.

657 A number of factors are relevant to the calculation of Mr Sherry’s life expectancy. Predominant amongst these is his heart disease. It was this that gave rise to the major debate as to what his prognosis would have been. Subsidiary, but related, matters include his history of smoking, family history (of heart disease), physical fitness, and diet.

658 Professor O’Rourke concluded that, because of his heart disease, Mr Sherry’s life expectancy was reduced by 10 – 15 years (or 29% - 43%) to 20 – 25 years. I find the dimension of this reduction a little difficult to reconcile with Professor O’Rourke’s observation that Mr Sherry had no continuing risk factors for coronary atherosclerosis, and the Professor’s anticipation Mr Sherry would have undertaken all possible measures to prevent the recurrence of the disease. As against that, there was evidence that Mr Sherry’s mother had died at a relatively young age of heart disease and, of course, Mr Sherry’s own predisposition.

659 Professor Berry, whose statistical qualifications are infinitely superior to those of the other experts, but who was dependent upon those suitably qualified for medical information, concluded that the reduction in life expectancy was determined by the extent of the disease. This was a reflection of a dispute in the evidence about whether Mr Sherry had disease in one, two, or three arteries. Professor Berry considered that life expectancy would have been 26 years if the disease affected only one artery, 19 if it affected two, and 15 if it affected three. (In written submissions the defendants contended that Mr Sherry had “double vessel” disease.)

660 Professor Richards disagreed with Professor O’Rourke. He considered that Mr Sherry had a life expectancy of 28 years. Essentially, as I understand his report, this was because he had more faith in the success of the surgery. However, his opinion appears to have been predicated upon Mr Sherry’s having single, not double, vessel disease. In fact, Professor Richards took the view that Mr Sherry’s condition was something less than that that could be characterised as “disease”. He said in oral evidence:

“The assessment of prognosis, as I have done it, assumed single vessel disease when in fact he probably didn’t have disease to that extent ...”

661 Mr Glenville took a similar view.

662 Dr Marshman’s evidence in this respect is of some interest. At the time he saw Mr Sherry he was of, and acted upon, the view that Mr Sherry had single vessel disease. Following his examination of the autopsy report he formed the opinion that Mr Sherry had triple vessel disease. However, Mr Glenville and Professor Richards considered that the findings on autopsy were consistent with the diagnosis that had been made while Mr Sherry was alive.

663 As I think I have earlier made clear, I am unable to make any findings on disputed questions of fact on the basis of the credibility of any of these witnesses. Notwithstanding his plain interest in the outcome of the proceedings, I found Dr Marshman to be an entirely credible witness and one whose evidence was not coloured by his interest.

664 But, even in the written submissions of the defendants, no attempt was made to argue that Mr Sherry should be held to have had triple vessel disease.

665 Resolution of this issue is extremely difficult, based as it must be upon choosing the opinion of one highly qualified expert over another equally highly qualified expert. In my opinion justice will be done if I work upon the basis that Mr Sherry had a life expectancy of 22 years. That is the course that I propose to take.

666 There remain outstanding certain other issues, such as superannuation. The defendants accept that a figure claimed by way of funeral expenses ought to be allowed. That can be incorporated in short minutes of orders which I will ultimately direct the parties to bring in.

667 The orders I make are:

(i) verdict for the plaintiff against the first, second, and fourth defendants;

(ii) verdict for the third defendant;

(iii) matter stood over, to be re-listed for finalisation of orders.

**********