State of Queensland v The Estate of the Late Jennifer Leanne Masson

[2020] HCATrans 80

[2020] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B63 of 2019

B e t w e e n -

STATE OF QUEENSLAND

Appellant

and

THE ESTATE OF THE LATE JENNIFER LEANNE MASSON

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON THURSDAY, 11 JUNE 2020, AT 10.16 AM

Copyright in the High Court of Australia

MR S.L. DOYLE, QC:   May it please the Court, I appear with MR R.N. TRAVES, QC and MR C.J. FITZPATRICK, for the appellant.  (instructed by Crown Solicitor (Qld))

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR D.R. CAMPBELL, SC and MR A.S. KATSIKALIS, for the respondent.  (instructed by RMB Lawyers)

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Thank you, your Honour.  Can I start by apologising and taking responsibility for the delay - it was really from this end.  The appeal arises out of the treatment given by the Queensland Ambulance Service to Ms Masson late on the night of 21 July 2002.

KIEFEL CJ:   Excuse me, Mr Doyle.  I omitted to point out that we will be taking a break but because of the late start, we will take a 15 minute break at 11.30 and sit through until 1 o’clock.

MR DOYLE:   Thank you, your Honour.  As the Court please.

KIEFEL CJ:   Thank you.

MR DOYLE:   Ms Masson was suffering from a severe asthma attack.  The paramedic who was in charge of treating her was Mr Peters.  There were other paramedics present but he was the one who made the relevant decisions.  He initially administered intravenous salbutamol rather than adrenaline and that is really at the heart of this case.  Ms Masson for some time appeared to improve but then later deteriorated.  She suffered brain damage and some years later died.  It is obviously a very sad set of circumstances.

It can also be accepted on the causation findings that if adrenaline had been administered immediately upon arrival at the scene the outcome was likely to have been better.  Ms Masson had previously responded well to adrenaline, without adverse side effects.  But that was a fact unknown and unknowable to the paramedics who attended.  Nonetheless, our case and the trial judge’s findings were that the treatment she was given was not negligent.  The administration of salbutamol was a reasonable response by a paramedic to the patient’s presenting clinical conditions.

We will come to the detail of it shortly, but it is our submission that the trial judge, in what we urge is a carefully reasoned judgment, found that there were two responsible bodies of professional opinion about the use of adrenaline or salbutamol.  Adrenaline was the traditionally ordinarily preferred treatment for asthma patients in extremis, as was Ms Masson.

The trial judge found that the Queensland Ambulance Service manual, which is given to paramedics as a guide, was consistent with that traditional preference for ordinarily administering adrenaline and that preference really emerges from a treatment flow chart, to which I will take you shortly.  But even that traditional view did not preclude different treatment dependent upon the patient’s clinical conditions.

There was, his Honour found, a different and respectable professional view that salbutamol was an effective treatment of adrenaline, save for some limited circumstances which do not apply here and that salbutamol was in fact the preferred drug for treatment with certain clinical presentations, namely, tachycardia, which is in this case a rapid heart rate and high blood pressure, both of which Ms Masson had.  The trial judge, as I have said, concluded that what was done was a reasonable response to that patient’s presenting conditions. 

Now, along the way in reaching that conclusion he had considered whether Mr Peters himself had considered the application of adrenaline.  I will come back to that.  The trial judge held that Mr Peters had considered the administration of adrenaline.  The respondent identifies that question as the sole determinative issue in the proceedings, that is, whether Mr Peters considered the application of adrenaline.  Our case is that he did consider it but it is difficult to accept that it can be described as the sole, if at all, a determinative issue of the proceedings. 

Even if adrenaline was considered by Mr Peters, the Court of Appeal held, and the respondent urges that it is correct to have held, that unless the consideration led to the application of adrenaline it was negligent.  On the other hand, if adrenaline was not considered in the way that was required by the manual, which is the case put against us, on our evidence and on the trial judge’s findings it is still the case that the actual treatment which was given to Ms Masson was within the range of reasonable responses to be made by a reasonable paramedic to the patient’s presenting conditions.

If the sole determining issue was whether Mr Peters did or did not consider adrenaline, the respondent’s case fails on the question of causation because it did not seek to establish at trial or, indeed, on appeal, that had Mr Peters considered adrenaline he would have – it would have made any difference to his treatment.  We hope, as I said, to demonstrate the trial judge was correct to conclude that adrenaline was considered and rejected in favour of salbutamol for reasons which were reasonable.

Still by way of summary, in contrast, the Court of Appeal’s reasons are directed largely to the issue of whether the treatment conformed with the manual.  If your Honours go to the core appeal book, page 99, paragraph [163], we draw your Honours’ attention to the last sentence, that is, “Had there been” – can we ask you to read that, please.  The significance of that I will come back to later on. 

But the Court of Appeal has, we would urge, treated the question of what is the standard of care expected of a paramedic, not by reference to what would be the response of a reasonable paramedic to the conditions presented, but rather adherence to the manual.  Even if the paramedic was aware of conditions, and aware of a respectable body of medical opinion that said you should not use adrenaline, the Court of Appeal has concluded that it would be negligent to have done other than use adrenaline.

Now, this Court, in Rogers v Whitaker, to which I will return later on, has said that the standard of care is not determined solely or primarily by reference to the practice followed or supported by a responsible body of opinion of the relevant profession, yet here the Court of Appeal has in fact defined the question of what is the standard of care solely by reference to the standard supported by the Queensland Ambulance Service, despite the other points which we take you to which demonstrate that what Mr Peters did was not negligent.

Now, these are highly trained paramedics sent to stabilise a woman in serious condition and to transfer her to hospital.  It happened late at night.  They had minutes to make decisions, as you will see.  But the result of the approach adopted by the Court of Appeal, and urged by the respondent, is that they are robbed of judgment.  The guideline, which is a guideline - I will show you in a moment - is elevated to the test of the standard of care.

Your Honours will have seen from our outline of oral argument that there are three aspects of the Court of Appeal decision which are challenged.  The first concerns whether Mr Peters considered the administration of adrenaline at all.  The trial judge found he had and, as I have said, that was overturned on appeal, wrongly, we would submit.  The second concerns whether there was a respectable body of medical opinion in 2002 that salbutamol was an appropriate and effective treatment for Ms Masson at the time when she had elevated heart rate and high blood pressure.  The trial judge held there was and the Court of Appeal said that finding was not open on the evidence. 

The third issue concerns the conclusion I have just taken you to which is only expressed in the Court of Appeal, that even if there was a respectable body of medical opinion in 2002 that salbutamol was an appropriate treatment for Ms Masson and, indeed, that it was inappropriate to administer adrenaline and even if Mr Peters was aware of that, it would be negligent to act in accordance with it because it would be contrary to the terms of the manual.

There is a fourth related issue which I have touched on, namely, one of causation, that is, if, contrary to our case, negligence lay in failing to consider the use of adrenaline as the sole determining issue then it would be necessary for the plaintiff to have shown that had he considered it, it would have made a difference to his treatment.  That is an issue which was not dealt with at – that is, not established by the plaintiff at trial. 

For that issue, we have sought to rely upon an amended notice of appeal which we sent our learned friends in early February.  I am not aware whether leave to make that amendment is opposed, but we have filed a summons and a supporting affidavit of Ms Murphy, my instructing solicitor, exhibiting it as exhibit 4, the amended notice of appeal.  I am not sure if your Honours have that document, but it does two things.  It raises this causation question and it also adds to one of the grounds of challenge that the Court of Appeal has misconstrued the manual.

KIEFEL CJ:   Mr Walker, does the respondent oppose the grant of leave to amend?

MR WALKER:   No, your Honour.

MR DOYLE:   Thank you.  I will not trouble your Honours ‑ ‑ ‑

KIEFEL CJ:   You have leave, thank you.

MR DOYLE:   Thank you, your Honour.  Could we ask you then to go briefly to the trial judge’s reasons, please, in the core appeal book, page 44?  The trial judge’s – the summary of his conclusions are in paragraphs [151] to [154].  Could we ask your Honours to read those paragraphs, please?
To get to those conclusions the trial judge posed himself a series of questions, which I will take you to briefly.  The first starts at page 18, where he identifies in bold the question:

In 2002 was adrenaline ordinarily the preferred drug to administer to asthmatics in extremis?

His Honour answered, “Yes, ordinarily”.  If your Honours turn, please, to paragraph [56] on page 20 and read that, and then he notes in [57] that:

The traditional view would not have precluded the administration of salbutamol in preference to adrenaline if that was medically appropriate having regard to the discrete aspects of the patient’s condition.

Then in that regard, if your Honours go to the last two sentences of [58] on the next page – in fact, you could probably read [58] – his Honour there notes that it would come back to:

whether her high heart rate and blood pressure were conditions mitigating against the administration of adrenaline -

The second question his Honour asked himself appears on page 21:

Did Ms Masson’s condition render salbutamol a preferred or equally acceptable option to adrenaline?

Your Honours, his conclusion is in paragraphs [91] to [93], which we would ask you to read.  Particularly you will note in [93] he concludes:

there would have existed a responsible body of opinion in the medical profession ‑ ‑ ‑

and so on.  That conclusion was expressed after discussion of the various pieces of medical evidence, some of which I will take you to.  For the moment, can we ask you to note that it also follows immediately after the discussion which commences in paragraph [87] of the evidence of Mr Kenneally.  Mr Kenneally was a paramedic expert called by the respondent. 

If your Honours can read paragraphs [88] and [89] – I will come back to his evidence later on I think, but it is our submission that Mr Kenneally’s evidence supports the conclusion that his Honour reached that there existed a responsible body of medical opinion known to paramedics that favoured the use of salbutamol over adrenaline in certain circumstances.  I will come back to the evidence about that shortly.  The third question the trial judge asked himself is at page 29:

Was the non‑administration of adrenaline at the time of the initial treatment contrary to the QAS asthma guideline -

which is the manual we are talking about.  There then follows a lengthy discussion about the manual.  Can we take your Honours to the manual, please?  We have provided a supplementary book of further materials which contains only some extracts from this manual.  They all appear somewhere in the reasons but it is convenient to go to it altogether.  If your Honours go to page 6 you have the start of the manual.  Then if you turn to page 10 there is a page heading “Introduction”.  It tells you that:

The purpose of this manual is to provide Queensland Ambulance Officers with a comprehensive guide to prehospital clinical practice.

Then there is a heading “Patient Care Principles” and we are told:

This section covers the broad principles to be applied –

Then there is a heading “Case Management Guidelines” and we are told that this section covers various things:

and guiding principles to assist in patient management.  Flow charts have been included to guide all officers in considering appropriate patient care.

The flow chart is something that was central to the determination of the Court of Appeal.  We are told:

Within each flow chart:

- The diamond icon represents key clinical decision points.

- Shaded text boxes list the range of prehospital treatments.

- The reader is directed –

elsewhere.  There is then a heading “Clinical Pharmacology” which I will not tell you about now, and “Clinical Procedure Competencies” and reference to the “Glossary of Specific Terms”.  If your Honours then turn to page 19, there is an extract from the section which is called “Patient Care Principles”.  You can see that in the top right‑hand corner.  The subheading is “Clinical Judgement/Problem Solving”.  Can we trouble you to read the first two paragraphs and then the text within the first of the boxes, please?  Now, obviously some of the things we rely upon here is the manual is described as something ‑ I am sorry, the manual says:

The Ambulance Officer’s clinical judgment relies on a mix of knowledge, skill, experience, attitudes and intuition -

and so on, and the passage in the box makes it explicit that there can be departures from the manual, the guidelines provided in the manual, and that the patient’s best interests are paramount over compliance with the manual.  If your Honours turn to the next page, still in the same patient care principles, there is a heading “Judgement”, and we ask your Honours to read the first paragraph and the whole of the text in the box, please.  Then, on the next page, your Honours, there is a heading, “Reassessment”, and the reader is told that:

In every case, the judgement, consequential management plan and the effectiveness of implementation are continually reassessed and modified to best achieve the desired outcomes.

There is a little diagram which is meant to describe that.  If your Honours then turn to page 29, which is the flow chart, or the treatment tree, as it is sometimes called, and if your Honours have the core appeal book as well, if you would open it at page 32, only to draw to your attention that the document at page 29 of the supplementary book omits two things. 

Looking at the judgment, you can see there are shadings in boxes, and for some reason they have not been copied over to the supplementary book, and also in the core book you will see there is a pair of arrows with the words “PATIENT TREATMENT” between them at an angle on the right of the chart, which for some reason has not been reproduced in page 29 of the supplementary book.  The extract in the judgment is correct, there are omissions from the supplementary material book, but none of it is important for the purposes of our submission, but I thought I would bring that to your attention, though. 

So turning to page 29 of the supplementary material, it is the page that relates to asthma - there are pages that relate to other illnesses.  It has an arrow pointing down to “Imminent Arrest”, and below that a diamond, as it has been called, with certain information in it. A “GCS<12” - that is Glasgow Coma Score, I am told that represents - “Bradycardia” and “absent pulses”, if any of those is present you are sent to the right, according to this document, where there is to be 100 per cent oxygen administered, assisted ventilation, and the words “Consider adrenaline”.

If you go back to the left, below the diamond that is immediately below “Imminent Arrest”, we are told if no, go down to “Severe Asthma” and a similar sort of regime applies.  There are identified conditions, an arrow to the right and some identified treatments.  This is called the treatment flow chart.

Some things we should observe and truly are not controversial.  We accept that Ms Masson met the description of “imminent arrest” because of her respiratory arrest and, not that it matters, we would accept that she was also at risk of cardiac arrest if not treated.  The manual directs the reader to the right because her GCS was less than 12; it was six.  The only drug which is said to be identified as to be considered is adrenaline, although lower down the page you will see other drugs are to be considered for other conditions.

Mr Peters applied 100 per cent oxygen and he or his assistant provided assisted ventilation – that is, as the trial judge found, he appeared to follow the course to the right of that first diamond by providing oxygen and intermittent positive pressure ventilation, as it is called.  There was an issue in the case about whether he considered adrenaline, to which I will return.

The other thing your Honours will note about that page is that the treatments other than drugs are, in a sense, identified.  They are not described as things to be considered but rather things to be done, whereas each drug is identified as something not to be done but to be considered – consider adrenaline, salbutamol and hydrocortisone and so on, down the page.

Now, as to what “Consider” means, the manual itself contains a definition at page 36 of that book, which we would ask your Honours to read.  It is clear just as a matter of reading of the manual that in each case the identified drug is not:

automatically appropriate or sanctioned ‑

that something needs to be assessed about that.  As to the pharmacology section of the manual, if your Honours turn back to page 31 – we are now in the clinical pharmacology section of the manual – can your Honours read the last two paragraphs, that “Ambulance Officers must always consider” to the end of that page.

Then, if your Honours turn to the next page of the book you have the drug data sheet for adrenaline.  You will note its indications are cardiac arrest, which Ms Masson was not in; bradycardia, which she was not; anaphylactic reaction, which there was no evidence she was and, in any event, the paramedics could not know; she did not have croup; and you will see there is:

Bronchospasm unresponsive to Salbutamol –

is one of the indications for the use of adrenaline.  The precautions, on the next column, include hypertension, which is the high blood pressure, and the side effects include, amongst others, tachyarrhythmias, fast irregular heart or high blood pressure, hypertension.  If your Honours look at the next page there is a “Caution” at the top of the page:

The use of adrenaline may lead to hypertension, stroke, MI –

which is, we think, myocardial infarction, or:

life threatening arrhythmias.

The next page of this book is “Salbutamol” and you will see its indications are bronchospasm associated with asthma, different precautions and not entirely - some overlapping side effects but not the same, and there is no equivalent precaution, on page 35.

Now, the trial judge went through the manual and he expressed his conclusions – can we ask you now to go to the core appeal book – at page 36.  At paragraph [119] he refers to a report of Mr Hucker.  Mr Hucker was the paramedic expert called by the defendant.  The trial judge refers to Mr Hucker’s report as saying:

Adrenaline was an option.  However, being an option does not mean it must be used.  The QAS guidelines are designed to be flexible and used by well‑educated paramedics practising sound clinical judgment for the many various ways a patient can present with a disease or injury.

The trial judge at [120] says he agrees with that.

The following of the right arrow invites consideration of the option of administering adrenaline, it does not mandate that it must be administered.  The fact it was not administered does not per se indicate the asthma guideline was not followed or that there was an underestimation of Ms Masson’s condition.

Can I turn from that, really, introduction to the first of the three issues in this appeal and that is whether Mr Peters did in fact consider the application of adrenaline and the Court of Appeal’s conclusion that the trial judge’s conclusion that he had was able to be overturned.

KIEFEL CJ:   I take it, Mr Doyle, that you accept that a failure to consider, whatever “consider” means, would amount to a want of reasonable care?

MR DOYLE:   No, your Honour.  It could but if the ultimate – if the question was, was there a failure to consider something and that led to a drug which was not a reasonable response to the presenting conditions of Ms Masson being applied, that would be a want of reasonable care.  But the evidence here was that the drug that was applied was, in fact, a reasonable response to the presenting conditions of Ms Masson. 

So that, I suppose, forensically it is harder to say someone exercises reasonable care if they do not turn their mind to something but if, having turned their mind to something else, they apply what is accepted to be a – said to be a reasonable response of a reasonable paramedic, it cannot be a finding of negligence.  But it is put against us this is the sole determinative issue and if so, in a sense, we embrace that because the trial judge was plainly right to conclude that Mr Peters had considered adrenaline. 

I will go first to summarise why the Court of Appeal said the trial judge was wrong or why it is clear it was said that there had not been consideration of adrenaline.  The court really relied upon four things.  The first was it was said that him having given consideration to adrenaline was inconsistent with an unambiguously expressed statement made in 2009.  The second was, it was said, that Mr Peters did not in evidence say that his 2009 statement was a mistake.  The third is, it is said, that – such a case that he did consider it is inconsistent with the pleaded case.  Thirdly, it was said that Mr Peters’ oral evidence also supported the conclusion that he had not considered adrenaline. 

Now, I will come back to those reasons later but can I take you first to the trial judge’s reasons in the core appeal book at page 39.  You will see about halfway down the page his Honour commences with a discussion:

Was adrenaline considered?

Then, what follows is what we would urge as a careful consideration of the evidence as a whole.  The first thing his Honour touches upon in [132] is Mr Peters’ training and experience which we would ask your Honours to note.  The second thing which is touched upon is in paragraph ‑ ‑ ‑

KIEFEL CJ:   Mr Doyle, is his Honour referring to Mr Peters’ experience at the time of trial?

MR DOYLE:   Both.  Some of the things that he refers to are things which preceded the events of 2002.  As you can see he refers to his qualifications - his conduct in the 1990s, his qualifications in 2000 and 2001.  But I accept that that paragraph is referring to him at the time he gives evidence as being a highly experienced ambulance officer.

The next thing the trial judge refers to is the reason which Mr Peters gave in the witness box as to why he administered salbutamol in the first place, for which we would invite you to go to the supplementary book, please, to page 42 and read lines 16 to 28.  That is the passage to which the trial judge refers in the footnote to paragraph [133]. 

If your Honours keep that page in the supplementary book with you, in the trial judge’s reasons at paragraph [136] he then deals with Mr Peters’ evidence as to why he changed from salbutamol and administered adrenaline, which he did some few minutes – 17 or so minutes later, I think it is.  If your Honours in the supplementary book go to page 43 to lines 20 to 31, the reasons he gives are because of the change in her condition so that she becomes both bradycardiac and hypotensive – a low heart rate, low blood pressure.

Going back to the trial judge’s reasons at paragraphs [137] and [138], can we ask you to read those.  So the trial judge draws support for Mr Peters’ view from the fact that that coincides with the expert evidence to which I will have to take you later on.  Then his conclusion really is at paragraph [139] which we would trouble you to read, please.

The trial judge then went on to deal with the things which the Court of Appeal later relies upon to overturn his conclusions so that, commencing at paragraph [140] you will see that he says:

There were aspects of Mr Peters’ evidence which support –

the contrary view.  Then in paragraph [141 his Honour commenced to deal with the 2009 statement.  Can we ask your Honours to read paragraph [141].  So in that passage the trial judge is drawing attention to the - I will put it this way.  The trial judge identifies the contemporaneous 2002 conduct of Mr Peters as consistent with what is accepted to be the correct reading of the manual.  But once you go from “imminent arrest” to the first diamond and turn right towards 100 per cent oxygen, assisted ventilation, and “consider adrenaline”, his contemporaneous conduct supported the correct reading of the manual, albeit that his later statement might be inconsistent.  We would urge it is an orthodox approach to assessment of someone’s ‑ I will come back to that.

In paragraph [142], the trial judge then sets out at some length the content of the 2009 statement, which is the same passage extracted in the Court of Appeal’s judgment, and your Honours will see towards the end of it the trial judge has underlined the words which most clearly are relied upon against the proposition that Mr Peters considered adrenaline, that is that the language of not permitted, or prohibited, and so on.  It cannot be said that his Honour overlooked that point, he underlined it.  Then he goes on to consider it in paragraphs [143] and [144].  Can we ask your Honours to read both of those paragraphs and then I will say a couple of things about them.

The features I will come back to later on - his Honour first notes that some language in the statement does not seem to be favoured by Mr Peters, and suggests that it might have had contribution from others.  He describes the statement itself as “confusing” and, as I have already touched upon, suggests that, looking at the contemporaneous conduct of Mr Peters shows that what is said in the statement is true but was not, at 2002, his understanding of the correct reading of the manual. 

Now as to that, it is a perfectly orthodox approach to the assessment of the weight to be given to some out‑of‑court statement made seven years after the event, to compare it with the actual conduct at the time in 2002.  On the other hand, the Court of Appeal described the statement as both “unambiguous” and “apparently . . . carefully considered”.  Can your Honours go, please, to page 80, paragraph [61] and in [62] the Court of Appeal notes that:

In his oral evidence, Mr Peters did not say that there was a mistake in his witness statement -

As to those two propositions, the statement itself is not, we would urge, unambiguous at all.  Can we ask you to go back to page 73 of the core book, where the Court of Appeal sets out the same extract that I took you to in the trial judge’s reasons and you will see, in the third line of the quoted section:

The management is determined having regard for the patient’s clinical presentation and vital sign recordings‑

and then, on the next page, in paragraph 29, it says:

In view of the fact that Ms Masson was tachycardiac, that is she had a heart rate that was greater than 100 beats per minute and peripheral pulse were palpable -

et cetera, he says:

Adrenaline was not permitted -

which is the passage, of course, underlined by the judge and ultimately relied upon against us.  But he goes on to say:

I therefore elected to administer intravenous Salbutmol -

which seems to suggest some choice being made, some judgment based upon her presenting clinical conditions, and an election between the two drugs.  Now, the trial judge relied upon the inconsistency, as I have shown you, between the conduct in 2002 and the explanation in 2009 to conclude that the statement was confusing.  That does not feature in the reasoning of the Court of Appeal at all.  Indeed, in the passage I have asked you to read in paragraph [61], the Court of Appeal refers in its reasons to the 2002 statement being closer to the events than his oral evidence, which of course is true, but overlooks reliance upon the closest things, which is his conduct on the night of 2002.

As to whether it was carefully considered or whether there is a mistake, it is right to say Mr Peters was not asked and he did not say that the statement was a mistake.  But in his oral evidence, to which I will come shortly, he explains his conduct in 2002 in ways which show that the 2009 statement is a misstatement and, in any event, in other respects it is clear the statement was not made with his due attention. 

There are three things that we point to.  The first I have already taken you to.  The trial judge accepted that it included language which was probably not Mr Peters’.  Secondly, Mr Peters himself accepted that statements made in it were imprecise and he had not given them sufficient attention.  Can we ask you to go back to the supplementary book, please?  It is at page 45 and you will see at about line 38 the cross‑examiner starts:

All right.  Well, can I move you to the next statement then.

That is a reference to the 2009 statement.  He is really then pressed about something that is not directly relevant here.  I would just invite your Honours to accept this for the moment.  The adrenaline was administered commencing at 22.59, a minute after the paramedics arrived on the scene – I am sorry, salbutamol was administered a minute after the paramedics arrived on the scene but was continued over some time, and the point being made by the cross‑examiner here is that the 2009 statement is silent about the process of the application of salbutamol being one over time.  Indeed, you will see at about line 43 the questioner says:

but say nothing about any administration in the ambulance of salbutamol, do you? -

and some other things which probably do not matter.  If your Honours then go to the next page and read from lines 23 to 30, particularly line 30 as you can see he answers that with his inexperience, meaning in preparation of statements:

I didn’t feel at the time that it was important.

So it is obvious from his own evidence that there are things which he did which the cross‑examiner at least thought were important which he did not think were important and did not include in his 2009 statement, which is of significance when the Court of Appeal concludes that the statement is unambiguous and carefully considered, which it plainly is not.  The third aspect of that is also in the Court of Appeal’s reasons, if you go, please to page 77 of the core book to paragraph [52].  There is another aspect of the statement which is defective.  Mr Peters seemingly accepts it is so but he justifies it on the basis that the information can be found elsewhere. 

I have dealt firstly with the statement and the suggestion it was unambiguous, carefully considered and not a mistake.  Can I turn then to the trial judge’s consideration of the oral evidence.  If you go, please, to page 42 of the core book in paragraph [145], the trial judge sets out a lengthy passage of the evidence of Mr Peters including in response to some questions the trial judge himself asks and then passages of the cross‑examination.  It is the same passage that is cited in the Court of Appeal. 

I will take you to parts of it in a moment.  Of course, I would invite your Honours to read it but when one does it is apparent, in our submission, that Mr Peters did not say he believed he had no choice or that he was mandated to apply salbutamol.  Some of the language, we accept, is unclear.  But in each case where he refers to being prohibited from doing something or required to do something, it is in terms of that being required or prohibited for someone with Ms Masson’s presenting conditions. 

What the Court of Appeal did and what the respondent supports is to conclude that Mr Peters did not consider adrenaline at all because he believed he could not administer it to Ms Masson when, in fact, what he did was consider her conditions and conclude that he could not give adrenaline to someone with those conditions.  That is very much, in our submission, the consideration of adrenaline. 

Can I ask your Honours very briefly to go to page 38 of the supplementary book?  I hope that it is not too hard to read.  This is the ambulance form that was filled in by Mr Peters on the night.  On page 38 the fourth entry from the top, it will be hard for your Honours to read but there is a figure of “22.58” - that is the time they arrived at the scene.  Then, in the box at the bottom, there is a time of 22.58 and it records the observations they made of Ms Masson’s presentation then. 

The first entry she has a pulse rate of “150;R” and the “R” stands for regular.  She has a respiratory rate of 2 per minute, which is described as regular but the evidence elsewhere shows - I will not trouble your Honours to go to it - that the average adult breathes about 12 to 20 breaths a minute.  Her blood pressure is 155 over 100.  Her temperature, which is the next entry, is normal.  Her colour is cyanosed, which means blue, I am told, and then there is the Glasgow in the - it is hard to see but your Honours go down further there is a figure number “4” - there is a Glasgow coma score of “6” right at the very bottom, “22.58”.  If your Honours go to page 39, in the bottom half of the page you will see an entry:

22.58  I.P.P.V/I.P.P.B –

That is intermittent positive pressure ventilation was commenced immediately.  There were some other things done.  Then at 22.59 salbutamol is commenced and it is not until 23.20 that adrenaline is introduced.  Can we go back to the left‑hand side of page 38 again, to those columns at 23.06 – I am sorry, it is hard to read.  The pulse rate has now come down to 118.  The respiratory rate is now 12, which is within the regular range.  Blood pressure is still high.  Temperature is normal.  Her colour is now normal, and her Glasgow coma score does not change.

At 22.14, I think it is – there was a debate over whether it is a “5” or “4” but nothing turns on that - the pulse rate is down now to 94 and regular.  She is now breathing 14 times a minute, blood pressure still high, temperature normal, colour normal and the score is 6.

On the right‑hand side of page 39 you will see that at 23.15 they start transporting her to the hospital.  At 23.19, if you go back to page 38, there is a sharp drop in her condition.  Her pulse rate drops to 40, with other things, as you can see.  It is immediately after that that adrenaline is introduced.

So that the facts are consistent with what we urge but, as Mr Peters says, it was her presenting conditions when he arrived of being tachycardic and having a high blood pressure which caused him to select salbutamol and when she became bradycardic, when her pulse rate dropped significantly he changed to adrenaline.

Now, when you read this examination, in our submission what he is expressing is his evidence of his view as to the proper treatment of the patient, given her presenting conditions.  He is not a lawyer; he is a paramedic and he might reasonably express the view that because of her condition he was required to apply salbutamol because that is what is required in the exercise of his judgment to achieve the best outcome.  I took you to passages of the manual which showed that the best outcome for a patient trumps the terms of the manual and the paramedic is obliged to exercise judgment, skill, flair and intuition.

KIEFEL CJ:   Mr Doyle, the trial judge at paragraph [146], about halfway through the paragraph, says:

It is clear however that Mr Peters well appreciated that salbutamol and adrenaline were potential pharmacological options –

Do you say that that finding about his knowledge and familiarity with the drugs and the exercise of a choice is sufficient for there to have been consideration given?

MR DOYLE:   Yes, your Honour, recognising ‑ and I am going to state the obvious – this is an environment, someone’s front lawn at 11 o’clock at night roughly, where you have moments to make decisions.  One does not write down the pros and cons and weigh them up; one makes judgments based upon experience and, if we are right about the state of the medical evidence, as I will come to later on, he made a good judgment.  That is the process of considering.

It is not as if one has to test this in a vacuum.  The very things that he identifies as her presenting conditions, which caused him to apply salbutamol, are the very things which the medical experts we called say are the things which make salbutamol better than adrenaline because of the side effects of adrenaline.  So it is obvious, with respect, that he took into account those features to make that choice.  I hope I have answered your Honour’s question.

KIEFEL CJ:   Yes, thank you.

MR DOYLE:   In paragraph [145] – this is in the passage of his evidence ‑ the second paragraph, “No” - if your Honours can read that, and your Honours will see that it is underlined so, again, the trial judge is alive to this issue.  It is plain he uses the word “prohibited” but, again, by reference to the:

patient’s vital signs as Jennifer’s were presenting.

If your Honours go then to the next page where his Honour asks the question - if you could read that and the answer, the language that was used, his language of “indicated that I should” rather than “that I must”, and also the language of adrenaline being “inappropriate” as distinct from being “prohibited”.  If your Honours go down to the next question and answer that is underlined, the one that commences “So does “Not really” mean”, and you will see it concludes with the reference to:

the defined pathway I was required to go down. 

This is a passage particularly relied upon in the Court of Appeal, in paragraph [65] of their reasons – I will not take you to it.  The very next substantive question and answer in the next paragraph shows it was a deliberative and considered choice.

Then if your Honours in this passage go to where Mr Campbell commences cross‑examining and read the first two paragraphs, the things to which he points, tachycardia and hypertension, are things which do not appear on the flow chart treatment tree, which I took you to some time ago.  Rather, they are things which influenced his choice of salbutamol over adrenaline, from a reading not of the treatment tree but, as he describes it:

all the components of the – of the assessment tool -

by which presumably he means the whole of the manual, which, as we have shown you, requires him to exercise judgment and other things.  Then in the final paragraph, which is quoted here ‑ ‑ ‑

GORDON J:   Mr Doyle, before you leave that, does the trial judge deal with the evidence that Mr Peters gave in examination‑in‑chief that you took us to in the supplementary materials at page 42?

MS DOYLE:   Yes, that as to the explanation for why he first applied salbutamol.  Yes, he does, your Honour. 

GORDON J:   It is not in his analysis of this part of his reason.

MS DOYLE:   His Honour treats it commencing at the bottom of page 39 of the core book under the heading “Was adrenaline considered?”  The things to which he points, including paragraph [133], the reasons Mr Peters gave when he first attended as to why he applied salbutamol, and to conclude that, later on he also deals with why he changed that treatment to apply adrenaline, and that is at [136], and those are the two passages of his evidence I took you to.  So it is all part of the same discussion, but he is dealing with them, if you like, one at a time. 

I am going to come back to something that your Honours perhaps hinted at, but dealing with this final paragraph of the cross‑examination it is instructive that what Mr Peters says he relied upon was both his training and the manual which again shows, we would submit, some kind of exercise of deliberative choice and not merely following the mandate of a manual and adopting a suggestion I think your Honour just…..to me, of course that evidence cannot be read in isolation. 

It is to be read together with the evidence he gave as to why he first applied salbutamol and why he changed to adrenaline.  Indeed, it is to be read in conjunction with the medical expert evidence to which I will come which shows that it was a logical choice for him to have made, as I took you earlier to the trial judge saying that there was evidence from a responsible body of medical practitioners which supported the very thing which Mr Peters pointed to as showing that salbutamol was to be preferred for someone with Ms Masson’s conditions and, as I hope to show you later on, some of the respondent’s own expert evidence supports that same conclusion.

So the trial judge concluded on this topic in paragraphs [146] to [148] which we would trouble you to read.  Then in [149] his Honour, for completeness, recognises that there are some odd things said in the evidence, but expresses a conclusion consistent with what he has just said, that he did find that:

adrenaline was too risky by reason of ‑

her condition.  Mr Peters gave evidence over three days, although not full days, days two, three, and four of the hearing.  The trial judge identified that his tone and manner were matters that he took into account in the assessment of his evidence.  The trial judge was also able to weigh his evidence against the whole of the evidence, that is of Mr Peters and others, to which I will come, and those advantages are the things which are things often pointed to by appellate courts as to why they would not interfere with reasons, findings of fact, especially of credit, except in very clear cases.

We have in our written submissions relied upon Fox v Percy.  I will not trouble your Honours to go to it.  The language used there to describe the circumstances in which such a finding by a trial judge will be overturned is the language of something being incontrovertible, glaringly improbable, contrary to compelling inference, or as Justice McHugh put it:

something that points decisively and not merely persuasively to error ‑

I propose now to go to the Court of Appeal’s reasons to explain why they do not satisfy that test, but your Honour ‑ ‑ ‑

KIEFEL CJ:   That might be a convenient time then, Mr Doyle.

MR DOYLE:   Thank you.

KIEFEL CJ:   Yes.  We will adjourn for 15 minutes.

AT 11.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.43 AM:

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Thank you, your Honour.  If your Honours would go in the core book to page 80, please. 

KIEFEL CJ:   I am sorry, which book was that?  The core appeal book?

MR DOYLE:   Yes.  This is the reasons of the Court of Appeal identifying the four reasons that I took you to at the outset.  Paragraphs [61] and [62] are directed to the proposition that the Court of Appeal thought the statement was “unambiguous” and “carefully considered”.  Paragraph [62] records:

Mr Peters did not say that there was a mistake –

in his statement.  Paragraph [63] refers to the pleaded case and then [64] and what follows concerns his oral evidence.  We can be brief as to why these considerations do not satisfy the test in Fox v Percy.  The statement is often ambiguous because it recognises an election was made and the language of “prohibited” is explicable as a conclusion after considering the presenting conditions as distinct from one made without consideration of those things. 

But, in any event, this is an out‑of‑court, arguably inconsistent statement.  It is not contemporaneous with events seven years later.  It is seemingly not carefully prepared, a matter I will come to.  It is inconsistent with what he did in 2002 and with some of his oral evidence.  The witness has been called.  He has given his evidence and explained what he did.  That evidence, that statement cannot be, with respect, sufficient to satisfy the various tests articulated in Fox v Percy, on its own or together with the other things I will take you to. 

As to the suggestion that Mr Peters did not say it was a mistake, I have already taken you to the evidence about that.  He did, not in those words but he showed it was not one that he gave his careful attention to.  The Court of Appeal records in paragraph [52] of the reasons an example of that, and the trial judge records that it includes language that he doubts is Mr Peters’. 

As for it being inconsistent with the pleaded case, Mr Peters was never asked about it.  He is not responsible for the pleading.  Pleading is not evidence.  But if someone wants to contend that what he is saying should not be believed because it is inconsistent with the pleading he should at least be asked about it and absent that opportunity it cannot be said that the fact of a pleading gives rise to some incontrovertible or glaringly improbable contrary conclusion. 

As to the oral evidence, we have already taken your Honours through that.  The language which was ultimately used of “indicated I should” and something being “appropriate” is not the language of mandate.  If your Honours go to the last sentence of paragraph [65], one of the things that the Court of Appeal relies upon to overturn the trial judge’s conclusion is this:

At no point in his testimony did Mr Peters say that he was concerned by the risk of a serious adverse reaction to adrenaline, which he then weighted against the apparent benefits, according to the CPM, of adrenaline as the preferred drug for a patient in the category of “imminent arrest”.

It is true, he did not say that but he had moments to do what he did and the kind of artificial analytical approach that is reflected in this passage is unrealistic, in our submission, for the conduct of paramedics at the scene of what is an emergency.  So that the very things to which the Court of Appeal refers, in our submission, did not justify overturning the trial judge’s conclusions.  There is a degree of unreality, in our submission, to conclude that this trained paramedic did not consider adrenaline. 

I have already taken your Honours to this, but within a minute of arriving he identified features of Ms Masson’s critical conditions which expert emergency medical practitioners affirm are things which favour the use of salbutamol rather than adrenaline and he stated in his evidence that it was those conditions which led him to administer salbutamol. 

That is what we wish to say about what our friends call the sole determinative issue.  I have already touched upon - if it is, our friends fail on causation because they do not show that Mr Peters, had he considered adrenaline, would have acted any differently and all of his evidence shows that he would not have.  It was because of her presenting conditions that he chose to administer salbutamol.  That is a step which is skipped in the case against us.

Can I move to the second question in the appeal which concerns whether there was a responsible body of medical evidence, et cetera, of the kind which the trial judge identified?  There are really two questions, whether there was that body of evidence and whether it was in existence in 2002.  In summary, the trial judge found that there was a responsible body of professional opinion that both adrenaline and salbutamol were equally effective in the treatment of asthma.  The Court of Appeal has understood the trial judge was only making that finding at the present day and not in 2002.  In fact, the Court of Appeal has understood the trial judge’s finding that there was no such body of professional opinion in 2002.

That is so, as appears in passages of the Court of Appeal judgment I will come to in a moment.  More importantly, the trial judge found that there was a responsible body of professional opinion that favoured the use of salbutamol over adrenaline for someone with Ms Masson’s presenting conditions of being high blood pressure and high heart rate.  The Court of Appeal agreed that the trial judge made that finding and that he made it in 2002, but said that it was not open on the evidence. 

Now in reaching its conclusions, the Court of Appeal has firstly misstated what the trial judge said, and also misstated the evidence.  Can we start by going to what the trial judge said in the core appeal book at page 45.  If your Honours could, in a moment, read paragraphs [153] to [155], but we note at the outset that his Honour is plainly talking about the events as they were on that night in 2002. 

If the Court could then go back to page 20 of the core appeal book, please, and read paragraphs [55] and [56].  Now, your Honours, we accept that it is possible to read paragraph [55] as referring to a credible body of medical practitioners finding salbutamol was equally effective as being a finding only at the trial date.  I suppose it is possible.

We do not suggest that is what the trial judge meant.  Rather, he identified the traditional view as being preferred, and the shift in that preference, which we would urge suggests that at all times there are at least two views, one being predominant, the other less so but growing in prominence.  But in any event, if you go to paragraph [56], the trial judge is plainly directing his attention to 2002, his focus on the timing and degree of the shift in preference.

At 2002 he refers to the traditional predominant view of the profession but he records that even then it was not the sole credible view.  He is to be understood, we would submit, as referring to credible views representing clinical practice, though not a view which is the predominant one. 

It is said by the Court of Appeal that the trial judge is drawing a distinction between a credible view and a view of a responsible body of the profession.  That, in our submission, is not a fair reading of paragraph [56].  The credible view he is speaking of is a credible view as to acceptable clinical practice. 

So that when one goes to the Court of Appeal’s reasons and sees reference to the trial judge expressing views as at the present day, that is not an expression found in the trial judge’s reasons at all and, we would urge, inconsistent with what is said in paragraphs [56] and [153] to [155] to which we have taken you. 

The evidence, which I will take you to, which gives rise to those credible views is the same evidence giving evidence to support the finding the trial judge ultimately makes about there being a responsible body of professional opinion in 2002 which favours the use of salbutamol in certain circumstances.  Those views are plainly expressed as at 2002.

Before we go to the evidence, can I take you back to the reasons of the Court of Appeal commencing at page 91 because they are, with respect, difficult to understand.  The discussion of this topic commences at paragraph [131] and you will see about halfway down that paragraph the reference to “Speaking of the present day”, and that is relied upon by the Court of Appeal to distinguish some of the trial judge’s findings although, as we have submitted, not something expressed by the trial judge.  Then, when you go to paragraph [132], the Court of Appeal records:

The judge then addressed another question, namely whether Ms Masson’s condition rendered salbutamol a preferred or equally acceptable option to adrenaline.  After an extensive discussion of the evidence of the experts his Honour, whilst not directly answering that question, made these findings -

But what the trial judge did answer is in paragraphs [92] and [93] of that extract.  I think I may have asked your Honours to read this before, but can we ask you to read [92] and [93] of the extract, please.  We are not in a sense quite sure why it was said the trial judge did not answer the question he asked himself. 

It is I suppose right to say that he did not say that all medical opinion was that salbutamol was to be preferred to adrenaline for someone with Ms Masson’s presenting condition.  That was not the evidence.  But he did find, relevantly, that there was a responsible body of medical opinion to that effect in paragraph [93], to which I have just taken you. 

But if you go to paragraph [133] and read the first two sentences of that – and, again, it is hard to understand what the point is here.  The Court of Appeal records that the trial judge did not prefer Dr Brown over other experts.  What is clear from reading the trial judge’s reasons is he accepted both, that there are two schools of medical opinion, one favouring adrenaline, the traditional view, as he described it, and one favouring salbutamol for someone with Ms Masson’s presenting conditions.

Then, if your Honours read the next three sentences of paragraph [133], we would urge that the trial judge did make the finding that the Court of Appeal records he did not.  If you turn back, please, to page 44 of that book, to paragraph [151], particularly the last sentence:

Opting to administer salbutamol in preference to adrenaline in those circumstances –

namely, her conditions:

was a reasonable response to the known risks.

If your Honours then turn in the Court of Appeal’s reasons to page 98 of the book under the heading “Was Mr Peters negligent in his treatment?” and in this paragraph the Court of Appeal draws what we contend is a strained decision, not really evident from the reasons as a whole between credible views and a credible body of professional opinion, that is, their Honours seem to be saying that his Honour’s view about the two drugs being equally effective was not a view held in 2002.  For the reason I have explained to you, that is a misreading of his reasons.

BELL J:   I am sorry, what paragraph are you referring to in that submission?

MR DOYLE:   Paragraph [160] of the Court of Appeal, compared to paragraph [56] of the trial judge.

BELL J:   Yes, thank you.

MR DOYLE:   The next paragraph, [161], records the finding by the trial judge that in 2002 there was a credible body of professional opinion supporting salbutamol in preference to adrenaline for a patient with Ms Masson’s presenting conditions. 

Now, it is convenient at this stage to ask you to read the last two sentences of that paragraph, although it is relevant to a matter I will come back to in the third issue in the appeal.  But as to the finding of the trial judge that there was that credible body of opinion that salbutamol was to be preferred for someone with Ms Masson’s conditions, in paragraph [164] of the Court of Appeal, they conclude that it:

was not supported by the evidence.

BELL J:   That is a conclusion, Mr Doyle, that draws partly on the finding at paragraph [162] that the manual made sufficiently clear that:

adrenaline was the preferred drug in order to achieve a fast and effective dilation of the bronchial passages ‑

Was there evidence, either from Mr Peters or from the experts who were relied upon by either side, concerning the reference to the effective time of response to salbutamol and adrenaline on which paragraph [162] is partly posited?

MR DOYLE:   No, and I am going to come to that, but can I, the starting of that proposition your Honour put to me, we would not accept.  Paragraph [162] is directed to another question, but the matter I am addressing now is the Court of Appeal concluding that the medical opinion, forget for the moment the manual, the medical opinion did not support, in 2002, a conclusion that the responsible body of professional opinion that salbutamol should be used for a person in this condition.

BELL J:   Yes.

MR DOYLE:   Whatever the manual might say.  Now, the court does not actually identify the evidence to which they are referring, but I suppose it is the absence, they would say, of evidence, and I am going to take you to why that is wrong, but if you go then to paragraph [165], this seems to be part of the reasoning in support of [164].  It is, with respect, again, very hard to understand the point that is being made.  It is really a hypothetical. 

As I will show you in a moment, the appellant’s medical evidence was directed to Ms Masson’s actual conditions on the night.  It explicitly suggests that salbutamol was equally effective, and explicitly says that because of her presenting conditions that was a reason not to apply adrenaline, but rather apply salbutamol. 

Now, those expert witnesses did not give evidence based upon the premise which is articulated in [165] because it was inconsistent with their opinion.  But we would ask, rhetorically, why should that matter?  If the evidence they give actually supports the trial judge’s conclusions, why does it matter that they could have given other evidence which would support the trial judge’s conclusions on some hypothesis, which was a hypothesis they would reject.

Now can I move to the evidence, and I will do this largely by reference to the findings, as far as I can.  Your Honours can note that the trial judge found Ms Masson was not in cardiac arrest when she was initially treated by the paramedics.  Had she been, we would accept that adrenaline should have been used.

The trial judge dealt with the evidence of the various experts.  Can we start with Professor Brown, please?  If your Honours go to the appellant’s book of further materials, which is the larger of the books we sent you, at page 165, in a report of Professor Brown, at point (c) you will see that he was addressing the proposition:

Failed to administer adrenaline –

et cetera.  The first line of his response is:

I find absolutely no fault with this for a number of reasons -

Can we ask your Honours to read – it would be sufficient for our purpose if you read that paragraph and then read paragraph div.  Still in Professor Brown, if your Honours go to page 201 and read the “Item 13, Page 5” entry, that is the first paragraph on the page.  Then from lines 22 to 32.  Then if we could ask you to go to the core appeal book – I will come back to that bundle in a moment – to page 26.  In paragraphs [80] to [83] the trial judge recites various pieces of evidence of Professor Brown.  You will notice it is sufficient for our purposes that in paragraph [80] he refers to the feared side effects of adrenaline.  He refers to the side effects in paragraph [81].  Can we ask your Honours to read paragraph [83], expert evidence, which the trial judge obviously accepted, that:

“You don’t give adrenaline to somebody who has got a rapid pulse and a high blood pressure –

because of the reasons that he gives.

NETTLE J:   When a patient still has a confusing heart rhythm?

MR DOYLE:   Correct, and there was no problem with the confusion of this patient at the time.  Professor Ramin is the next expert who is referred to.  I will just tell your Honours that in the bundle, in the appellant’s book of further materials at page 259, Professor Ramin makes clear that he is expressing his view current as at 2002.  Indeed, he repeats that in a number of places in his report.  His evidence is summarised in paragraph [84] of the trial judge’s reasons which describes one of the side effects of adrenaline can be “a benefit or a negative”, as he describes it.

The next that the trial judge deals with is Professor Boots, and can we ask you to read paragraphs [85] and [86] of the trial judge’s reasons.  Can we supplement that by going to the appellant’s book of further materials to page 292.

GORDON J:   Sorry, Mr Doyle, what was that reference?

MR DOYLE:   Page 292 of the appellant’s further materials, and at line 12 you will see the cross‑examiner puts a suggestion to him.  We would ask you to read 12 to 19.  Then the trial judge asks some questions, but we would ask you to read from lines 37 to 40. 

And when they have been –

He is talking there about putting salbutamol and adrenaline together in tests:

in the studies we’ve got, they have been shown to be equivalent, and the emergency room studies have shown to adrenaline is associated with a higher risk of complications, particularly cardiac arrhythmia.  So I can only quote the facts that I have about practice, not supposition, sir.

GORDON J:   What are we to make of the trial judge placing little weight on the evidence of this witness at paragraph [70]?

MR DOYLE:   That is by reference to published papers.  There was a challenge about the extent to which published papers did or did not reveal things, but in the passage I have just taken you to he is talking about emergency clinical practice.

Now, that is some of the appellant’s evidence, but I wanted to just take you to some of the respondent’s evidence, and the first is Professor Raftos.  This is referred to in the trial judge’s reasons at paragraphs [78] and [79], which we would ask you to read.  Then, your Honours, could we take you to, in our further materials, page 302 and at line 10, you will see the questioner says:

Have you got that now, Doc ‑ Professor?‑‑‑Yep.

The “that” he is talking about is the ambulance form that I showed you earlier at pages 38 and 39, which records the various things that occurred on the night.  There is a whole series of questions put to this witness, and he accepts that there was improvement of Ms Masson over time as a result of the application - after the application of salbutamol.  But the passage we particularly want to draw to your attention is at the top of page 303.  He is asked:

No and why was IV salbutamol an appropriate first choice ‑ not first choice ‑ initial choice?‑‑‑It has less adverse effects than ‑ than adrenaline when you give it intravenously and it’s the standard medication to be used at ‑ in ‑ in the first instance and so that’s what you would do.

Then further down that page, lines 22 to 32, the doctor says he:

personally would have followed the salbutamol with adrenaline.

Then he is asked about what paramedics might do, and he cannot really say.  So that to the proposition that there was no responsible body of opinion in 2002 that supports the use of adrenaline in preference to - sorry, that supports the use of salbutamol in preference to adrenaline for someone with this woman’s condition - so apart from our own evidence we can point to Professor Raftos who himself said that is what you would do because of the additional side effects of adrenaline.

Can we add to that the evidence of our - there were only two expert paramedics called.  There was Mr Hucker, and in that book of further material, if your Honours turn to page 272, this is a report responsive to Mr Kenneally - and I will take you to Mr Kenneally in a minute - but if your Honours could read the first paragraph against paragraph h and then on the next page, at 272, the top paragraph, please - I am sorry, 273, top paragraph.

NETTLE J:   Mr Doyle, are you going to deal with the Court of Appeal’s criticism of Hucker that his evidence was based upon a recalcitrance to accept imminent arrest?

MR DOYLE:   I was not proposing to, your Honour.  The identification here was evidence as to adrenaline being an option which goes to the question of what was the state of knowledge in 2002 as distinct from what was the appropriate treatment on the day.  There is no dispute about his evidence as to the existence of a known option in 2002, as I would hope to demonstrate when we come to Mr Kenneally’s evidence who was the paramedic called by the respondent.

If your Honours would go to the supplementary book, please, to page 48, that is the appellant’s supplementary book of further materials.  At page 48, line 26, he is cross‑examined:

And from time to time, in different – we call it jurisdictions.  Different places, different countries, there’s been a discussion over the last 20 years about salbutamol or adrenaline?‑‑‑I disagree with that.

He would say it is more than 20 years.  So the disagreement is not a matter of substance but rather it has been going on for longer than 20 years.  He says “Forever”.  Then if you turn, please, to the next page at about line 8:

No, that’s right.  So then you go to the question of whether it’s IV salbutamol?‑‑‑IV salbutamol, yes.

. . . 

Or abandon salbutamol and go to adrenaline?‑‑‑They’re the choices.

If your Honours then go to the next page, to line 8 through to line 21, so that the expert paramedic called by the respondent accepts there is a vying between these two drugs for pole position over a very long time but…..2002 and that he accepts many people in Mr Peters’ position would have chosen salbutamol. 

Now, all of that evidence, in our submission, is consistent with and supports the trial judge’s finding.  The errors in the Court of Appeal show, we submit, really that there was a body of professional opinion described by the trial judge, both the view that in 2002 the two drugs were equally effective but perhaps more importantly that in 2002 that someone with Ms Masson’s presenting conditions, salbutamol was to be preferred.

Our learned friends in their written outline suggest, and this is in paragraph 69 of their written outline, that, in fact, there is an inconsistency between what we say is the trial judge’s approach and the finding on causation.  We can deal with that relatively briefly.  There was no inconsistency.  The causation findings of the trial judge were, first, if your Honours go in the core appeal book to page 47 to paragraph [167], the trial judge relied upon Ms Masson’s prior responses to adrenaline in 1997 and 2002 without side effects as a step in the reasoning to say that if adrenaline had been administered she would have performed better.  But of course neither of those things was known to the paramedic or could have reasonably been known to the paramedics on the night.  The second aspect of the trial judge’s findings is at [182] ‑ ‑ ‑

KIEFEL CJ:   Mr Doyle, I take it you do not take issue with that aspect of causation that the administration of adrenaline would have produced a better outcome – that is not part of your argument on appeal?

MR DOYLE:   No, your Honour.  No, because – the significance to liability is of course the point I just directed.  But it is something that is known at a trial but not known on the night.  The next aspect I can deal with briefly is at [182].  His Honour also addressed the question whether the time between when Ms Masson collapsed and when the paramedics arrived was such that it was too late, whatever they had done.  At [182] he concluded it was not too late.  But of course neither of those findings is relevant – determinative of the liability question that we are dealing with now.

I should, however, deal with one point that is raised in the Court of Appeal in paragraph [33], page 72.  There is material that goes before this, but I will explain that - if your Honours could just read paragraph [33].  The manual was in evidence and pages of it dealt with the response time to drugs.  The Court of Appeal referred to those as being something which supports the conclusions which they reach that adrenaline was likely to be more effective and preferred.

Each of the respondent’s experts’ reports had reviewed the manual.  I will take you to the evidence if necessary, but each of them was given the manual and reviewed it, and was asked to comment upon whether the treatment complied with the manual.  None of them referred to the passages relied upon by the Court of Appeal, which leads to the conclusion in paragraph [33]. 

The same is true of each of the appellant’s expert witnesses.  They were given the manual and none of them said that the nominated response time of the drugs was relevant.

This topic was not put to Mr Peters and it was not put to either of the expert paramedic witnesses.  So whatever support it offers needs to be weighed up against not one of the witnesses that were called saying it affected or was relevant at all with their views in any way.  So it is our submission it does not ‑ there is some support that the Court of Appeal points to, it is not determinative of their reasons, but it should not be given any weight.  Can I move from that quickly to the ‑ ‑ ‑

BELL J:   Can I just ask you, Mr Doyle, did the Court of Appeal refer to that finding other than in paragraph [162] where their Honours refer to it in the context of the teaching of the manual?

MR DOYLE:   I do not think so but I will have others check more carefully than I have been able to do.  Can I move very quickly to the third of these topics, the third of the issues, which was that the Court of Appeal held that, even if contrary to what I have just taken you through, even if there was a respectable body of medical opinion in 2002, that salbutamol was an appropriate treatment for Ms Masson and indeed that because of her condition adrenaline should not have been used, and even if Mr Peters was aware of that, it would have been negligent for him not to administer adrenaline.

The process of that reasoning I will have to take you to.  It commences at core appeal book page 97, about halfway down:

Did the treatment conform with the CPM?

The conclusion on that aspect is at the next page, paragraph [156].  Principally that conclusion is because of the lack of consideration of adrenaline that the court discussed.  You will see in [156] they refer to another aspect, that the manual was not followed because twice the permitted dosage was applied.

That should not be a matter relevant to liability at all for these two reasons.  The trial judge, in paragraph [14] of his reasons ‑ I will read them to your Honours rather than trouble you to go back to them – records that:

the plaintiff did not rely upon that as a particular of the alleged negligence ‑

the over‑administration of salbutamol.  Secondly, there was evidence ‑ which I will not take you to but I will ask your Honours to make a note of – that there was a very significant safety margin in salbutamol provided intravenously.  Dr Brown in fact refers to it as “an enormous safety margin” and that is in our supplementary book at page 66, line 11.  That is a bit of a distraction from the point we are now going to.  If your Honours then go to paragraph [161], to that last sentence that I asked you to read earlier on, where Justice McMurdo says:

As I have said, an ambulance officer could not have been expected to know of the existence of competing bodies of medical opinion ‑

and so on.  Where his Honour says that earlier is in paragraphs [148] and [149], which I will not bother taking you to.  Now, it may be accepted that paramedics do not have the training of emergency specialist doctors, but it does not follow they are not trained and competent to make the judgments which are required in the discharge of their profession, and the trial judge, in the passages I took you to earlier, in paragraphs [119] and [120], accepted Mr Hucker’s evidence that they are highly experienced and trained people.

The Court would note that Mr Kenneally, a paramedic, was seemingly aware of the fact of those competing medical opinions which had been the subject of debate for decades, he would put it.  But the approach of the Court of Appeal in [161] and in some other passages I will take you to, really sets the requirement of reasonableness as compliance with the manual. 

If your Honours then go to [162], the thing being pointed to is the manual’s view of things and that Mr Peters needs to approach his judgment and exercise of care by having regard to principally what the manual says.  Then at [163], which is the ultimate error, in our submission, in the last sentence, which I have taken your Honours, I think, several times to now, that, in our submission, reveals the error in the Court of Appeal’s approach.

The requirement, if there is one, of this manual - I am sorry, it reflects two things.  One is a misconstruction of the manual, and also a misapplication of the law, the Rogers v Whitaker approach, to which I will come.  In terms of the construction, the requirement to administer adrenaline as a preferred drug only appears in the flow chart.  But to treat that as requiring the administration of adrenaline is inconsistent with the rest of the manual.  It is inconsistent with the evidence of the paramedics, and inconsistent with what doctors have described as a reasonable response.

In terms of the manual itself, I took your Honours earlier to what it provides, which you will recall, the manual requires paramedics to exercise judgment, make assessments, and give consideration to adrenaline.  The very words “consider” contemplate that it may not be administered, with respect, but that is made very clear by the definition of the word “consider”, which goes on to say that the fact that it requires consideration does not imply that the treatment is automatically appropriate or sanctioned. 

The introductory section of the pharmacological section I took you too, I will remind your Honours, says that the paramedics:

must always consider the implications of any drug administration -

and:

Weigh up the potential benefits of the drug and the potential adverse effects ‑

The clinical judgment problem‑solving section explicitly said that there could be deviations from the guidelines and other sections make it plain that it is a guide.  The manual identifies a caution which is particularly apposite to this case that adrenaline may lead to hypertension, stroke, heart attack or life‑threatening arrhythmias.  The approach of the Court of Appeal does not explain how any of that is to factor into the consideration which it is said a paramedic must do in accordance with a particular part of the manual, but clearly that is a sobering caution that should be weighing on everyone’s mind.

It is wrong as a matter of construction and it is wrong as a matter of law.  The standard of care is what the law tells us represents the response of the reasonable paramedic to foreseeable risks.  Here, this paramedic did what the respondent’s own paramedic accepted would be the response of many reputable paramedics.  The administration of salbutamol is what one of the respondent’s own expert doctors said he would have done because of the lesser side effects, and it is consistent with each of the expert evidence that the appellant called. 

In our submission, that speaks of a reasonable response by a reasonable paramedic to the identified risks.  The error of the Court of Appeal really is to treat the professional guideline as the standard of care, which is contrary to the law in this country including as articulated in Rogers v Whitaker to which we have referred in our written submissions and I will not take your Honours to it. 

The respondents seek to support the approach of the Court of Appeal by arguing this, that the appellant should not be allowed to encourage its paramedics to rely on outside information when assessing what treatment to provide to a patient.  Now, by outside information what they really mean is outside the flow chart.  But, in any event, that is precisely what the manual calls for. 

The human condition is not one capable of any sort of application of some algorithm.  It requires judgment, skill, intuition, as the manual actually calls for.  The manual is a guide to experienced trained paramedics and they are expected to bring all that to bear, not just the words of the manual, when they go to treat someone. 

The approach we would urge that we have submitted is the orthodox one.  It says nothing about what might happen if the paramedic relies upon outside information which does not have the support of a responsible body of professional opinion.  Obviously in that case it would be different, but in this case the paramedic applied a treatment which was consistent with a responsible body of professional opinion as being the preferred treatment for someone with this woman’s condition and that, with the greatest respect, cannot be negligence merely because it does not comply with the consideration which a court later says that the standard read in a particular way required.  Justice Bell, I think you asked the question about some references earlier.

BELL J:   Yes.

MR DOYLE:   I have not myself checked them, but in the Court of Appeal I am told if you note paragraphs [26], [30], [32], [33] and [144].

BELL J:   Thank you.

MR DOYLE:   Your Honours, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Doyle.  You do not need to deal with your fourth point, causation, any further?

MR DOYLE:   I can if your Honours would wish me to elaborate.  The causation question is one which on the case as it is urged against us is a real question.  On the way it is put by our learned friends, the sole determinative issue – now I have lost Mr Walker.

BELL J:   So have I.

KIEFEL CJ:   Yes, we have too.  We will adjourn briefly while those who are able to do it try to get a reconnection.

MR DOYLE:   As your Honour pleases.

AT 12.39 PM SHORT ADJOURMENT

UPON RESUMING AT 12.43 PM:

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Can I just say briefly, on the case which is urged against us the sole determinative issue is meant to be whether Mr Peters did or did not consider adrenaline and, if that were so, it would be necessary in order to establish causation to show that, having considered it, he would have done something different to what he did.  There was no attempt to do that at trial. 

We do not accept it is the sole determinative issue, but were it, it would nonetheless lead to – if we are right about – I am sorry, it would nonetheless lead to the appeal succeeding.  Why it does not arise is because the Court of Appeal skipped over that finding.  They in fact, for the reasons I have just taken you to, conclude whatever consideration Mr Peters did or did not give, he had to apply adrenaline.  I am simplifying the substance of it.  It would be negligent not to do it.  That is, in our submission, wrong and if that is wrong and our learned friends are otherwise right to say the sole determinative question is one of did he consider it, they fail to prove that it is – what the result would have been had there been consideration.  I hope that assists, your Honour.

KIEFEL CJ:   Yes, thank you, Mr Doyle.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, at the heart of all the issues, except perhaps that last one, is the question of appellable error by the Court of Appeal in their adherence to and correctness in following the established limits and duties of appellate review in an appeal by way of rehearing.  There is nothing between the parties as to those orthodox requirements and, in our submission, one of the…..points of emphasis in relation to that question of principle concerning appellate method in an appeal by way of rehearing comes down to the criticisms my learned friend has elaborated concerning the way in which the Court of Appeal approached, in particular, questions of expert evidence.

There is the distinct and also important question, of course, of an approach to Mr Peters’ evidence with which we will be starting but, in summary, your Honours, in following the sequence that we have noted in our outline for address, the purposes of the argument are as follows.

First…..your Honours, that a guideline intended to be comprehensive in its own words that drew to attention a case of perceived imminent arrest is a guideline that of its very nature and expressly deals with things which are urgent in terms of time, urgent because in a very short time there may be death, which is what “imminent arrest” was understood in this case to mean and, in any event, is understood to mean by the experts and, second, because the time of intervention to avoid that outcome obviously depends upon what I am going to call pharmacology.  All of that was contained within the comprehensive guidelines. 

The position which was confronting Mr Peters and his colleagues on the night is then at the heart of the question concerning the proper response.  There is nothing between the parties concerning what I will call the Rogers v Whitaker point, that is, it is not, in this Court and it was not in the Court of Appeal, persisted as the only way in which we could succeed that the case management guidelines supplanted the common law’s concern with establishing what the reasonable standard of care was.

But neither was it the case for the State that their manual was…..a state of affairs as to misleading the provide guidelines for case management for Ms Masson.  The, if I may call it this respectfully - the instability between an implicit but unvoiced criticism of the manual by the State itself and the protestation that Mr Peters, in fact, observed the manual, continues right up until the end of my learned friend’s address today. 

In our submission, the notion that there is no duty of care owed by a man in Mr Peters’ position to give effect to the guidelines with their non‑mandatory aspects as a matter of a common law duty of care is surprising and difficult to make out on the facts.  There was not launched any direct or overt attack on the competence, that is, the achievement of a reasonable standard of care, which would be administered by a person who, in Mr Peters’ position did, in fact, follow the manual properly. 

It is for those reasons that this Court is, in fact, not in this case presented with what might be called a marginal or extreme case which on the facts shows a discrepancy between that which is vitally, perhaps even universally accepted and that which the court by reference say to expert evidence decides is necessary in order to achieve a reasonable standard of care.  This is not, then, like the case where everyone in Hong Kong carried out conveyancing in a particular way, and the court, as a matter of common law, was perfectly entitled to find that everybody, therefore, was negligent. 

Your Honours, the next thing which, in our submission, is an endpoint for all of our arguments is to understand that this is not a case where on anyone’s factual position, let alone tested in cross‑examination, was Mr Peters a man whose mental processes, that is, consideration, included consideration of what my friend fairly called schools of thought.  There may be a difference between us as to whether there are more than two schools of thought, but that does not need to be gone into.

What is clear is that neither the State, in its construction of the manual, nor the State in its defence of Mr Peters’ conduct, undertook to show that Mr Peters in fact engaged in the kind of consideration that the trial judge, and then the Court of Appeal, had pressed upon it through at the competing testimony of the expert.  That is why we have said that the pivotal question is indeed whether or not Mr Peters considered adrenaline as, on any view of it, the guidelines required him to do. 

The next point we would make is that after dealing with what in fact the facts as correctly found by the Court of Appeal demonstrate about Mr Peters’ consideration, one can put to one side the notion that within the manual there is found consideration of adrenaline in cases of imminent arrest.

That is the bookend, if you like, to the matter of adrenaline – salbutamol, I should say, in case of imminent arrest - that is the bookend to the fact that it is adrenaline which is required to be considered in such cases.  The manual in the drug data, to which my learned friend appropriately goes in order to point out the so‑called feared side effects of adrenaline, also points out in a familiar pharmacological trade‑off sense, its advantages concerning speed of onset. 

That does not seem to have been at the centre of any debate in the courts below, not least because it is very obvious and was treated by everyone as obvious.  Adrenaline has an advantage which may be accompanied by disadvantages, just as salbutamol has advantages which may be accompanied by disadvantages. 

The question of causation with which our learned friend’s argument concludes is aimed at by the argument that we wish to present in this fashion.  Properly understood, the process of reasoning that one can see in the appropriate findings by the Court of Appeal about Mr Peters’ conduct on the night shows that there was a process of what might be called checklist elimination of what he called an option. 

When one hypothesises a lack of what we say the Court of Appeal correctly identified as his negligence in misunderstanding the way the manual guided conduct in relation to imminent arrest cases one, of course, eliminates that misunderstanding on his part.  When one eliminates that misunderstanding on his part, everything which he explained led him to elect against adrenaline is completely removed from his mental processes. 

The inference is irresistible.  There is no sensible alternative that does not involve recommission of negligence on those facts.  They are very clear.  He has described what it was that induced him not to apply the one and only drug which was in the manual expressed by its guidance as what ought to be considered in cases of imminent arrest.

One can put to one side the matter which has been a couple of times mentioned by our learned friend by an accurate quotation from the general parts by way of introduction of the manual, namely, intuition.  This is not a case where that produces any independent, let alone factually explored means of justifying not using adrenaline in the face of this imminent arrest.

Your Honours, turning then to the sequence of argument, as we have outlined it, the points that we draw to attention in our paragraphs 1 to 3, seek to encapsulate what on any view of it was in this very sad case the urgent and emergency position with which Mr Peters was confronted.  It is to be understood of course that the relevant common law standard is that which applies to persons in such fraught and difficult situations. 

As is shown by unchallenged findings of the trial judge, to which we have drawn attention in his Honour’s paragraph [10], Ms Masson was near to the point of dying when first encountered by the professional.  That, on any view of it, as is plainly now accepted, unlike earlier stages in the forensic battle, that on any view of it placed her in the category of imminent arrest. 

The almost non‑existent respiratory rate to which we refer that your Honours will see in the passages cited is surely enough even for a lay person to indicate that the extremis for once is being used in a literally appropriate fashion.

What we put in paragraph 2 requires consideration in particular of the way in which the Court of Appeal dealt with trial findings, but at the outset if we could remind your Honours of the way in which in the core appeal book at page 9 the matter is introduced.  At paragraph [14] the dosage – a high dosage of salbutamol was progressively administered and your Honours are familiar with the timing of the 20 or so minutes which turned out on his Honour’s causation finding to be the critical lapse of time. 

In paragraph [15] there is a reference to a matter that our learned friend has already sufficiently shown to your Honours for present purposes.  One need not dwell on it at the moment.  Over on page 11 one sees, again in paragraph [21], that the administration of the salbutamol was persisted in at intervals for the 21 minutes.  Then, finally, as your Honours know, there was the administration of adrenaline which both saved her life, and on the findings unchallenged in this Court and, indeed, in the Court of Appeal, was too late in order to prevent the damage for which the agreed damages were assessed. 

Could I take your Honours then forward in the Court of Appeal’s reasons to passages with which your Honours are familiar, not only because our learned friend has been to them so recently, but you will appreciate that this is the heart of the matter so far as we are concerned.  It picks up at paragraph [141] on page 41, and in our submission, has - this is the basis of the approach by the trial judge that the Court of Appeal is referring to in the passages to which I am about to come. 

The trial judge starts in paragraph [141], all in the course of considering whether Mr Peters had considered adrenaline by recognising that which, in our submission, should not have been resisted by his Honour, namely, that there are aspects of Mr Peters’ evidence purporting a view that he believed the guideline prevented him, and I interpolate that your Honours will recall the repeated use, not just in writing but in oral testimony by Mr Peters of the notion of prohibition.

In that paragraph [141], the notion is introduced of the opposite of two of the possible indicators of what to do in the case of imminent arrest, namely, tachycardic rather than bradycardic and hypotension rather than no pulse or very hypotensive by his Honour and, in our submission, that produces the error that the Court of Appeal has appropriately recognised in the trial judge’s reasons.  Your Honours, is that a convenient time?

KIEFEL CJ:   Yes, thank you, Mr Walker.  We will adjourn until 2.15.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  Your Honours, in picking up on the proposition that Mr Peters failed to consider the adrenaline, may I simply remind you of something necessary in order to understand the factual controversy about the response to the manual.  Using the large reproduction of the relevant page from the manual at core appeal book 69 in the Court of Appeal’s reasons, could I remind you that in the diamond within the presentation under the heading of “Imminent Arrest” there are what are now called forward slashes between Glasgow Coma Score less than 12, the first item; bradycardia, the second item; and absent pulses, the third item.  That was the subject of a finding which is not controversial by his Honour at first instance - page 35 of the core appeal book at paragraph [114].

That appears to be a matter which was persisted in at trial, namely that it did not require to be read as alternatives, that is, not all necessary, and one can see how that has affected the approach taken by Mr Peters.  If I may simply for a moment reverse or combine our paragraphs 7 and 8 in our outline in order to put the trial judge first, I had taken your Honours - core appeal book 41 - to paragraph [140]. 

When his Honour said that those views were “not mutually exclusive”, the fact is that it would appear from the evidence to which I am about to take your Honours to remind you from the trial judge himself that there has been an expectation that there has to be the presence of all of those three rather than one of those three, contrary to what his Honour had himself earlier found in paragraph [114] was plainly required.

In paragraph [141] there is reference made to what I think our learned friend referred to this morning as being what in fact was the conduct of Mr Peters and what inference should be drawn from it.  There is no doubt but that Mr Peters proceeded to do things which he thought was a response to the state of affairs – we would characterise it as imminent arrest – with which he was confronted. 

We can put to one side now the forensic history about whether or not it was a state of imminent arrest.  That is now accepted.  But that does not mean that everything in the diagram opposite that first diamond was being done.  The 100 per cent oxygen and the assisted ventilation certainly – that does not mean that there was a consideration of adrenaline, let alone that there was transport without delay.

Mr Peters explains it really quite clearly.  In paragraph [142] the trial judge, quoting from the statements meets the way in which Mr Peters describes the matter – that is, from the manual:

The management is determined having regard for the patient’s clinical presentation and vital sign recordings and may include –

and the only ones that follow are the treatment that I have referred to:

high concentration oxygen therapy, intravenous Adrenaline –

and then follow some important words:

if bradycardic (pulse rate less than 60 beats per minute) or absent pulses –

That is a misreading, in accordance with his Honour’s own approach at paragraph [114], of what is meant by the diagram in the manual, a matter which is now, as we understand it in this Court, common ground that the GCS<12 was deficient in case of imminent arrest to call up the consideration of adrenaline.  There did not need to be bradycardia or absent pulses, let alone was there contraindication if there was the opposite of bradycardia, namely tachycardia, or the opposite of absent pulses, namely hypertension.

In paragraph [142], at the top of page 42 of the core appeal book, the reasoning could not be plainer, and it does not depend upon any inappropriate use of the technical expression “protocol”.  This was not evidence that was ever said either to be mistaken or to be conceptually all right.  What the witness said, and this is presented in the defendant’s case, what the witness said was that he took into account, in view of, he says, the fact of tachycardia, the fact of peripheral pulse being palpable:

intravenous Adrenaline was not permitted ‑

and then to use an expression my learned friend emphasised this morning, the witness used a fancy word for “choosing”:

I therefore elected to administer intravenous Salbutamol.

It is clear, in other words, that it was a misunderstanding of the significance of bradycardia/absent pulses following after GCS<12 in the manual, a matter which is now accepted to have been a misinterpretation but produces the form of so‑called election.

KIEFEL CJ:   Mr Walker, does the reference to the fancy word “elected” tend to support the trial judge’s view that someone else had a hand in the words, probably lawyers - the words in the statement and for that reason one should not take them quite so literally?

MR WALKER:   I would certainly say that it is an everyday occurrence in the courts that written statements of evidence in‑chief are likely to have been settled by people who may have different levels of diction from the witnesses who eventually adopt and sign those statements and that it would be not unreasonable for your Honours so to proceed.  However, it is only a fancy word, it means ‑ its semantic meaning is exactly the same ‑ ‑ ‑

KIEFEL CJ:   But it is not just that word, is it?  It is words like “protocol” which are incorrect – which is incorrect to describe the manual and words like “permitted” which might have not been properly understood by the lawyer doing the statement.  I mean, it depends a bit upon the extent to which Mr Peters was careful enough to see that his words were conveyed by the statement.  You have to take the statement with his discussion later in evidence, do you not?

MR WALKER:   Very much so, and I am going to draw that to attention very soon.  Can I say, there is absolutely nothing in the transcript of Mr Peters’ evidence to suggest that the word “permitted” was difficult for him and neither is there any evidence anywhere to suggest that somebody who drew his statement and engaged in some misinterpretation that could be explored at trial about what was or what was not submitted, so to speak, under guidelines.

It is clear that Mr Peters, himself, uses the notion ‑ his words, not somebody else’s ‑ of prohibition by the manual.  It may well be that that shows ‑ and this is a reason, of course, to show how he came to perform less than the reasonable standard of care required but he chose to adopt a categorical approach to the non‑presence of bradycardia and the non‑presence of absent pulses as meaning that he could not – did not need to, was not required, in the words of his adopted statement to ‑ ‑ ‑

KIEFEL CJ:   Mr Walker, in his evidence, say, looking at paragraph [145] on page 42 and 43, it is reasonably evident that when he uses words such as “prohibited”, he is talking about because of the presentation of conditions.  So, is he not conveying that he is understanding the manual in light of the conditions which Ms Masson was presenting at the time?

MR WALKER:   Yes, because of the lack of bradycardia and the lack of hypotensiveness, that is, the lack of absent pulse.  What, in the Court of Appeal was noted to be, as it were, presentation with the opposite of those conditions, namely, tachycardia and hypertension and that there was a misreading, a misinterpretation which his Honour correctly sees suggested by the evidence in the last paragraph of his Honour’s, paragraph [143] on core appeal book 32:

by the time of the statement Mr Peters was favouring an interpretation of the first diamond of the flowchart to the effect that the presence of indicia opposite to any of those listed in the diamond precluded the following of the arrow to the right of the diamond.

His Honour has already held that that could only come from a misreading given his Honour’s paragraph [114].  Then his Honour proceeds to consider that – none of this has to do with what I might call matters about which a trial judge enjoys so‑called advantage.  Having correctly, in our submission, discerned how Mr Peters on his own say‑so in his adopted statement…..proceeding in paragraph [144], his Honour referred to a fact that we understand our friends to be relying upon as well, namely:

in light of the fact some of the initial treatment was the very treatment contemplated by the arrow to the right of the first diamond.

We want to turn that on its head using exactly the same facts.  On any view, adrenaline was not used.  On any view, the consideration of salbutamol is not called up in relation to the presentation that his Honour is considering Mr Peters had perceived.  It follows then that it is the difference because after all the point of arrow…..namely a failure to consider adrenaline which shows that what was being done was neither the first nor the second.  There was the urgency which required the ventilation appropriate to the imminent arrest diamond but there was salbutamol which was considered in relation to something far less critical, namely, severe asthma.  In paragraph [144] his Honour says correctly, with respect, that the:

guideline does not proscribe, in the sense of permitting or precluding.

And one might add, prohibiting:

it is provided to guide and assist –

but it will do so only obviously if it has been properly understood, and the consideration of adrenaline for its pharmacological merits, risks being factors against and benefits being factors in favour, will obviously be prevented, that is, not engaged in the best interests of the patient if a person in Mr Peters’ position considers that the choice has been made against adrenaline as soon as the opposite of bradycardia and absent pulse can be seen.  His Honour has already held that that was an error of approach and one can see from the evidence quoted in paragraph [145] that when he came to use his own words in the witness box that is what Mr Peters cleaved to.  Thus, in the passage emphasised by the trial judge at the foot of page 42, he:

was prohibited . . . with a patient’s vital signs as [they] were presenting.

Now, those vital signs are a reference to that which adds up to bradycardia and low – and very infrequent, though not absent, pulse.  He does not have any difficulty with accepting back his own words, “prohibited”.  He accepts that it was his belief that he was prohibited because of the guidelines.

BELL J:   A little further down in that passage in paragraph [145] he says that tachycardia and hypertension in light of what he describes as all the components of the assessment tool bore on his determination.  Now, do you accept that by the reference to “all the components of the assessment tool”, one would understand he is taking into account the drug data sheet advice concerning adrenaline?

MR WALKER:   It is not explored, as has already been noted, but what your Honour raises with me is, with great respect, a not unreasonable approach to take, bearing in mind that it was scarcely arcane material that the Court of Appeal was quoting at core appeal book 72 in paragraphs [28], [29] and [30], that is, adrenaline faster but with a cardiac effect, salbutamol having a different kind of effect would be bronchodilation, et cetera.

Those, however, were not ever explored in Mr Peters’ evidence, particularly in‑chief, so as to show any nuanced or indeed any factored consideration of the side effects of adrenaline when consideration of it was indicated by way of guidance in the case of imminent arrest.  And, of course, there is really ‑ none of the expert evidence would have suggested that at that time it would have been appropriate to reject at the outset, given the understood side effects of adrenaline, its administration in the case of imminent arrest.

BELL J:   How do you deal with Mr Doyle’s submission that, given that the appellant’s experts were all briefed with the manual, and that none of them expressing the opinions that they did regarded the risks of adrenaline for a person who was tachycardic to be outweighed by the advantage of the speed of the action of adrenaline, they simply did not ‑ Professor Brown, for example, made no reference to that.

MR WALKER:   I think this is an observation that is true on both sides of the record, your Honour.

BELL J:   That may be so, it is just then the significance that the Court of Appeal attributed to the, what might be regarded as “well‑understood” speed with which adrenaline acts.  Nonetheless, it did not seem to bear, on Professor Brown’s opinion, that the appropriate course was the course that Officer Peters adopted.

MR WALKER:   Your Honour, I am not sure that one can read his evidence as being, as it were, to any degree at all, regardless of the desirable speed of responding to a situation of imminent arrest; that would be unfair to Professor Brown.  The controversies between the experts very much came down to, given the need to act quickly, in case of imminent arrest, was it or was it not consistent with what I am going to call a reasonable state of art, acceptable state of art, to have proceeded to consider anything other than adrenaline, that was one side of the record, or to justify persisting for 20 minutes with salbutamol.

So that all of them were taking, as it were, for granted, that there had to be an immediate response.  In that sense, implicit in all of their opinions is the risk‑benefit that applied to whichever of the medications was used, namely, the need to attend to an emergency on the one hand, that is speed, and on the other hand, the possibility of killing somebody more quickly, that is with adrenaline, or permitting them to die at the end of 20 minutes, that is salbutamol.  That was the horrible choice confronted by these highly skilled paramedics.  And, in our submission, it is not really true that the expert evidence put to one side the speed of onset of desired effect, which as we know and is not controversial, differs as between adrenaline and salbutamol.

NETTLE J:   So it is controversial.  It was never put below, none of the experts was ever asked about what its effect would be or why, if it were the fact, that adrenaline were not superior for that reason.  You are now sort of elevating it to a whole new central aspect of the case that was never advanced below.

MR WALKER:   Your Honour, I think the best I can do to respond to that proposition is to remind your Honours, as I will in just a little while, of the way in which the medical controversy concerning the “go‑to quality” ‑ I am quoting from some of the evidence there ‑ the “go‑to quality” in such a case of adrenaline was presented.  But, with respect, what Justice Nettle has asked me to respond to is, with great respect, correctly premised.

There was not an exploration in either direction ‑ we of course bore the onus at trial ‑ there was not an exploration in either direction to suggest that the differential speed of onset of therapeutic outcome, which unremarkably and uncontroversially the drug data indicates, was in itself at the heart of the preference that ought to have been formed one way or the other, or perhaps the indifference that would have left the plaintiff being unable to show negligence.

But, in our submission, we do press that the evidence shows that speed of therapeutic intervention by the administration of a drug was implicit in the whole of the contest between the relevant counterposed experts, and was explicit in the way in which a deal of the material was explained.

So, for example, if one would turn back in the book to the way in which Professor Fulde responded to suggestions about the use of intravenous salbutamol, core appeal book 24 it starts, in paragraph [76] he refers to it, salbutamol, being:

used in a more stable patient –

so that is not the emergency situation of critical state of affairs, namely, imminent arrest.  And then at the end of that quoted passage:

Because she has of – had arrested and not breathing.

. . . 

salbutamol was not the drug that this lady – young lady needed, when she was cyanosed –

that is, a state of affairs and in extremis:

In other words, the oxygen was depleting through her body.  She was not moving in air into her lungs.  Right?  And salbutamol is not the agent to treat that.

That is all, pregnant with the point about the need to get speed of effect.  And then in paragraph [77] ‑ ‑ ‑

NETTLE J:   I suspect that is true and I do not think it is opposed, in a sense by Mr Doyle that there was some opinion to that effect, that adrenaline was better.  But, on the other hand, you have got Professor Brown,  Professor Boots, Dr Ramin and, to some extent, your own witness Professor Raftos, saying that the responsible thing to do is to start with salbutamol, even in a woman of this kind because of the high risk of blowing her heart up.

MR WALKER:   Yes, I draw ‑ ‑ ‑

NETTLE J:   “I have been there, I have done that; I can tell you.”

MR WALKER:   Yes.  I think one of the references your Honour has just made would be to the evidence noted by the trial judge, pages 25, 26, in paragraph [79].

NETTLE J:   So the contest is really, given that there was a lot of respectable opinion both ways, why is it the fact that a paramedic, responding in a way in which one of those bodies of respectable opinion, regardless if it is appropriate, can be held to be negligent?

MR WALKER:   That jumps me to a matter that I am very happy to deal with immediately, perhaps a bit out of order.  First of all, it is a paramedic for whose comprehensive guidance a manual is provided.  Second, in our submission, it has to be remembered, steadily, that this is not a paramedic who thought that he was in an area subject to binding – that is, controversial schools of thought.  He was not, as it were, being asked to adopt what I will crudely call a Peters’ view, as opposed to a Fulde review; nothing even remotely like that.

Rather, we know that he erroneously thought that, given the presentation tachycardic and hypertensive, there could not be the response to GCS6 and going down in a case of imminent arrest of considering adrenaline if you could not consider it because of those…..features.  It is for those reasons, in our submission, that this is a case that actually provides a concrete demonstration that it cannot be within the reasonable standard of care of a paramedic to enter into the scientific and practical, clinical and experienced controversies between medical practitioners specialising in this area.  That would be most unrealistic to adopt in a different way, a word our learned friend used ‑ ‑ ‑

KIEFEL CJ:   But that is not how it really applies, is it?  It is not that he was delving into areas of controversy.  There is nothing in his evidence which suggests that – is it not rather that the expert evidence supports what he did as a reasonable course of action?

MR WALKER:   No, that would be, as it were, the person who accidentally avoids negligence.  That is without following through the correct thought processes, nonetheless does something which does not fall short of a standard.  That is a familiar, fortunately, I imagine, an everyday occurrence upon which we all rely for our own well‑being.  That is not really this case at all because for the reasons I had to come to a little later and in more detail from the Court of Appeal’s reasons there was not at the time of this treatment anything to suggest that consideration should have been given to salbutamol rather than to adrenaline for somebody in a case of imminent arrest.  That there has later emerged a rather contrary view is well traced, with respect, both in the evidence that his Honour did make findings about at trial and in the way the Court of Appeal correctly considered that in the appeal by way of rehearing. 

The evidence does not show that there was, as it were, a holding of the ring equally in 2002 in cases of immediate, imminent arrest, I should say, calling for immediate treatment.  The evidence does not show that there was an equally respectable school of thought that regarded that as according with a reasonable standard of care.  Even at trial it was considered that the predominant view was that such a position called for adrenaline.  This was not a case where, as it were, the jury was out as between adrenaline and salbutamol in such a case at all.  It obviously was an area that in scientific terms did not lend itself to what I might call a randomised, clinical trial.  Ethical considerations alone would suggest why that must be so. 

So, the experience of the clinicians and the specialists who were called upon to give evidence was called in aid by all of them, not just masses of reported written science.  None of that, in our submission, was to the effect that salbutamol was equally indicated in such a situation, as was adrenaline in 2002.  But for a paramedic, in our submission, it would be so unrealistic to expect that he or she should ever have intruded into that area; the manual provided guidance which did not say consider adrenaline or salbutamol.  It could not yet consider adrenaline and the only reason that was given not to proceed with adrenaline was the obvious and explicit error of considering the tachycardia and hypertension excluded it, which was not ‑ ‑ ‑

BELL J:   That error ‑ I come back to this, Mr Walker ‑ to characterise it as an error in the way you do may involve some tension with Mr Peters’ evidence in the balance of the extract in paragraph [145] which if I can summarise it is that in light of all the components of the assessment tool which I understand to be the manual, the tachycardia and the hypertension were factors that he considered prohibited adrenaline and that was something that reflected his training as well as his interpretation of the guideline.  If that is so, why does it not invoke consideration of the particular caution about the use of adrenaline, a caution that one does not find in the drug data sheet respecting salbutamol?

MR WALKER:   Well, your Honour, may I unpack this notion of caution.  The caution that the causation finding really emphasises ‑ I do not say that is a legal logical answer, but it cannot be ignored ‑ the caution with salbutamol is that it would be too late to prevent the terrible damage, or perhaps even death.  If salbutamol had been persisted in, plainly enough, this lady would have died there and then.  Her death was prevented by the eventual administration of adrenaline, but too late to prevent the damage that she suffered.

So that, when one talks about caution, we are not proceeding on the basis that one puts to one side the lifesaving and injury alleviating or avoiding purpose of therapy at all.  And it is for those reasons, in our submission, that there is a real danger of adrenaline getting an entirely inappropriate stigma as what I will simply call a “dangerous drug simpliciter”.  It is, compared to salbutamol, plainly a dangerous drug, but unlike salbutamol, it had the capacity to save this lady’s life, and had it been administered earlier, to have prevented her suffering terrible brain damage.

BELL J:   It is difficult to feed in the causation finding, which reflected no factors of her history, that is, known by the Court, that were not known by the paramedics.

MR WALKER:   I do not wish to be misunderstood.  I would not feed it in.  That is what I meant by saying there is no legal or logical way that we can call that in aid in relation to liability.  I accept that.  What we do know ‑ trial of treatment, I think the doctors call it ‑ what we do know is that when the adrenaline was administered, it saved her life.  And the trial judge, understandably, found that had it been administered earlier, at the time when, contrary to his finding on liability, there would have been a breach had he found liability, had it been administered in what we will call “good time”, the damage would have been avoided.  That is why the agreed damages would flow in that event.

So it cannot be said that this was a case where, in the absence of the knowledge of the success with adrenaline in the past for this patient, it cannot be said, without him knowing this, that the paramedic had taken any of that into account.  What he had was a manual which, being used for guidance, presenting choices, required him to consider something which he proceeded not to consider on grounds that cannot be defended.  Justice Bell has asked me to consider, at line 35 on page 43, the witness’s rider:

considering all the components of the ‑ of the assessment tool.

For reasons I am about to put, that really is only capturing, again, the notion that being tachycardic and hypertensive, which referred to the opposite of two of the three possibilities in the diamond, was enough for the assessment tool to produce the outcome that the witness was explaining he had reached.  There is no exploration by anyone of whether the components of the assessment tool extend to the drug data manual, the drug data aspects of the manual.

The assessment tool we think, with respect, is the diagrammatically plotted decision tree that moves from a diamond and in the…..of this case goes by arrow to the right.  I do not say that one should leave out of account the unremarkable comparison between adrenaline and salbutamol that one finds in the manual.  As I say, the one is faster and that really purveyed the controversy conducted in hindsight concerning the events of this terrible case. 

But, in our submission, what one cannot say is that this witness ever said, “I engaged in anything like a trade‑off concerning the risks of cardiac arrest from adrenaline and therefore didn’t use it to prevent cardiac arrest”, because that is of course one way of putting the risk/benefit aspect of adrenaline.  If you do not use it, cardiac arrest will lead to death.  If you do use it, you may precipitate an earlier cardiac arrest. 

Now, that does not mean you do not use it, and that is exactly why the manual, trying to provide comprehensive guidance, says consider adrenaline in case of imminent arrest.  You have already reached the position where the choices have been narrowed.  On page 43 in the quotation set out in paragraph [145] at trial, one sees repeated this concern, all‑encompassing concern with the inappropriateness, the prohibition, the great clarity, very clearly which pathway he had to go down, where he was required to go, where he went to salbutamol rather than straight into adrenaline. 

At line 20 there is here an understanding which helps us in what I will call the subjective causation point at the end of our friend’s argument.  If you cannot be negligent in thinking that the opposite of bradycardia or the opposite of absent pulse precluded or prohibited him from using adrenaline, then it is clear he would have gone straight into adrenaline because of the GCS so much less than 12. 

But the word “considered” is being used in this passage of evidence to present adrenaline as a candidate not available for therapeutic use because of a combined factor, two observations of clinical state, presentation of the patient which the trial judge had already found was a fundamental misunderstanding of the way in which the manual was imputed to be followed.  That is why in the follow‑up questions by the cross‑examiner after questioning by the judge, starting at about line 27 on page 43, it is put this way:

because she was tachycardic said you were prohibited, you were not permitted, you were unable to administer adrenaline?

Then this paramedic uses what might be called a fancy word, correctly to convey his meaning, but incorrectly with respect to an understanding of what the reasonable standard of care, observing the choices available under the guidelines in the manual permitted.  He says:

That’s one of the parameters –

a limit to his action, and that is why, in our submission, the Court of Appeal was correct to reverse the finding that his Honour the trial judge made with respect to this part of Mr Peters’ evidence.

One sees that there is one of the parameters, then there is the other one and so you have the two - tachycardic, hypertensive, meaning she would need to be tachycardic and hypertensive – sorry, since she was tachycardic and hypertensive, and therefore that was the opposite of bradycardic and hypotensive, that is, approaching absence of pulse.  One sees the finding by his Honour at the top of page 42, or at the end of paragraph [146], in relation to that alternative hypothesis of had he not been negligent.

Now, your Honours might think that a word a couple of lines above there, “mitigated” - perhaps that should read “militated”.  In any event it is his Honour correctly finding the obvious, that Mr Peters regarded the tachycardia and hypertension as ruling out the administration of adrenaline.  That is, with respect, what cannot be upheld given the reasoning of the Court of Appeal. 

Paragraph [147] commences with a finding that the Court of Appeal addresses and reverses.  Paragraph [149], to which your attention has already been drawn, notes his Honour’s response to the way in which Mr Peters had described, including in his own words in cross‑examination, his thought process:

curious and erroneous . . . the asthma guideline prohibiting or not permitting the administration of adrenaline.

In our submission, there is very short step, laterally, between “curious and erroneous” to deem there the explanation for how a failure to achieve a reasonable standard of care had occurred.  Now, there is nothing in the evidence that your Honours have been taken to, to show that there was, by reference to the drug data material or to any of the part of material that the experts debated in their vying testimony to give any content really beyond tachycardia and hypertension to what his Honour notes at the end of [149] as being:

the administration of adrenaline was too risky ‑

That is not how Mr Peters described it.  It was not that kind of risk‑benefit balance that he was engaged in at all.  He was ‑ ‑ ‑

KEANE J:   But is it not necessarily so because he says he does not use the adrenaline because of the tachycardia and the hypertension.  How can it be - how can we understand his conduct otherwise than as an appreciation that it was too risky in the treatment of Ms Masson, given that she is presenting with tachycardia and hypertension, to administer the adrenaline and given as well that he says he acted on his training, which no doubt included his appreciation of this feature of adrenaline, that it is counter‑indicated in cases of tachycardia and hypertension?  How can we understand that sentence as being other than that?

MR WALKER:   Your Honour, I suppose I should add to the burden your Honour’s question gives me, what his Honour - I was about to draw to attention - says in paragraphs [151] and [153].  Can I attempt to address Justice Keane’s question about [149] combining as well some remarks about those paragraphs in the trial reasons. 

There was the perhaps dilemma literally presented referred to in paragraph [153].  If something was not done urgently a death would follow by reason of cardiac arrest following respiratory arrest.  That was in a way that nobody has ever attacked as negligent on the part of Queensland - that was what required by way of guidance, consideration of adrenaline. 

It cannot be the case that one carefully says in a manual for the guidance of paramedics consider adrenaline in such a situation if it follows from the nature of adrenaline that it would be negligent to administer it.  It is, for all the reasons Justice Keane has pointed out and to which Justice Bell perhaps was making reference clear that everybody regarded that this was elementary, in a sense, adrenaline as carrying a risk of the kind that has been talked about. Like salbutamol it can produce tachycardia.  Tachycardia can - it does not always, mercifully - precede cardiac arrest, as can tachyarrythmia.  Salbutamol and adrenaline both have side effects in that direction. 

I am not suggesting they are the same in that regard, far from it.  They operate differently, as your Honours know.  But it does amount to this, that the manual, there for the guidance in urgent situations of paramedics, said imminent arrest properly produces consideration of adrenaline.  It did not say consider salbutamol.  But there is a choice being taken there which, in our submission, is a choice that might conceal controversy at the level of medical specialists but for the sake of rapid, extremely urgent decision‑making on the spot in the face of impending death that required the consideration of adrenaline. 

Once one has the consideration of adrenaline on the merits one cannot, with respect, truly say that it was careful to misinterpret the manual in the manner that his Honour has identified starting in his Honour’s paragraph [114].  It is for those reasons, in our submission, a retrospect not supported by the construction of the manual itself or the way Mr Peters described what he was doing to say that anybody tachycardic facing immediate arrest should not have adrenaline considered. 

It is for those reasons, in our submission, that there was not an explanation by Mr Peters that places him, as it were, in the stream of a controversy that could be conducted a decade later between specialists.

BELL J:   Mr Walker, I think it is accepted that the manual was not to be read prescriptively, and the manual recognises that it is not possible to set out in diagrammatic form every contingency that may bear on the advice that has been given.  When one looks to the evidence of the paramedic upon which your side relied, in the supplementary book of further materials filed by the appellant, at page 49 we find Mr Kenneally expressing the view that he favoured adrenaline, albeit he acknowledged that there were choices as between salbutamol and adrenaline and then, at about line 19, he refers to the fact that this patient’s heart rate and blood pressure were higher than he would expect to find.  He agrees with that proposition. 

But one inference would be that the paramedic here was faced with a choice that was outside the ordinary circumstances of imminent arrest because of the high heart rate and high blood pressure and that is a matter - that is a particular circumstance that the flow chart does not address, other than by indicating that the paramedic has to take into account all considerations.

MR WALKER:   I think the short answer is yes.  A slightly longer response to your Honours is that that passage in Mr Kenneally’s evidence and appellant’s further material 49, is of course a mixture of responses concerning the time of the event and current state of art when the witness was giving evidence – I do not mean it is a confusion of that, but there are indications when he is talking about one and when he is talking about the other but that consistently, there emerges from that passage of evidence the significant assistance of adrenaline to supplement the body’s own resort to that hormone in order to save the person from death. 

In other words, that one does not see any simplistic equation of a kind that Mr Peters never engaged in by way of any estimation in his evidence and should not be held to have engaged in on the night between tachycardia and adrenaline in such a way as to say if somebody is tachycardic, you must not give them adrenaline.

To the contrary, this is evidence suggesting if somebody is in a state of imminent arrest, displaying tachycardia, not surprisingly, as one of the two opposite ways in which that might be indicated, then adrenaline to save will almost certainly reduce that heartbeat, which is…..to on that page.

GORDON J:   The problem about that, Mr Walker, though, is what follows on the next page, page 50, when he is asked directly about the position in 2002 of someone in Mr Peters’ position and he accepted that qualification that it was reasonable, it was probable that most people would have done what he did.

MR WALKER:   Your Honour, I may not have ‑ there is certainly:

many people would have chosen salbutamol ‑

at line 12 and there is a colourful description of outmoded approaches to the administration of adrenaline at line 33 or thereabouts.  But this was not a witness whose evidence as a whole or in any particular part amounted to saying that adrenaline was not the appropriate drug to have administered at that time.  One can see the trial judge dealing with this, starting at page 27 in the trial judge’s paragraph [87], to which I am going to take your Honours.

This was not a case that was vindicated, as it were, turning the face against adrenaline.  Sure, we have the onus, obviously, of proving that it fell below a reasonable standard not to have considered adrenaline and, therefore, to have persisted too long with salbutamol.  We know it was too long with the wisdom of hindsight by reference to matters not known to those - to Mr Peters, accused of negligence on the night, from the causation finding.

NETTLE J:   But why did he persist too long?  Her condition improved and within a minute of it going downhill, he responded with adrenaline.

MR WALKER:   The GCS did not improve, your Honour, and that is the thing that, as her in danger of dying, as in the Court of Appeal it was made clear, was accepted.  This was not improvement away from the threshold of death and one, in our submission, needs to recall that at the first of the…..sufficient indications for the consideration of adrenaline is a GCS less than 12, and this was a GCS that varied between 6 and 3.  There was no improvement in that what might be called “combined” or “combination” vital sign.

BELL J:   To an intensive paramedic observing that the consequent - that the result of the administration of the salbutamol was that her colour returned and there was improvement in her breathing rate, were those not factors that would at least justify a reasonably competent intensive care paramedic that salbutamol was having a beneficial effect?

MR WALKER:   Your Honours, the passage I have in mind is to be found in the Court of Appeal’s survey of the experts’ evidence, page 84, paragraph [86], where there is a reference at line 39 to:

the evidence of Mr Peters that there was an improvement in the patient’s respiratory rate and what could be –

and that is the auscultation through the stethoscope and Justice McMurdo says:

In the evidence of Mr Peters to which the judge then referred, it was said that there was an indication of an improvement in air movement.  But that fact, of itself, did not prove an error in the opinion of Associate Professor Raftos, who said that the relevant signs (apart from the change in the skin colour) –

which is a diffusion matter:

were neutral.  In particular, it can be seen . . . that the GCS remained at 6 . . . when it dropped further (to 3).

So that this is not a case where one can see that there was vindication of persistence with salbutamol by an improvement in the state of the patient with respect to what I will call imminent arrest, to which the GCS speaks most powerfully.  One sees a similar approach considered by his Honour on page 84 with respect to Associate Professor Ramin in paragraph [84], a witness called on the other side:

apart from the effect of reducing the cyanosis, the salbutamol had done nothing from the point of view of the patient’s vital signs and that more aggressive therapy was then required.

Now, in our submission, it is not least because Mr Peters did not engage in what I will call this nuanced retrospective reconstruction approach at the time - the poor man was faced with an emergency.  It can be seen that he persisted with salbutamol because he understood, to use his own language, that adrenaline was prohibited, alas, until it was only just in time to prevent death but too late to prevent damage and that is what this case comes down to, that 20 minutes or so.

Your Honours, I have sufficiently covered, I think, what I wanted to draw to attention concerning the reason of Mr Peters - was given the references at the end of our paragraph 7 in our outline.  In particular, can I remind your Honours of what you had already seen in the passage starting on page 80 in the reasons of Justice McMurdo in paragraph [61].  Your Honours have been taken to it in detail already.  In particular, I have been addressing in accordance with what we urge is the sound reasoning in paragraph [66] of his Honour:

But Mr Peters did not say that he was applying that body of opinion; his evidence was that the course he took was prescribed by the CPM –

perhaps in contrast to that which would be regarded as proscribed by the CPM. 

Now, your Honours heard today a kind of impeachment of the liability of the appellant’s own witness and the person alleged to have been negligent rendering the appellant liable vicariously, namely, Mr Peters.  In our submission, and not because of the pleading, though it may have historically been explained by a pleading, in my submission, without any attempt at trial to invite, as it were, a revisiting of any part of evidence written or spoken so as to engage in a weighing up of that self‑interested reliability, that should be rejected.  It was not an approach taken in the Court of Appeal to have said that Mr Peters had given evidence which could not be accepted.  That is an approach taken by the appellant – by the respondent in that court.

Could I then remind your Honours of the approach taken, starting at page 97 and going to the end of the reasons in the Court of Appeal – you can read the bit – displaying an entirely orthodox and correct approach in an appeal by way of rehearing.  Under the heading “Did the treatment conform with the CPM?” there are passages that I need not read to your Honours - you are familiar with them. 

We lay emphasis on the last sentence of paragraph [151], for reasons to which I have already drawn attention, as well as to the explanation of the noteworthy fact that salbutamol was being used in such a way as to support the proposition that imminent arrest was indeed understood to be the position that was being confronted.  The manual, however, had not suggested any such consideration at all and that is what their Honours point out in paragraph [153].

NETTLE J:   Does not the diagram itself suggest that salbutamol would be the alternative to adrenaline, it having considered there were symptoms which were counter‑indicated?

MR WALKER:   I think the short answer to that ‑ ‑ ‑

NETTLE J:   Inasmuch as below the right‑hand box adjacent to…..consider salbutamol and if no better go back to considering adrenaline?

MR WALKER:   I think the short answer is yes, your Honour.  Could I explain that?  It is true there are three drugs which are referred to for the guidance of the officers, two of them to be considered, and in the least critical case one to be administered.  It is also true that there is the relation via the curved arrow marked “If no better” between what I am going to call the graded cases of criticality.  That does not mean, however, that that which is found in the second most grave situation, that is, severe asthma, a consideration of salbutamol, intravenous and nebulised, that does not mean that that should be understood as what might be called a clinical alternative recommended by the manual for consideration in the case of imminent arrest.  It does mean ‑ ‑ ‑

NETTLE J:   That is not…..  If one considers adrenaline and rejects it immediately because of counter‑indications, the result of the blood pressure and tachycardia, why would you not pick the alternative which does not suffer from those defects?

MR WALKER:   Your Honour, I was about to say the manual does not say that but there being only three drugs and nobody suggesting that hydrocortisone is what we are talking about in respect of imminent arrest, I entirely accept that on the basis if you do not use adrenaline you should still be using something, and bronchodilation is at least a primary if not the only benefit to be achieved, then of course salbutamol, including intravenously not just nebulised, is obvious and I think is common ground among all the experts even when they are disagreeing with each other in this record. 

To that extent, yes, I accept what Justice Nettle has put to me but that is not what the manual says.  If the manual, having effect said, look there is a pair here that you should be equally weighing up, bearing in mind what are established in general terms to be pros and cons of each of those pairs and the drug data tells you what is generally understood to be pros and cons, not applicable to a particular case but generally speaking. 

As I say, the consideration of adrenaline could not possibly have been a proper, let alone careful entry in the manual if adrenaline was a priori to be rejected because it might cause cardiac arrest in the worst case.  It has been here required to be considered in order to avoid just that.  But for those reasons, in our submission, that though with great respect if one were proceeding particularly as a clinician but even as a paramedic without this manual, then obviously there might have been a paired or ranked consideration of adrenaline salbutamol along these lines.  I would like to use adrenaline because it is likely to be more effective but we all know it has feared consequences. 

Then, with whatever reasoning, not available in this case because Mr Peters did not have the material to make this judgment, if there were what are called discrete or peculiar characteristics for this patient, perhaps then one might imagine a response that says but I weigh up that advantage of adrenaline is outweighed by its risks and, therefore, I go to what is left to me in my armoury,  not likely to be as effective but likely to present less danger of that being, if you like, too effective, shocking the heart to death rather than shocking the heart to action and achieving bronchodilation and by a different mechanism of operation. 

Now, your Honours, I accept that that in another case might have been a matter explored in evidence.  It was not explored in evidence in this case as being raised from the manual.  Nobody is suggesting that the manual was one that required consideration of salbutamol upon imminent arrest if you did not have bradycardia and absent pulses.

His Honour instead properly found that it was misleading himself for Mr Peters to have found that because there was the opposite of bradycardia and because there was the opposite of absent pulses, therefore there could not be a response to GCS6 of considering adrenaline.  I think that is what I want to say in response to what Justice Nettle has raised with me.

That is why, as your Honours have already noted during my friend’s address, the combination of paragraphs [33] and particularly [162] of the Court of Appeal’s reasons is, in our submission, entirely proper as an approach in an appeal by way of rehearing.  It is not contested ‑ there is not a Suttor v Gundowda point.  There was not below, there is not here.  It is not contested that adrenaline is a drug that can achieve fast and effective dilation.  It is not contested that its speed of operation is in all likelihood going to be faster than salbutamol and it is not contested that the situation at hand was one of imminent arrest.  That is why we started as we did and I do not want to repeat it further. 

Then paragraph [163], in our submission, raises as a matter of reasoning, last sentence, exactly what in our submission the survey, the very careful and detailed survey of the expert evidence by Justice McMurdo permits as a conclusion.  But we do not have here a body of medical opinion applicable as at the date in question that it should not be used in a case such as this. 

Then we go on in a way that the last sentence of paragraph [163] might be thought, in both parties’ addresses, to be going into a hypothetical area which may not need to be addressed by the Court at all.  His Honour, and therefore their Honours, go on to say, had there been such a body:

had Mr Peters been aware of it, and followed that opinion, where adrenaline was the indicated drug according to the CPM, that would have involved a failure to take reasonable care.

That is why, as I say, this is a case that might have, had the facts been very different, raised a question as to whether a paramedic required, as part of his employment, to observe the manual where a manual requires consideration of adrenaline, to say I will not consider it because it is contraindicated not by reference to its risks and benefits but because there is a failure to achieve two of the other three self‑sufficient possible indicators for the consideration of adrenaline. 

Your Honours have seen, in our submission, it is correct and lends weight to his Honour’s reasoning in the Court of Appeal, the way in which, in paragraphs [157] to [159] on page 98 of the reasons, a possibility is raised in order to test the reasoning, namely, if the manual was ambiguous why would one hold Mr Peters negligent?  If that was ever possible as an approach, it has been excluded by the way in which the parties, in particular, the State, have run the matter.  It is too late, with respect, for there to be any revisiting of that by way of a further discrediting by the State of what it had put together by way of a manual to provide comprehensive guidance to its paramedic officers.

BELL J:   Mr Walker, we were taken by Mr Doyle to the expert evidence to support the primary judge’s finding of the existence of a responsible body of opinion in the medical profession in 2002 supporting the administration of salbutamol to a patient with high heart rate and blood pressure.  The Court of Appeal said there was not a basis for that finding.  Are there particular matters that you are going to take us to in the evidence to explain the finding of the Court of Appeal at [164]?

MR WALKER:   Yes, there are.  What I would like to do, may it please your Honours, is to highlight the way in which in this appeal by way of rehearing before the Court of Appeal, the reasons of Justice McMurdo deal with just that question.  That is, the matter in particular which I want to pick up in our outline – it is a combination, really, of the matters in paragraph 11, and following, and paragraph 19.  If I can compress, bearing in mind, the course of events to which Justice Bell has referred?  It starts, of course, on page 81, by his Honour noting what he called:

a marked division of opinion –

It is about a matter which goes to the heart of the choice to be made, at least in the abstract, namely:

whether salbutamol was as effective as adrenaline . . . and whether the risk of adverse side effects from adrenaline was unacceptably high.

That is an accurate framing of the division of opinion.  There is a very careful, in our submission, both respectful and comprehensive summary and highlighting by his Honour in what then follows, witness by witness, with respect to that critical difference. 

The position of Professor Fulde was clear – I need not dwell on it.  It involved, by what seems to have been a highly elaborate course of evidence pre‑trial, a consideration of interim reports.  Many of those issues now fall by the side.  One sees, bearing in mind the strictures that my friend correctly noted applied to an appeal by way of rehearing - one sees, not for the only time, at the foot of paragraph [70], a reference to Justice McMurdo taking into account what must have been something of the nature of an impression, at least to a degree, formed by the trial judge with respect to some of these witnesses, favourable in that case - in this case, to Professor Fulde. 

The position of difference between Professor Fulde, Professor Brown and Professor Ramin culminated in a preference at trial, which was upheld on appeal, for Ms Masson having been at risk of imminent cardiac arrest.  The drug data sheet is noted as having been referred to by Professor Fulde in paragraph [73] and that is not in terms of timing.  Perhaps that was being treated as elementary and obvious.  That seems to have followed from paragraph [74] where there is a paraphrase of cross‑examination using a well‑known cliché:

the drug of choice for a case of a patient at risk of death ‑

and that does not describe the human condition, that means an imminent case of threatened death.  Evidence was there given, capable of being accepted in the absence of any reason for the trial judge to have doubted Professor Fulde on this point, none given - evidence is there given, capable of being accepted by the Court of Appeal in an appeal by way of rehearing, in itself indicating the appropriateness of adrenaline.

BELL J:   May I just raise this with you?  I am conscious of the significance that this is an appeal by way of rehearing, but at paragraph [164] the Court of Appeal finds there was no evidence - I am sorry, the Court of Appeal says the finding was not supported by the evidence.

MR WALKER:   Yes.

BELL J:   That is different to the Court of Appeal taking the view that it prefers evidence of one expert over another.  One does have Professor Brown, and I note at paragraph [119] in the Court of Appeal’s summary, that Professor Brown, in oral evidence, accepted that:

Ms Masson was . . . within the first diamond in the flowchart.

MR WALKER:   Yes.

BELL J:   But as I understand it, Professor Brown adhered to the view that salbutamol was appropriate, having regard to her high blood pressure and high heart rate, and the drug to be given in preference to adrenaline.  If that is right, then it is difficult to see that there was no evidence to the ‑ ‑ ‑

MR WALKER:   Your Honour, if I may, I want to make it clear I am not going to shoulder that burden.  An appeal by way of rehearing does not proceed by way of saying it must fail unless you can show there was no evidence for the finding oppositely at trial.  That is fundamentally not true of an appeal by way of rehearing.  I must say we read the expression “not supported by the evidence” in paragraph [164] as not meaning there was no evidence to that effect.  After all, his Honour has just painstakingly, with respect, reviewed evidence drawing explicitly to attention where there exactly was evidence of that kind, namely, in support of the trial judge’s finding.

BELL J:   There was quite a deal of such evidence, to which we were referred by Mr Doyle, so that it is not – what is suggested is that the Court of Appeal may have misconstrued the primary judge’s findings in relation to the existence of a body of opinion in 2002 respecting the administration of salbutamol.  What I am raising with you, Mr Walker, is understanding the approach that the Court of Appeal took, accepting it was open to come to a conclusion on expert evidence that differed from that of the primary judge, but to understand the basis on which their Honours did so.

MR WALKER:   I entirely accept that that is key, with respect.  In an appeal by way of rehearing there is nothing in common with the former strictures on…..jury verdicts and appeal.  It is an appeal by way of rehearing, subject to proper precaution and respect being observed in relation to the so‑called advantage of the trial judge which does not play a role, in our submission, in this case for the reasons that Justice McMurdo has carefully and thoroughly pointed out. 

If anything, there are commentaries by the trial judge redolent of impressions formed from oral testimony which are called in aid, such as with respect to Professor Brown to which your Honours will have seen reference, a rather striking disapproval of aspects – I stress aspects – of his presentation.  That is why in an appeal by way of rehearing where one witness says, “I think X is the better view” – and these are experts – and another witness says, “I think not X is the better view”, then it is just as much a choice in the Court of Appeal as it was at trial as to what the evidence supports, taken as a whole. 

What Justice McMurdo has done, culminating in the expression in paragraph [164] is, upon reviewing the material to prefer – and that is the proper judicial stance, which side do I prefer, bearing in mind onus, in this case the persuasive burden to show error at trial - and he preferred for reasons fully explained and cogent in themselves the expert opinion of those that supported our case. 

It would be an error in this Court to detect that his Honour and his Honour’s colleagues have overstepped the mark in an appeal by way of rehearing because on any view of it there was…..  Of course there was.  That was what had been tried at first instance and what was reviewed in an orthodox and thoroughgoing fashion in the appeal by way of rehearing. 

It is whether or not there was error in that review by way of rehearing on the merits of that reassessment that should be the focus in this Court.  There should not be a distraction by asking but was there any evidence that supported the view that the trial judge preferred?  The short answer is, yes, of course there was, and Justice McMurdo very carefully and respectfully draws it to attention and deals with it in a way which accords full weight to the cogency, a relative greater or lesser of the material of those who gave opposed or radically different views.

BELL J:   Then, when one goes to the next paragraph, paragraph [165], the Court of Appeal says that none of the experts said – they gave their evidence respecting the effectiveness of salbutamol:

upon the premise that adrenaline was the superior drug for the treatment of an asthmatic at immediate risk of cardiac failure and death, that the risk from using an inferior drug was outweighed by the risk of side effects from the adrenaline.

Does that fit with Professor Brown’s evidence?

MR WALKER:   Yes, very much so.  Professor Brown does not say this poor lady should never have got adrenaline.

BELL J:   Yes, I appreciate that but ‑ ‑ ‑

MR WALKER:   That is very important.  It is common ground that but for adrenaline she would have died, but it is also surely common ground that implicit and I think explicit in the discussion of the material by Justice McMurdo of the experts, that this was a question of staging, hence, the reference by some of them to – they would start with salbutamol, one said but I would follow with adrenaline rather sooner than it was followed with.

BELL J:   That was Dr Raftos, but going back to Professor Brown, did not Professor Brown express the opinion that the risk was outweighed - this was at a point in his oral evidence where he accepted that Ms Masson came within the first diamond in the flow chart, that is, she was in imminent risk of arrest.

MR WALKER:   I think the answer to that is yes.  Could I go in particular to, in Justice McMurdo’s reasons, book 89/90, paragraphs [117], [118].  That is a passage where he is reserving adrenaline to a case in extremis, to use the cliché:

you wouldn’t use [it] when somebody still has a perfusing rhythm . . . [t]hat’s why salbutamol is given.”

The fact that he recognises that Ms Masson was a patient within the first diamond in the flow chart means that ceasing to have any rhythm, perfusing or otherwise, is just about to happen.  That is why the first diamond is not accompanied by the…..Professor Brown would have preferred, consider salbutamol.  By the time you have reached that which is conveyed by the word “imminent” one is at the point of having to reach for the most serious tool in the shed and that was adrenaline.  That, in our submission, is what underlies the significance of Justice McMurdo’s paragraph [165] on page 99.

Once one accepted, which really the trial judge did not resist – or did not find against, I should say, and the Court of Appeal certainly does find, that with death imminent, arrest meaning death being imminent, adrenaline was the superior way of saving the life and preventing damage, damage from anoxia in the brain, once one accepts that, the question does become how should one understand preferences for salbutamol over it, unless you accepted, and that which the imminence of death threatens, namely that adrenaline is by far superior. 

As I say, no one doubted that this was a case where eventually adrenaline saved the day and salbutamol would not and could not.  It is for those reasons, in our submission, that this is, with great respect, a copybook, careful reconsideration in an appeal by way of rehearing of what evidence that could not be reconciled – there were conflicts and contests – produced on…..persuasion. 

No error is shown in either his Honour setting out on that task or in the thoroughness with which he reviewed this material by the paraphrases, which I will not have time to dwell on in detail, but which your Honours have seen and which I earnestly commend to you.  There is a very careful approach taken which seeks to understand how could it be that salbutamol, not able to prevent imminent death, was nonetheless not negligently persisted in for so long as to have caused terrible damage. 

It is not as if there was not credible evidence to the contrary, that no one could say, surely, of Professor Fulde’s material that Justice McMurdo has erred, as a judge sitting in an appeal by way of rehearing, in the confidence he placed in the key points to which his Honour has drawn attention in his reasons based upon Professor Fulde. 

Now the same is true, and there is a clear…..aspect to a number of these witnesses’ evidence - the same is true of the way in which his Honour dealt with Associate Professor Raftos, particularly in the exchange with Associate Professor Ramin.  His Honour in the Court of Appeal thoroughly reviewed the way in which these witnesses were appreciated at trial, for example, paragraphs [85] and [86] in Justice McMurdo’s reasons.

In our submission, all of this is in accordance with the proper approach of…..whether or not, in the Court of Appeal, there is a different preference for the more persuasive expert opinion than his Honour formed below and that will be, if formed appropriately and in accordance with Warren v Coombes, which is after all the guiding basis, if that is formed then there is the appealable error where it is the duty of the Court of Appeal to substitute the view to which they come. 

My learned friend has, with respect, not pointed out any error of approach, nor for that matter said why, in the Court of Appeal, Professor Fulde could not be – that is, should not have been, I should not say could not have been – should not have been preferred by the Court of Appeal to Professor Brown about whom, after all, there was also the commentary that you will recall extracted by Justice McMurdo in Justice McMurdo’s paragraph [120]. 

So that was not a case where there was some advantage of the trial judge that meant there would be error of approach or method in the Court of Appeal by forming a view that preferred Professor Fulde to Professor Brown.  It is to be remembered that Professor Brown got off, as it were, to the rather poor start that Justice McMurdo notes in Justice McMurdo’s paragraph [115].  That is why one picks up the way in which the Court of Appeal resolves these differences by reasoning that includes and culminates, to a degree, in Justice McMurdo’s paragraph [165].

BELL J:   You say that the appellant makes no criticism of the Court of Appeal’s approach in terms of principle.  I rather understood that the appellant does, contending that the Court of Appeal…..judge the standard of the reasonable response of the intensive‑care paramedic in these circumstances to be dictated by the manual and it is suggested that that departs from the approach to the determination of the standard of care beginning in Rogers v Whitaker.

MR WALKER:   Yes.  May I address that now, bearing in mind the time and how your Honours’ questions have taken me - that will be the last matter I want to deal with.  We otherwise rely, as your Honours appreciate, on the matters in our written submissions.

Could I take you in the appellate reasons, the book, page 98 and following, starting in paragraph [160].  My learned friend has already taken you to this.  This is a response to the trial judge’s paragraph [56], to which you have also been taken.  Some criticism was made by our friend – what your Honours I think were invited to regard as an excessively narrow view being taken in the Court of Appeal, distinguishing between credible views and credible body.  That was not narrow.  There was in the trial judge’s findings a recognition that it was not as if there was unanimity at the relevant time.

With respect to a paramedic with a manual, produced in obviously a contentious fashion by the State for the guidance of paramedic officers, in our submission there is no departure from Rogers v Whitaker in saying for somebody not a medical practitioner, whose duty of care should not extend to needing to go into areas he or she is not trained to go into, there is no breach of Rogers v Whitaker in seeing the manual as setting, on the evidence as a matter of fact, not law – as a matter of fact – setting a standard for the mental process in these awful emergencies. 

The mental process was consider adrenaline.  Do not dismiss it on a Professor Brown approach that, in effect, you do not get to it until it is too late, which would be in our submission entirely inappropriate, bearing in mind that no one says the duty of care did not extend by way of physical contact but an avoidance of anoxic brain injury.

It is for those reasons that the notion of Rogers v Whitaker conjures up – bearing in mind the negligence with which the State has been held

vicariously liable being that of an ambulance officer – it conjures up the notion of an ambulance officer forming for himself or herself a view at odds with those who have produced the consensus position for guidance or guidelines in the manual. 

There may be no magic in the word “protocol”, for example.  The word “manual” will do.  The word “guideline” will do.  It is for those reasons that – contrary to what Justice Bell has asked me to respond to – no, there has not been an argument against us which identifies any error in the approach to an appeal by way of rehearing by reference to misunderstanding the position of an ambulance officer, a manual promulgated by the State and the ongoing controversy which moved beyond 2002 and produced what the courts below noted was a shift.

In particular, the State did not undertake at any point to discredit the first diamond or the response indicated by the arrow to the right in its own manual.  It did not say that at the time of these sad events that had already been outmoded or was shown to be a misleading or dangerous expedient to follow. 

For those reasons, with respect, it is an ingenuity to raise Rogers v Whitaker in the context of an ambulance officer with a manual which factually, clearly supplies an understanding, at least, in part, of the content of the reasonable standard of care.  No one has said that it would have been negligent to follow the manual and nobody has said that the manual was irrelevant to the standard of care.

We are certainly not saying now – and I could not be heard to say, in accordance with principle – that the manual is a matter of law.  It sets out, either exhaustively or in the respects in which it is explicit, what has to be achieved in order to avoid negligence.  But it provided in relation to the consideration of adrenaline, for all the reasons that the expert evidence carefully considered by the Court of Appeal shows, an excellent sounding board to assess the reasonableness of a conduct by which salbutamol was initiated and persisted in for the critical, near fatal and injurious 20 minutes of this case. 

Your Honours, I fear, given the time – especially for that reason – I should refrain from repetition – those are our submissions.

KIEFEL CJ:   Thank you, Mr Walker.  Mr Doyle.  

MR DOYLE:   Yes, your Honour.  Your Honours, there is a departure from the approach in Rogers v Whitaker in this case.  No matter how it is put ‑ I am getting feedback, perhaps you could turn it down a bit.  No matter how it is put, the conclusion addressed in paragraph [163] of the Court of Appeal’s judgment finds negligence solely and exclusively by reference to what the Court of Appeal construed to be the effect of the manual, independently of the question of what would be a reasonable response outside the manual by a paramedic…..doctor.  So there is that point.  And our friend has said it is not a failure to identify the respect in which, on the Court of Appeal’s approach to the manual, there is anything but an obligation to administer adrenaline.

The second point we wanted to deal with is the question, which I have already touched upon, of the speed of the response, or the operation of each of these respective drugs.  It is said by our friends to be elementary and obvious, and therefore was not explored with the witnesses.  But in fact, that, in a sense, if it is elementary and obvious, and was not explored with the witnesses, that means all of their evidence should be understood as taking into account the respective speeds of response to adrenaline and salbutamol.  And all of the evidence I have taken you to which suggests that salbutamol was to be preferred for a patient with these conditions, must necessarily mean, notwithstanding that it might operate slightly slower than adrenaline.

The second thing, relevantly, of course, is that if there was greater risk from the use of adrenaline, it is not self‑evident that it is better to have that risk accelerated by producing ‑ by applying a drug which acts very quickly.  Now, these are all things which should have been but were not explored at the trial, and, in our submission, there should be no weight given to, and there should not have been, in the Court of Appeal, any weight given to the appellate court’s judge’s reading of the manual when it had not been explored with any of the witnesses at trial, including Mr Peters.

Repeatedly our friend referred to the circumstance of imminent death of Ms Masson.  We accept that she was in respiratory arrest, that is, that she had ‑ imminent arrest describes her respiratory arrest.  The trial judge’s finding which is at paragraph [19] of his reasons is that she went into cardiac arrest 20 minutes later, that is, at 20:19 and it was immediately after that that adrenaline was administered.  Before that, the evidence is that her condition, at least, appeared to be improving and I took you to that before.

So that from the paramedic’s point of view, salbutamol was applied, it appeared to be doing things which it was meant to do.  Her breathing recovered, her heart rate came down.  She changed from blue to normal appearance and so on and it was only when 20 minutes later she went into cardiac arrest that it became necessary to apply adrenaline. 

Ultimately, our friend said that the error of the trial judge appeared by reading of paragraphs [141] and [143] of his reasons.  Can we ask you to go back to those please, starting with [143]?  It is the last sentence of [143] that our friend relies upon:

This suggests that by the time of the statement Mr Peters was favouring an interpretation of the first diamond of the flowchart to the effect that the presence of indicia opposite to any of those listed in the diamond precluded the following of the arrow to the right of the diamond.

So that the statement in 2009 is the one where it appeared Mr Peters was presenting the view that the opposite of the conditions identified in the diamond precluded the use of adrenaline.  The trial judge found that understanding was plainly not Mr Peters’ understanding at the time of the treatment and that appears in paragraph [141].  What is referred to in [141] is that Mr Peters’ conduct showed that he moved from the first diamond to the right and administered oxygen, and administered ventilation, which only appear against the first diamond, and the question then arises, did he consider adrenaline?

And our friends say no, he must have gone to the next diamond, but the trial judge accepted that, in fact, his conduct was consistent with looking at the first diamond and moving to the right.  Now, the bulk of what our learned friend said, which proceeded from this, was to assume that Mr Peters’ true understanding is the one expressed in the 2009 statement.  But the reasoning of the trial judge was to conclude that was not his understanding in 2002, as demonstrated by…..issue of imminent arrest, and moving to the right.

Your Honours, the final matter that we wanted to touch upon, I think, is the suggestion that paragraph [164] of the Court of Appeal’s judgment should be understood as identifying a preference to one body of evidence over another.  That is, it is said that, when one reads these reasons one can see the Court of Appeal identified competing views and preferred one.  That is not, as we would urge, her Honour’s reasons demonstrate.

If you turn back to the discussion which precedes all this, at paragraph [118] – sorry, [114] where Professor Brown’s evidence is discussed, including crucially paragraph [118] where he says it is dangerous to give adrenaline, that is why you give salbutamol.  Nowhere does the Court of Appeal say that should not be accepted, we do not accept that evidence, or we cannot reconcile with this, or any kind of analysis of that evidence.  Similarly, with Professor Boots, in [126], where he says:

adrenaline “can make it quite worse by stunning the heart into all manner of funny rhythms”.

There is no articulation by the Court of Appeal “That is not correct” or “That evidence cannot be accepted”.  Similarly for Dr Ramin.  Similarly, can we say, for Dr Raftos and Mr Kenneally and Mr Hucker.  Rather, what the Court of Appeal has done is rejected the notion that there were two schools of thought.

That is what the trial judge found, there were two schools.  There were two bodies of responsible medical opinion, one held by Professor Fulde and others and one held by the various people I have just outlined and, for reasons which are completely unexplained, the Court of Appeal says there are not two schools of thought, on the basis of that not being supported by the evidence, even though the evidence plainly supports it.  The Court of Appeal nowhere expresses that they have weighed that up and decided not to rely upon it.  So we would urge that that is a plain error in concluding that there was only one view and not two, contrary to what the trial judge had said, without explaining at all why they departed from it.

A further explanation of that is when you go to paragraph [165] where the Court of Appeal says it might have been different if our witness had said something else.  Now, if they are wrong, if they cannot be relied upon, it should make no difference.  This is an irrelevant hypothetical articulation which reveals, with respect, a lack of understanding of the trial judge’s conclusion that there were two respectable bodies of opinion.

So that is, we would urge, the error of the Court of Appeal, relevantly.  It leaves unexplained all of the evidence to which we took you, including as it does Professor Raftos and Mr Kenneally who recognised there were two respectable bodies of opinion.  It leaves unexplained Mr Hucker’s evidence which says the same and…..said it leaves unexplained why it was not thought to be right to act upon Professors Boots, Brown and Ramins’ views.

Ultimately, it is said, we cannot implicitly criticise the manual that the Queensland Ambulance Service has drafted was something inconsistent in my submission.  Of course, we are not doing that at all.  Properly construed, the manual does not direct the administration of adrenaline; what it directs is consideration.  It is only if you ignore the various things we took you to to show that consideration involves judgment, perhaps departure from the guideline, taking into account benefits and disbenefits and so on.

It is only if you read the manual as completely prescriptive that it can be said we are impliedly criticising the manual but that is an inversion.  The manual, properly construed, permitted Mr Peters, acting reasonably, to do what he did and he did so in a way which is consistent with a reasonable person’s response to the appreciated risk.  Those are our submissions, your Honour.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to Friday, 12 June at 9.30 am in Melbourne.

AT 4.04 PM THE MATTER WAS ADJOURNED