Stephen Paul Worley v The Ambulance Service of New South Wales

[2004] NSWSC 1269

CITATION:	Stephen Paul Worley v The Ambulance Service of New South Wales [2004] NSWSC 1269
HEARING DATE(S):	22 March 2004 - 15 April 2004, 9 August 2004 - 18 August 2004, 1 February 2005, 4 February 2005
JUDGMENT DATE:	1 February 2005
JUDGMENT OF:	Barr J at 1
DECISION:	Verdict and judgment for the plaintiff in the sum of $2,628,032.57. For orders see paras. 263-265.
CATCHWORDS:	Negligence - whether plaintiff's injury and disability caused by treatment given by defendant - whether defendant treated plaintiff in breach of required standard of care - whether plaintiff guilty of contributory negligence - whether defendant entitled to statutory defence.
PARTIES :	Stephen Paul Worley, The Ambulance Service of New South Wales
FILE NUMBER(S):	SC 20456/01
COUNSEL:	P S Jones and I S McLachlan P E Blacket SC and M J Windsor
SOLICITORS:	Forners Frances Allpress

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

4 FEBRUARY 2005 (Reasons for judgment revised
9 February 2005)

20456/01 STEPHEN PAUL WORLEY v THE AMBULANCE SERVICE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff, Stephen Paul Worley, sues the defendant, the Ambulance Service of New South Wales (“the Ambulance Service”), for damages to compensate him for injury, loss and damage which he suffered upon and consequent upon the occurrence of a cerebral haemorrhage on 7 October 1998. It is Mr Worley’s case that the haemorrhage resulted from inappropriate treatment administered to him by officers of the Ambulance Service.

The facts

2 Mr Worley was a forty-eight year old postman. He had been in that work since 1991. Earlier on he had worked in various occupations. He was by all accounts a hard worker, a man who always provided for his family. During the course of his job he used to ride a motor cycle along the footpaths of the suburbs, collecting mail and delivering it to letter boxes. He carried the mail in pannier bags on the back of his motor cycle. He ran the risk, as an open-air worker, of insect bites and stings. These were a problem because the letter boxes into which Mr Worley had to put the mail were often close to flowering shrubs which attracted insects.

3 Mr Worley had been stung on occasions and had proved allergic to bee venom. On 23 October 1992 he consulted his general practitioner, Dr Kefalas, having been stung on the chest by what might have been a wasp. There was local swelling, but apparently no general illness. His blood pressure was normal at 134/80 and there was no swelling of the throat.

4 On 8 January 1993 he was referred by a doctor to Blacktown hospital suffering an allergic reaction to what he probably said was a bite. There was pain at the site, on the left chest, and itchiness there for about fifteen minutes. He had no difficulty in breathing. His blood pressure was 150/75 and his pulse rate 80 beats per minute and regular. Air entry to the lungs was marginally reduced on both sides. He was wheezing. Those at the hospital thought that he had been stung by a bee or wasp.

5 On 8 November 1996 he saw Dr Kefalas, having been stung on the left elbow. The sting had been extracted, suggesting that it was the barbed sting of a honey bee. He was hot and felt unwell. Dr Kefalas wondered whether there was anaphylaxis, but did not make such a diagnosis. He did not record any wheezing or swelling of the throat.

6 On 25 April 1998 Mr Worley attended Nepean Hospital, having been stung on the left foot by a bee. A nurse noted that as well as the foot, the left arm and armpit were swollen. He had a slight tightness in the throat and face, together with swelling. The chest was clear with good air entry. The pulse rate was seventy and the blood pressure 130/70. Adrenaline was administered subcutaneously. The treating doctor, Dr Rajaratnam, wrote a letter referring Mr Worley to Dr Frankum, a specialist in desensitising persons who were allergic to bee stings. Two days later Mr Worley saw Dr Kefalas about the sting. His blood pressure was normal.

7 On 7 October 1998 Mr Worley’s base was the Mail Delivery Centre operated by his employer, the Australian Postal Commission (“Australia Post”) at Glendenning. He began work at 5.30am. After sorting mail and loading it onto his motor cycle he began his deliveries. His work took him to Quakers Hill. As he was delivering mail there he was stung by a bee at the base of his neck on the left side. He thought that that happened at about eleven o’clock. He rode his cycle to a reserve nearby, got off it, took off his helmet, sat down and had a drink of water. He noticed that his neck was reddening and decided to return to the Mail Delivery Centre. He was at the reserve for about ten minutes. He rode his cycle back to Glendenning. He used the road, not the footpath, though it was necessary for him to negotiate a very tight pedestrian railway crossing near Quakers Hill station. Generally he rode at about forty kilometres per hour. The distance was 5.4 kilometres and the journey took about twenty minutes.

8 On the way he met Ms Julie Ferguson, his supervisor. He told her that he had been stung by a bee and asked her to return with him to the Mail Delivery Centre. Ms Ferguson was under a lot of pressure to finish the job that she was doing and declined to go with him. She noticed that his face was red. She described him as flustered.

9 When Mr Worley arrived at the Mail Delivery Centre he turned off the ignition of his motor cycle and got off the cycle. As he threw his leg over the machine to dismount he felt as though he may have had a bowel motion. He walked to the lavatory to check and ascertained that he had not soiled his clothing. He spoke to Mr Cameron, the manager of the Centre. According to Mr Cameron, Mr Worley came up to him at about midday and told him that he had been stung by a bee. He was unsure at first whether Mr Worley meant what he said. He was standing upright but leaning against the wall. When he was assured that Mr Worley was serious, Mr Cameron said that he would take him to the first aid room. The two walked there together. Mr Worley was unsteady but able to walk unaided. Mr Cameron noticed that his voice was becoming quieter and Mr Worley complained that he was short of breath. He drank a glass of water he was given.

10 It does not appear whether it was during or after the events I have summarised, but Mr Cameron telephoned the Ambulance Service at 12.01pm. So much appears from the records of the Ambulance Service. According to a Patient Report Form, the ambulance left the base at 12.04pm and arrived at the Mail Delivery Centre at 12.17pm. Two ambulance officers attended, Mr Parsell and Mr Page. Under the heading “HISTORY Chief Complaint” there appears this account in the Patient Report Form-

Bite (sic) by bee/wasp to neck. Male pt æ allergy to wasps/bees bitten on neck 10 mins ago. Pt c/o feeling itchy/dyspnoeic. Pts face red/swollen. Pt c/o severe pain to neck associated æ bite. Audible exp wheeze. Obvious swelling to face. Tongue not swollen. Nil difficulty swallowing. Pt post treatment. Pt c/o severe itching to genitalia.

11 Those who are stung by bees may suffer more than local symptoms. In susceptible people, there may be a general and more serious allergic reaction to the venom. Anaphylaxis is a severe general allergic reaction. The word describes a constellation of symptoms and has no precise definition about which everyone agrees. The definition used by the Australasian Society of Clinical Immunology and Allergy is as follows:

Anaphylaxis is a rapidly evolving generalised multisystem allergic reaction characterised by one or more symptoms or signs of respiratory and/or cardiovascular involvement, and involvement of other systems such as the skin and/or gastrointestinal tract.

12 The venom imparted in a bee sting will in some people dilate the blood vessels, allowing fluid to leak into surrounding tissue. This may have several consequences, two of which are important for present purposes. The first is that as a result of the increased volume of the blood vessels and the reduced amount of blood within them there is a fall in blood pressure. This may be rapid and may result in less efficient perfusion of oxygen to the muscles and the brain. When perfusion becomes lower than is necessary to enable the affected parts to function normally the patient is said to be in shock. The second consequence is the effect of the leaking fluid. The tissue into which it flows swells. When that tissue is near the airways their capacity may be reduced by the swelling and they may even become blocked.

13 Perhaps the principal indicator whether a patient may be in shock is the blood pressure. Most practitioners would regard a patient whose systolic blood pressure was less than 90 millimetres of mercury as probably in shock, though some would say less than 80. One specialist who gave evidence, Dr Raftos, would say less than 100. Systolic blood pressure is not a universally accurate indicator of shock, however. A slight woman might well have a normal systolic blood pressure of about 90 or less. Whether shock is present is a matter for judgment and other signs may have to be taken into account, for example the heart rate and the appearance of the skin.

14 Ambulance officers who attend to any person they believe may be experiencing anaphylaxis are therefore concerned to note, among other things, the blood pressure, the heart rate and the condition of the skin and to ascertain whether the airways are compromised by swollen tissue.

15 Adrenaline, which is also called epinephrine, particularly in the United States of America, is by common consent a drug appropriate for the treatment of shock in a number of conditions, including anaphylaxis. It is a molecule which is secreted in the human body and released naturally in response to stress. It has two effects which combine to raise blood pressure: it increases the rate at which the heart pumps blood and it contracts the walls of the blood vessels. It acts quickly but only for a short time.

16 The Ambulance Service issues instructions to its ambulance officers in documents called protocols. The ambulance officers must comply with those protocols and have no discretion to depart from them. On 7 October 1998 there were in force Protocol 8, entitled Anaphylactic Reactions, and Pharmacology 201, entitled Adrenaline. Ambulance officers dealing with a case are required to write on a Patient Report Form the numbers of the protocols which they follow. Numbers 8 and 201, among others, were written on Mr Worley’s Patient Report Form.

17 Protocol 8 was as follows-

ANAPHYLACTIC REACTIONS PROTOCOL 8


DIAGNOSIS

May occur in response to drugs especially antibiotics, X-Ray contrast media, certain foodstuffs and insect bites especially bee sting.

May present with:

1. Upper airway obstruction due to swollen tongue or laryngeal oedema.
2. Lower airway obstruction with bronchospasm.
3. Hypotension.
4. Bright red skin sometimes with urticaria.

TREATMENT
1. BASIC PROTOCOL 2.
NASOPHARYNGEAL AIRWAY may be useful if tongue is swollen.
2. CANNULATE and administer HARTMANN’S.
3. ADRENALINE is indicated if any one of the following are (sic) present:-
1. Upper airway obstruction.
2. Lower airway obstruction
3. The “key signs” of severe shock except skin is often warm and pink.
4. IF HYPOVOLAEMIC SHOCK PERSISTS – despite adrenaline follow Protocol 42.
5. SALBUTAMOL for mild bronchospasm.
6. URGENT TRANSPORT.

Compression Bandage is no longer used for anaphylactic reactions.

18 Pharmacology 201 was as follows-

ADRENALINE PHARMACOLOGY 201
TYPE:
A naturally occurring catecholamine.

ACTION:

Stimulates the ALPHA and BETA subdivisions of the sympathetic nervous system to produce ‘fight’ or ‘flight’ reaction.

1. ALPHA stimulation causes peripheral vasoconstriction. This is important during cardiac massage as it raises the perfusion pressure of vital organs and also in anaphylaxis as it decreases capillary permeability.

2. BETA 1 stimulation causes increased myocardial excitability with tachycardia and increased myocardial contractility.

3. BETA 2 stimulation causes bronchodilation.

I.V. Adrenaline acts immediately and lasts 2-5 minutes.

USES:

1. Cardiac arrest:

massage.

Ventricular Fibrillation
3. To stimulate myocardial excitability and contractility in asystole, I.V.R. and other bradycardias.
2. Bradycardias if pulse rate <50, poorly perfused with B.P. <80 systolic, and unresponsive to Atropine.
3. Cardiogenic shock if pulse rate <150 and poorly perfused with B.P. <80 systolic.
4. Asthma if “in extremis” with decreased L.O.C. or minimal air movement.

5. Anaphylaxis with upper or lower airway obstruction or shock with B.P. <90 systolic in adults.

ADVERSE EFFECTS:

1. Tachycardia and arrhythmias due to the BETA 1 effect. In excess it can cause ventricular fibrillation.
2. Severe hypertension due to the ALPHA effect.
3. Tissue necrosis if extravasation from vein occurs.

PREPARATION:

Adrenaline – 1:10,000 solution 1mg per 10ml Min-I-Jet.
DOSE:

…
4. ASTHMA OR ANAPHYLAXIS

1ML OF 1:10,000 ADRENALINE I.V. EVERY 30 SECONDS, until the patient is no longer “in extremis” or a maximum of 5 mls.
Monitor E.C.G. continuously.
Can be repeated every 5 minutes
Give I.M. as a bolus if a vein is not available.

19 As appears from the evidence of Mr Parsell, it was usual for ambulance officers to be assigned to a job in pairs. One would assess the patient, decide whether and how to treat and how otherwise to deal with the case and the other would drive the ambulance and otherwise assist. Mr Page assessed Mr Worley and administered the drugs. He attended to him first of all in the first aid room as he sat up on the bed. Having questioned Mr Worley about what had happened and having noted any detectable signs, Mr Page fitted an oxygen mask and took Mr Worley’s blood pressure. That was at 12.20pm. There was a systolic blood pressure of 78, a pulse rate of 100 beats per minute, which was at the top of the normal range, and a respiration rate of 28 per minute, which was a little elevated. The Glasgow coma score was 15. The Glasgow coma scale measures a patient’s degree of consciousness by assessing verbal responses, motor responses and eye opening. Fifteen is the highest possible score. A patient registering that score is fully conscious.

20 As Mr Worley was seated on the bed in the first aid room Mr Page sat beside him on his right. As he did so he inserted a cannula into Mr Worley’s right hand. During that procedure Mr Worley’s right hand came close to Mr Page’s thigh and Mr Worley, joking, said that Mr Page had better be careful as he, Mr Worley, might be gay. At 12.22pm Mr Page began administering adrenaline. He administered 0.4mL in four equal boluses each of 0.1mL at thirty-second intervals. At 12.25pm he administered intravenously 500mL of Haemaccel and at 12.30pm the same amount of Hartmann’s solution. These latter compounds play a part in the process of resuscitation by increasing the volume of the blood. Other drugs were administered as well.

21 Mr Parsell brought a wheeled stretcher into the first aid room and Mr Worley walked to it and lay on it. As Mr Parsell went to wheel him to the ambulance, Mr Worley took off the oxygen mask and told Mr Cameron not to tell his wife what had happened and that he would return to collect his car from the Mail Delivery Centre. He said those things because he was expecting to be away from work for only a couple of hours.

22 The blood pressure was 90 systolic when taken again at 12.30pm. The pulse rate was 80, and the Glasgow coma score 15.

23 The ambulance left for the hospital at 12.30pm. It drove along Owen Road and turned into Power Road. Just after that first turn, which must have been no more than a minute or so into the journey, Mr Worley experienced a headache that was so severe that he pulled off his oxygen mask and told Mr Page that his head felt as though it was about to explode. The pain went from the front to the back of the head, around the left side.

24 After that event, Mr Worley remembered nothing about the journey to the hospital or his reception there. His next recollection was of seeing his wife at the hospital on the same evening. As Mr Parsell drove the ambulance he was separated by a partition from Mr Worley and Mr Page, so he saw and heard nothing of what happened on the way to the hospital. Mr Page died after these events and before the hearing. There is therefore no witness to anything else that happened in the ambulance. The only record is in the Patient Report Form, which shows that at 12.40pm 5mg of morphine was administered intravenously. There had previously been no complaint that would have justified the administration of that drug, and I conclude that Mr Page gave morphine because of the headache.

25 As the ambulance arrived at Mount Druitt Hospital at 12.41pm Mr Page measured the pulse rate at 75, the blood pressure at 140 systolic and the Glasgow coma score at 15.

26 The records of Mount Druitt Hospital show that at 12.42pm Mr Worley was alert and well perfused. At 12.44pm his pulse rate was 82, his blood pressure 116/70 and his Glasgow coma score 15. He was admitted to the hospital at 12.48pm and at 1.00pm was recorded as complaining of numbness in the right side. A note made at some later unspecified time recorded that when he arrived at the hospital Mr Worley was complaining of general weakness and right-sided paraesthesia. The weakness and the paraesthesia resulted from the haemorrhage.

27 A CT scan was done on the following afternoon and showed the presence of a haemorrhage 2cm by 1cm by 1cm in the left corona radiata.

28 It is necessary to try to ascertain as closely as possible the times of events. Mr Worley estimated the time of the sting at about 11 o’clock. That estimate does not fit well with the other evidence. Mr Page’s record that it happened “10 mins ago”, which must have come from a history given by Mr Worley but may also have resulted from a misunderstanding, does not either. The earliest precisely timed event is the logging of Mr Cameron’s telephone request to the Ambulance Service at 12.01pm. A number of things happened between the time of the sting and that time. First, Mr Worley took his motor cycle across the road and rested in the reserve. He parked his motor cycle, removed his helmet, sat down, drank water from his bottle and examined the appearance of his face in the rear-view mirror. It must have taken a few minutes for those things to happen and for Mr Worley to decide to cease his round and return to his base. Although he is not a particularly good estimator of times, his estimate that he spent about ten minutes in the reserve is probably not far wrong.

29 Then he rode back to the Mail Delivery Centre. The distance was 5.4 kilometres. I accept that he did not exceed about forty kilometres an hour on the journey. His journey took him through intersections, stop signs and traffic lights. The main roads he travelled on were busy. He had to negotiate a narrow, twisting railway level crossing. On the way he stopped and spoke to Ms Ferguson. His estimate of twenty minutes for the whole journey is probably not far wrong.

30 Mr Worley’s visit to the toilet and his request to Mr Cameron, which was not at first accepted, must have taken a few minutes.

31 I think that these three events probably took not less than half an hour, and I conclude that the sting happened no later than 11.30am.

32 The administration of adrenaline was complete by 12.24pm. The headache was the first symptom of the haemorrhage. It came on soon after 12:30pm, which was somewhat more than six minutes after the administration of the last bolus of adrenaline.

33 Counsel for the Ambulance Service pointed to other possible explanations for the headache, for example the release of histamines and the swelling of facial muscles, but they do not seem apt to account for the severity or the timing of the headache. By the time Mr Worley was placed in the ambulance, it was about an hour and probably longer since he had been stung. Any swelling resulting from the bee venom had manifested itself well before the headache. In the same way, there had been plenty of time for the release of histamines and the observation of any resulting discomfort.

34 I must correct two serious misunderstandings that arose during Mr Worley’s treatment and during the preparation and the conduct of his case. The first is the notion that his blood pressure fell to 60 systolic.

35 There is in the records of Mount Druitt Hospital a written referral by Dr Underwood to a neurologist. It was written after the CT scan of 8 October and not later than 14 October. It states that Mr Worley’s systolic blood pressure was 60 “when the ambulance was at the scene”. The neurologist concerned made a note on 14 October repeating the statement that there was a blood pressure of 60 at that time.

36 Blood pressure readings when the ambulance was “at the scene” could only have been made and recorded by Mr Page or Mr Parsell. A reading as low as 60 would have impressed itself on them as significant, given the symptoms of which Mr Worley was complaining, and I think it highly unlikely that it would have been mistakenly recorded as 78, the first reading taken, or left unrecorded. The Patient Report Form and the Mount Druitt Hospital reference cannot stand together. The former is an original record and the latter a reiteration of information conveyed, perhaps, by word of mouth. I prefer the former. I do not think that Mr Worley’s blood pressure was ever measured at 60 systolic.

37 The second error is a notation that Mr Worley was suffering periods of unconsciousness or of interference with his vision before he was placed in the ambulance. Perhaps as a result of the haemorrhage, Mr Worley does not always successfully say what he intends to say. An example will illustrate what I mean. There is no doubt that he did not soil his underpants as he was dismounting at the Mail Delivery Centre. If he had done so he would have ascertained the fact himself or, failing that, Mr Cameron, Mr Page and Mr Parsell could not have failed to notice. The fact is that he only thought that he had soiled his underwear. Yet a number of medical practitioners have recorded his having told them that he did soil his underpants. There were these questions and answers in cross-examination -

Q Yes. Well, you did not have effective control of your bowels, did you?
A I thought I did. But I didn’t. Because I went and checked .
Q Well, you went to the toilet straight away and cleaned yourself up, didn’t you?
A Yeah, I – because I got – I thought I got – I thought I did, but I didn’t.
Q But you had that sensation of loss of control, is that right?
A Yes, but I didn’t soil my pants.
Q You have told a number of doctors that you did soil your pants. Are you aware of that?
A I am aware of that, but the day I went back there, I remember that I – I didn’t do it because I remember when I got off and went in there and I still had the same underpants on and pants on in the hospital, apparently for a couple of days, so I wouldn’t have soiled them.

38 Obviously, in his first answer Mr Worley intended to say not “I thought I did but I didn’t” but “I thought I didn’t but I did” (have effective control of his bowels). I think that he must have had a similar difficulty in recounting his story successively to the very large number of medical practitioners that he has had to see.

39 The first statement of Mr Worley’s that was taken to mean that he had experienced periods of unconsciousness might have been made to Dr Shaun Watson, neurologist. Dr Watson saw Mr Worley at Mount Druitt Hospital on 14 October 1998 and in his rooms on 24 March 1999. Dr Watson wrote a report on the latter day and the contents show that he had had access to accounts other than Mr Worley’s. The report contains this passage -

He recalls sitting on the first aid bed at work and blacking out several times before the ambulance arrived. My understanding is that his blood pressure was 60 systolic on initial ambulance assessment and he was treated on the way to Mt Druitt Hospital. He told me that he lost consciousness on several occasions and was finally given treatment with adrenaline.

40 A systolic blood pressure of 60 would have seemed significant to Dr Watson and, I think, consistent with loss of consciousness. I think that Dr Watson’s understanding of whatever words Mr Worley used must have been informed partly by that erroneous report. Mr Worley was cross-examined about what he had said to Dr Watson. There were these questions and answers -

Q Yesterday I suggested to you that you saw Dr Shaun Watson in March 1999; that was about 5 months after your bee sting. And I suggested to you that you told Dr Watson that you recalled sitting on the first aid bed at work and blacking out several times before the ambulance arrived. Do you recall telling Dr Watson that?
A No, I don’t remember seeing Dr Watson. I probably did, but I don’t know. I don’t know, you know.
Q In any event, that was the truth, was it not; that when you were sitting on the bed in the first aid room at Glendenning you blacked out several times before the ambulance arrived?
A No, I told you - I didn’t – I think I’ve told before that I have black spots in my memory over that. But wasn’t any that long. (sic) But I don’t remember, don’t remember that. But I have spots on my memory. I can’t get it at all together; I don’t remember. I don’t remember seeing Dr Watson on that day.
Q Dr Watson has recorded that you lost consciousness on several occasions and you were finally given treatment with adrenaline. Is that what you told Dr Watson then, do you think?
A I don’t know, cause I don’t know what I was given at Glendenning .
Q Before you were given any medication by the ambulance officers you did lose consciousness on several occasions, didn’t you?
A No I don’t think so. I think – I have spots in my memory of it, but I don’t think I lost consciousness.
Q Are you able to offer any explanation why Dr Watson has recorded you as losing consciousnesses?
A I don’t know .
Q A number of doctors have made similar records after consultations with you, that you blacked out or lost consciousness whilst at the first aid station. Do you think it could have happened?
A I don’t. Cause I have spots on my memory that day, but I don’t remember blacking out. I have black spots in my memory, but I don’t say that I – what you said.

41 I do not think that Mr Worley told Dr Watson that he had lost consciousness on several occasions before the ambulance officers arrived. He was nowhere near losing consciousness when he walked to the first aid room. His symptoms had then been present for at least half an hour and they were not apparently becoming worse. Although Mr Cameron was not in Mr Worley’s presence during the whole of the sixteen minutes that they waited for the arrival of the ambulance, he kept an eye on him and would have noticed if he had lost consciousness. His Glasgow coma score was 15 throughout those events.

42 I think it likely that Mr Worley was telling Dr Watson that there were black or blank spots in his memory of the events. He gave this evidence in cross-examination -

Q …I suggest that you went to the first aid room and sat on a bed and when you sat on the bed, you said that you were blacking out, in and out of consciousness, is that right?
A No. Blacking out is – I would have – I have black spots in my memory for the memory for that, but I wouldn’t have got these, say, you lose consciousnesses. I don’t – I don’t know.
Q I think we are talking about the same thing. What I am suggesting to you is you are not knocked out like a boxer lying on the canvas but during that period of time, there are little gaps in your memory – little, as it were, black outs. I am not suggesting you were not awake but you couldn’t remember everything that happened in that time?
A Well, in that time there, I was just sitting on the – sitting on the bed and – and I was waiting and I was talking – Dave Cameron was talking to me. I remember him being there and talking and he was standing over near the doorway and he was there most of the time and he went and - while I was sitting there, and then he – he said, “Oh, the ambulance is here”, so then the ambulance blokes came in.
Q Just stopping there, what I am suggesting to you happened is that when you went to the first aid room and sat on the bed, you recollection about events after you sat on the bed is not continuous, there is little gaps in it, is that right?
A The memory, yeah, but it wasn’t – I wasn’t – there wasn’t anything happening to remember. There was just sitting there.
Q You described, I suggest, little blackouts occurring in that time. What did you mean by that?
OBJECTION
JONES: I think that he used the word “black spots”, not “blackouts”.
BLACKET: Q Sorry, little black spots in that time. What did you mean by that?
A Black spots in my memory. In my memory, not, um --

43 Mr Worley was referred to a statement he was reported to have made to a psychiatrist, Dr Hordern, that he had blacked out in the first aid room. There were these questions and answers -

Q And then you told Dr Hordern that you were then blacked out, didn’t you?
A I had blackouts in my memory.
Q Not black spots. You told Dr Hordern that you blacked out?
A Blacked out. I remember blacking – don’t remember it all in there.
Q No ?
A I don’t remember everything as it happened but there was nothing happening in there. It was just me sitting there and Dave – Dave talking.
Q You don’t know what happened when you blacked out, do you?
A I have blacked spots in the – I have blanks in your memory but in there. In there.

44 Mr Worley’s reference to “in there” was to his head. He was referring to his memory.

45 Mr Worley has many times been at pains to tell doctors and others, including the Court, that he has had “black spots” in his memory of the events at the Glendenning Mail Delivery Centre. I think that he has probably been concerned, in trying to recount the details of what happened, to make it clear that he does not remember everything. However that may be, I do not think that he ever lost consciousness or that he ever intentionally told anybody that he did. I do not think that he ever suffered any interference with his vision.

46 There is a system of grading patients suffering from anaphylaxis called the Ring and Messmer Classification. It is commonly used by clinicians. The class of those least affected is Grade I, where patients have symptoms like redness of the skin (urticaria) and a mild fever.

47 In Grade II there is a measurable but not life-threatening cardiovascular reaction such as tachycardia (fast heart beat) and hypotension. A pulse rate is reckoned to be tachycardic if it exceeds 100 beats per minute. I have already mentioned that a patient may be considered to be hypotensive if the systolic blood pressure is less than 90, though some experts say 80. A figure between 70 and 90 is said to be moderate and less than 70 severe. There may be gastro-intestinal disturbance (nausea, vomiting), respiratory disturbance, primarily tachypnoea, which means increased rate of respiration, and possibly wheezing due to bronchospasm.

48 In Grade III there is definite shock, life-threatening, severe bronchospasm and/or angio-oedema of the face, neck or upper airways.

49 In Grade IV there is cardiac or respiratory arrest.

50 I am satisfied that immediately before he was treated, Mr Worley was fully conscious and able to speak. He was able to initiate a joke with Mr Page, which shows that his brain was adequately perfused. He was able to swallow. He was able to give an account of what had happened to him. It may not have been a completely reliable account, though that had more to do with his ability as a historian and with his judgment of time than with his capacity to think and speak. His symptoms other than pain in the neck and chest from the sting were swelling to the face, a wheeze on expiration, showing that the air passages in the lungs were affected, a feeling of looseness in the bowel, indicating some effect on the gastro-intestinal tract, redness of the skin and severe itching of the genitalia. He was short of breath. He was having difficulty in standing and walking without support.

51 Mr Worley was on the verge of tachycardia. His respiration rate was elevated. By reference to the blood pressure reading taken at 12:20pm he was hypotensive, though, as I shall explain, it may be inappropriate to rely on that figure. The lower airways were affected, but not the upper. There was mild involvement of the gastro-intestinal tract. Mr Worley fell between Grades II and III of the Ring and Messmer Classification, though closer to Grade II.

Immunity from suit

52 A preliminary issue arises whether the Ambulance Service can be held liable at all, either in contract or in tort.

53 It was first submitted by counsel for the Ambulance Service that there was no contract between the Ambulance Service and Mr Worley. The facts were that Mr Cameron telephoned the Ambulance Service and requested that an ambulance attend. I regard him as having made that request as agent for Mr Worley. After the Ambulance Service had completed the job it sent Mr Worley an account for its services. Those circumstances would ordinarily be taken as evidence of a contract. If, for example, a request had been made by or on behalf of a sick or injured person to a medical practitioner or a hospital for the provision of medical services, with the implication of a promise to pay the reasonable cost of the services and if the services requested were provided and a bill were sent for their reasonable cost, it would be uncontroversial to say that the two sides were in contractual relations with one another.

54 Counsel for the Ambulance Service relied on the remarks of Gummow J in Suatu Holdings Pty Limited v Australian Postal Corporation (1989) 86 ALR 532. At 540 his Honour reviewed the common law and observed that the position appeared to be that no contract came into existence merely from the entrusting of articles to the Post Office for carriage and delivery at the required rates of postage.

55 I do not find that case of assistance. Apart from the fact that the Postal Services Act provided that proceedings did not lie against the corporation, its officer or employee under a contract, there is, I think, a significant difference between the provision of postal services and the administration of drugs in the course of medical treatment.

56 Counsel referred to the great number of demands placed on the Ambulance Service for its services throughout the whole of New South Wales, to the high number of ambulance officers who had to be recruited and trained and to the fact that it did not exist to make a profit. It was funded by the New South Wales Government and although it ordinarily charged for its services it frequently did not do so, for example, for pensioners. It was submitted that in the circumstances the law would not hold the Ambulance Service responsible for the consequences of the actions of its officers done in good faith in the course of their duties.

57 I would not regard these circumstances as removing any actionable requirement for care in treating members of the public. Exactly the same things might be said about the public hospitals of this State. They have to take proper care of their patients and may be held liable to compensate them for resulting loss and damage if they fail to do so.

58 It was submitted that the Ambulance Services Act required only the provision of an adequate, not a reasonable, service. For present purposes I see no distinction between the two words. I would have regarded a service that provided less than what was considered reasonable was inadequate and that a service that provided less than what was regarded as adequate did not provide what was reasonable.

59 Reference was made to cases where statutory bodies had failed to act and had been found not to be liable, such as Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Sullivan v Moody (2001) 207 CLR 562 and Pyrenees Shire Council v Day (1998) 192 CLR 330. As with the Post Office example, I find these cases of no assistance. This is not a case where the Ambulance Service failed to act. It is about the actual response of the Ambulance Service and about whether, as required by its Act, it protected Mr Worley from injury and achieved adequate standards of ambulance services.

60 In Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424, Mason J said at 458-459 -

It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. The principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by
reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered (Caledonian Collieries Ltd. v. Speirs (1957) 97 CLR 202, at pp 219-220; Benning v. Wong (1969) 122 CLR 249, at pp 307-308) has been applied mainly to private Acts. However, it has been frequently applied in Australia to public authorities, notably public utilities, exercising powers under
public statutes (Sermon v. The Commissioner of Railway (1907)5 CLR 239, at pp 245, 254; Essendon Corporation v. McSweeney (1914)17 CLR 524, at p 530; Metropolitan Gas Co. v. Melbourne Corporation (1924)35 CLR 186, at pp 193-194, 197; South Australian Railways Commissioner v. Barnes (1927)40 CLR 179; Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks (1933)50 CLR 108; The South Australian Railways Commissioner v. Riggs (1951)84 CLR 586, at pp 589-590; Voli v. Inglewood Shire Council (1963)110 CLR 74, at pp 88, 89, 100; Birch v. Central West County District Council (1969) 119 CLR 652.
While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority (McSweeney, at p.530; Metropolitan Gas Co., at p.197), the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law (Geddis v. Proprietors of Bann Reservoir (1878) 3 App Cas 430, at pp 455-456; London and Brighton Railway Co. v. Truman (1885) 11 App Cas 45, at p 61; Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. (1916)21 CLR 181, at pp 199-200; East Suffolk Rivers Catchment Board v. Kent (1941) AC 74, at pp 88-89; Riggs, at pp 589-590). And, at least since the decision in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council (1945) KB 584, esp. at pp 592-593, 615, 619-620, it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care.

61 The Ambulance Service has its own Act, the Ambulance Services Act 1990. Section 12 of the Act gives the Ambulance Service functions. Relevantly, it runs as follows -

12 Functions of Ambulance Service

(1) The functions of the Ambulance Service are as follows:
(a) to provide, conduct, operate and maintain ambulance services,
(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services,
(c) in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured,
…
(h) to achieve and maintain adequate standards of ambulance services in New South Wales,

62 The 1998 Annual Report of the Ambulance Service contained this statement -

We will provide responsive, high quality services in emergency clinical care, rescue and patient transport through quality of service, organisational performance, valuing our people and meeting community needs.

63 It is interesting to compare the functions of the Ambulance Service with the functions of Area Health Services as part of the Public Health System of New South Wales, provided for by the Health Services Act 1997. Section 10 of that Act provides, by para (d), that it is a function of Area Health Services to achieve and maintain adequate standards of patient care and services. That function is remarkably like the one provided for in s12(1)(h) Ambulance Services Act.

64 Notably absent from the Ambulance Services Act is any statement that no suit lies in contract or otherwise against the Ambulance Service. On the other hand, ambulance officers are protected. Section 26 of the Act is as follows -

26 Exculpation from certain liability
An employee of the Ambulance Service or an honorary ambulance officer is not liable for any injury or damage caused by the employee or officer in the carrying out, in good faith, of any of the employee’s or officer’s duties relating to:
(a) the provision of ambulance services, or
(b) the protection of persons from injury or death, whether or not those persons are or were sick or injured.

65 The Ambulance Services Act is consistent with the intention of the Parliament to make the Ambulance Service liable for the negligent acts of its employees carried out in the course of their duties. Nothing in the Act or at common law appears to me to grant the Ambulance Service relief of immunity from suit.

66 In my opinion there was a contract between Mr Worley and the Ambulance Service. Implied in the contract was a term that the officers of the Ambulance Service might treat Mr Worley and might, in the course of treatment, administer drugs. It was further implied, I think, that the Ambulance Service would treat Mr Worley properly and competently and administer drugs only in accordance with accepted medical and pharmacological practice and not expose him to the risk of undue injury, loss or damage. The general law duty of the Ambulance Service was to similar effect.

67 In my opinion the Ambulance Service is not immune either by statute or at common law from a suit for damages brought against it for breach of contract or in tort.

The cause of the haemorrhage

68 Mr Worley’s case is that the cerebral haemorrhage occurred as a direct result of the administration of adrenaline. The repeated doses, he says, raised the blood pressure higher and higher and caused an artery to rupture and bleed.

69 Professor Howes is professor of pharmacology, physiology and medicine at the University of New South Wales and practises as a consultant clinical pharmacologist at St George Hospital. He manages patients suffering from hypertension and cardiovascular disease, especially after strokes and heart attacks.

70 Professor Howes saw the scans taken on 19 October 1998. He observed that the haemorrhage occurred in a part of the brain associated with haemorrhages caused by high blood pressure and that adrenaline was the only drug administered that would raise blood pressure. He thought that the location of the haemorrhage, the administration of adrenaline a short time before Mr Worley began to experience symptoms and the probable effect of adrenaline upon his blood pressure showed that the haemorrhage resulted from the rupture of an artery consequent upon the hypertensive effect of adrenaline.

71 Although there is no doubt that the intravenous administration of adrenaline may rapidly increase blood pressure, it is not possible to say to what degree it may do so in any particular case if it is given in boluses. Professor Howes has studied cardiovascular responses to the administration of adrenaline and noradrenaline. The two molecules are closely related and have the same pharmacological effects. His work has been conducted in hospital. His technique has been to give carefully measured continuous intravenous infusions, using very small amounts of adrenaline or noradrenaline. The effects are precisely known, but cannot be used to calculate the probable effect on Mr Worley of the adrenaline administered to him. There are several reasons why that is so, particularly that the drug was administered in boluses and because the doses used were much higher than those used by Professor Howes.

72 It is not possible to demonstrate by experiment how boluses of the size and frequency of those given to Mr Worley may affect blood pressure. To do so would be unethical. However, it is possible to theorise, and Professor Howes produced graphs to demonstrate how he thought blood pressure might behave under the influence of successive boluses like those given to Mr Worley. He postulated that each successive bolus would act on blood whose pressure had already been elevated by the preceding bolus (given that the boluses were administered at intervals of 30 seconds, well within the half-life of adrenaline, which is between 1 and 2 minutes) and would therefore lead to a pressure higher than that produced by the preceding bolus. So he postulated a series of curves representing blood pressure, the second, third and fourth of which started higher than the previous starting point and produced a higher maximum than that shown by the previous curve. He postulated that Mr Worley’s blood pressure probably behaved in such a manner. He thought that his blood pressure might have exceeded 200 systolic.

73 The only neurologist called was Dr Watson, Director of the Neuropsychology Unit and Coordinator of Stroke Services at Royal Prince Alfred Hospital. The unit he directs is concerned with the assessment of patients with acquired brain damage. Dr Watson saw scans taken on 19 October 1998 – the one taken on 8 October had gone missing. He said that the scans showed relatively fresh bleeding into the left internal capsule. The bleed was 2 to 2.5 centimetres wide and the same distance from front to back. The larger size than that demonstrated by the scan of 8 October might be explained, he said, by the more sensitive technique used and by bleeding between times.

74 His opinion was that the source of the bleeding was a single, small, vertical vessel called a lenticulostriate artery. Such vessels lead off the middle cerebral artery and supply blood to the surrounding grey matter.

75 One feature of lenticulostriate arteries which makes them susceptible to rupture is that they are narrow and without much protective coating, not tapering much distally, but coming off a relatively large artery. There is not at such junctions the gradual reduction in diameter that occurs in other parts of the arterial system, so such arteries are prone to carry blood at higher pressure than occurs in many other arteries in the body. This was an opinion generally shared by Professor Howes.

76 Dr Watson was of the opinion that the haemorrhage was a primary, by which he meant hypertensive, haemorrhage. It could have lasted from a matter of seconds to minutes and perhaps even to hours. He observed in that connection that the size of the bleed had increased over the twelve days between scans.

77 The symptoms from such a haemorrhage, he said, begin and develop as the bleed progresses. There may be no symptoms at first and the patient will begin experiencing symptoms when and to the extent that nerve tissue is destroyed or impaired.

78 Dr Watson was of the opinion that Mr Worley’s blood pressure would have been at its highest within a very short time after the administration of the fourth bolus which, judging by the Patient Report Form, was at 12:23:30pm. The bleed probably commenced at 12:24 or 12:25pm. It was caused by the increase in blood pressure which resulted directly from the administration of the adrenaline.

79 Dr Vinen is an emergency physician. He was appointed Head of the Emergency Department of Royal North Shore Hospital in 1987. His experience in emergency medicine is considerable. He expressed the opinion that the intracerebral haemorrhage occurred as a result of the intravenous administration of adrenaline. He considered in view of the location of the haemorrhage that the most likely cause was a hypertensive event. He accepted that Mr Worley’s blood pressure probably peaked shortly after the administration of adrenaline in the manner postulated by Professor Howes.

80 Professor Rosen is perhaps the foremost American emergency medicine specialist. He was the author and is an editor of Rosen’s Text Book on Emergency Medicine, the most widely used textbook in emergency training programs in the United States of America and Canada. The text is widely used elsewhere in the world. Professor Rosen considered that the intracerebral haemorrhage happened when a vessel burst under blood pressure elevated by the effect of the adrenaline.

81 Professor Morgan, professor of neurosurgery, University of Sydney, was of the same opinion.

82 The Ambulance Service called evidence from a number of experts on the cause of the haemorrhage. Professor Malcolm Fisher is head of the Intensive Therapy Unit at Royal North Shore Hospital. He has a special interest in anaphylaxis and has written many papers about it. He agreed that adrenaline is dangerous in large doses. He had seen cardiac arrest and headache follow upon the administration of such doses. He had seen a very short hypertensive episode in a patient having arterio-venous malformation but had never seen hypertensive intracerebral haemorrhage resulting from the administration of adrenaline. He acknowledged that there were records of its having happened and that it was a known risk.

83 He disagreed with Professor Howes’ theory about the peaking of blood pressure at a high level shortly after the administration of the four boluses of adrenaline. He thought that blood pressure probably increased in a linear progression. He described as “mischievous” Dr Vinen’s suggestion that hypertension severe enough to cause an intracerebral bleed could have occurred early after administration of adrenaline and gone away before the next measurement of blood pressure.

84 Professor Fisher thought that there was no evidence for a conclusion that excessive blood pressure had led to an intracerebral bleed.

85 Dr Raftos is Senior Specialist in Emergency Medicine at St Vincent’s Hospital and Director of Emergency Medicine at Sutherland Hospital. He has held those positions for years and is highly experienced in the practice of emergency medicine.

86 Dr Raftos agreed with Professor Fisher’s opinion that blood pressure probably increased incrementally in a linear fashion. He thought a transient significant elevation of blood pressure unlikely. He thought that the bleed might have resulted from the stress of the anaphylactic reaction on diseased blood vessels. He pointed out that Mr Worley was overweight and had been a smoker for a long time. Another possibility was a hypotensive stroke, followed by bleeding into the infarct.

87 Professor Fulde is director of Emergency Medicine at St Vincent’s Hospital and Sydney Hospital. He is highly experienced in the practice of emergency medicine. In more than 20 years of emergency practice he has not seen a brain haemorrhage caused by a dose of adrenaline. He wondered whether the bleed was the result of a hypotensive stroke.

88 Dr Ian Spence is an Associate Professor in Pharmacology in the faculty of Medicine at the University of Sydney. He is a scientist, not a physician, and has not treated human beings, though 20 years ago he injected primates with adrenaline. He expressed the opinion that there was no “spike” of the kind contended for by Professor Howes. He thought that headache could have resulted from the release of histamines consequent upon the sting, with the greatest concentration some time after the sting, though he expressly disclaimed expertise in the matter.

89 He agreed that it was reasonable to say, given the temporal connection between the administration of adrenaline and the onset of the headache, that the headache was associated with the adrenaline and the haemorrhage rather than with the sting.

90 So there are three possible ways in which the haemorrhage could have been caused: a rupture of the vessel under the hypertensive effect of adrenaline, a rupture under the hypertensive effect of the stress of the sting and the subsequent anaphylactic reaction and a hypotensive stroke with a subsequent bleed into the infarcted tissue.

91 There is no evidence of malformation of Mr Worley’s intracerebral blood vessels. I accept the evidence of Dr Watson that no malformation appears on the scans. Mr Worley was overweight, had smoked for years and was routinely treated for high blood pressure, but that condition was under control. This evidence does not to my mind point to any of the possible causes as being more likely than the others.

92 In my opinion the most striking evidence is that of the times at which things happened. It is significant that a substantial quantity of a hypertensive agent was administered so as to take effect, say, by 12:24pm and that the first of the symptoms of the haemorrhage, the violent headache, came on soon after 12:30pm. The headache may have occurred as soon as bleeding commenced or within a short but indeterminable time afterwards. There is evidence of a possible mechanism, namely a temporary elevation in blood pressure, which may not have been detectable at 12:30pm.

93 The evidence implying a hypertensive rupture consequent on the stress of the sting and the resulting anaphylaxis is unimpressive. The times of events are against such a conclusion. The sting happened at least an hour before the headache came on and the blood pressure is shown to have dropped between those events. I am satisfied that the haemorrhage did not happen in that way.

94 I reject the third possible explanation on the evidence of Dr Watson. He is the expert in the field. He said this –

The haemorrhagic stroke here, or the primary cerebral haemorrhage in this case is in no way to be confused with an ischaemic cerebral infarction as one might see from time to time with exceedingly low blood pressure. It is not related because they are different mechanisms. In this particular case the brain imaging is completely different and the site is very unusual, not totally impossible but very unusual for a low pressure related infarction. The site in the brain and even the conformation, the shape. There is a primary cerebral haemorrhage and not cerebral infarction or even haemorrhage into a cerebral infarction, which can occur as a later event.

95 I conclude that Mr Worley’s blood pressure rose in response to the adrenaline administered by Mr Page. It probably reached a level significantly higher than that recorded at the next reading – 90 systolic at 12:30pm. It is possible that it reached the levels of 200 systolic and more postulated by Professor Howes, but I cannot confidently find that it did. I conclude that the haemorrhage occurred when the lenticulostriate artery ruptured under the influence of the raised blood pressure.

96 It would be artificial to reason that the only causal dynamic was the pressure of the blood within the artery, however. Assuming for the moment that the blood pressure reached 200 systolic or more, it must be observed that patients commonly experience such levels of blood pressure without ill effects. While I accept that the artery was not predisposed by malformation to rupture I cannot say what there was about it, apart from the blood pressure, that made it rupture. But there was probably something about its condition. Mr Worley was middle-aged and overweight and had been a heavy smoker for years. His medical records show that his systolic blood pressure had been measured over the previous twelve years at between 110 and 146 systolic, but mainly in the range 130 to 140 systolic. The blood pressure resulting from the administration of adrenaline may not have risen higher or much higher than those levels. So I am satisfied that the administration of adrenaline was the cause or one of the causes of the haemorrhage.

The Safety, Rehabilitation and Compensation Act

97 By its amended defence, the Ambulance Service set up a defence under the Commonwealth Safety, Rehabilitation and Compensation Act 1988, pleaded as follows –

9. Further, and in addition and in answer to the whole of the Statement of Claim, the Defendant says that the Plaintiff’s injury, loss and damage occurred in circumstances entitling the Plaintiff to receipt of compensation payments pursuant to the Safety Rehabilitation and Compensation Act 1988 (“compensation”).
10. The plaintiff has received and continues to receive compensation.
11. The entitlement to and payment of the compensation arose by reason of the Plaintiff, during the course of his employment on 7 October 1998, being stung by a bee or other insect.
12. The Plaintiff is under no obligation to repay out of damages (if any) recovered in these proceedings, any compensation paid or payable pursuant to the Safety Rehabilitation and Compensation Act 1988.
13. The Plaintiff’s entitlement to damages (if any) is to be reduced by the amount of compensation already paid and payable pursuant to the Safety Rehabilitation and Compensation Act 1988.

98 One of the purposes of the Safety Rehabilitation and Compensation Act is to provide for the payment of workers’ compensation for employees of the Commonwealth. Section 68 establishes a body called Comcare. Section 69 gives Comcare functions, including the function of determining claims made to it under the Act. Section 14 makes Comcare liable to pay compensation for an injury suffered by an employee that results in death, incapacity for work or impairment.

99 Section 4 defines injury as meaning, inter alia, an injury…suffered by an employee…arising out of or in the course of the employee’s employment.

100 Relevantly, s6 provides –

(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

…

(b) while the employee:
(i) was at his or her place of work, for the purposes of that employment…
…

(iv) was travelling between one of his or her places of work and another of his or her places of work;

…

(vii) was travelling between his or her place of work or place of residence and any other place for the purpose of:
…
(B) receiving medical treatment for an injury;

…

(viii) was at a place for a purpose referred to in subparagraph (vii).

101 Part V deals with claims for compensation. Section 53 provides that the Act does not apply to an injury to an employee unless written notice of the injury is given as soon as practicable after the employee becomes aware of it. Section 54 provides that compensation is not payable unless a written claim for compensation is made.

102 Part VI deals with the reconsideration and review of determinations. The term “determination” is defined to include a determination under s14.

103 Relevantly, s61 provides –

(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:

(a) the terms of the determination;

(b) the reasons for the determination;

…

104 Relevantly, s62 provides –

(1) A determining authority may, on its own motion:

(a) reconsider a determination made by it; or

(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

105 Section 50 deals with common law claims against third parties. Relevantly, it provides -

(1) Where:

(a) an amount of compensation under this Act:

(i) is paid to an employee in respect of an injury to the employee…
…

(b) the injury…occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury…; and

(c) a claim against the person for the purpose of recovering such damages has not been made by the employee…

Comcare may make a claim…against the person in the name of the employee…for the recovery of damages in respect of the injury…

…

(7) Any damages obtained as a result of a claim made… by Comcare under this section (including damages payable as a result of the settlement of such a claim) must be paid to Comcare and Comcare must deduct from the amount of those damages:

(a) an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury…which the claim relates; and

(b) the amount of any costs incidental to the claim paid by Comcare.
Comcare must pay the balance (if any) to the employee or dependant.
(8) Where Comcare pays an amount to an employee…under subsection (7), the employee…is not entitled to receive any further amounts of compensation under this Act in respect of the injury…to which the proceedings related until the amount of compensation that would, but for this subsection, have been payable to the employee…in respect of that injury… equals the amount paid by Comcare to the employee…under subsection (7).

106 Part VIII sets up a scheme for the licensing of Commonwealth entities to accept liability for and manage claims made by employees. Managing claims admitted includes administrative action taken after determining claims. Australia Post was a licensee under the Act and dealt with Mr Worley’s claims accordingly.

107 On the day that Mr Worley was stung an Accident Report Form was completed on his behalf. The first page, which was required to be completed by the employee concerned or by the employee’s nominated representative, was filled in by Mr Cameron. The remaining pages were filled in by Mr Cameron as Supervisor and by another Officer, Mr Mifsud-Bonnici. It seems reasonable to suppose that the form was completed in the absence of Mr Worley after he had been taken to hospital.

108 The date and time of the “incident” were recorded as 7 October 1998 at 11:15am. The symptoms are described as –

Muscular pain, faint, out of breath.

109 The part of the body affected was described as –

Left side of neck.

110 The name of the person giving initial treatment was stated as –

Ambulance on 7.10.98 at 12:25pm.

111 The description of how the incident happened was as follows –

While delivering mail was stung by bee/wasp felt pain & returned to office.

112 The form did not record what treatment was administered and there was no mention of the intracerebral haemorrhage. The implication is that those who filled it in did not know about the haemorrhage.

113 An associated form, which had to be sent with it, called “Claim for Compensation – Witness Statement” established that the incident was not witnessed. That form was completed by Mr Mifsud–Bonnici. He stated the time and date of the incident as 11:00am on 7.10.98 and, by ticking a box, answered “yes” to the question: Did he/she appear to be free of injury/illness?

114 On 15 October 1998 Mr Worley signed a form entitled “Claim for Rehabilitation and Compensation”. The form recorded that the “injury” happened on 7 October 1998 at 12:00pm (sic) and that it had been reported to Mr Cameron on the same day at 12:30pm. The injury was described as –

Bee sting stung on neck.

115 A form called “Request for Rehabilitation Service” completed on the same day stated the name of the doctor as –

Mt Druitt Hospital, Dr Underwood.

116 The “problem/injury” was stated to be –

Bee Sting

Allergic Reaction

117 Under the heading “Comments” there were these entries –

Allergic Reaction to Bee Sting

Hospitilised (sic)

Toxic Shock

118 The form was unsigned but bore the name and designation as “referrer” of a person I take to have been an officer of Australia Post.

119 On 22 October 1998 Australia Post wrote a letter to Mr Worley saying this in part –

SAFETY, REHABILITATION AND COMPENSATION ACT 1988
I refer to your claim for compensation in respect of bee sting, stung on neck.
On the basis of the evidence available I have found liability under section 14 in respect of anaphylactic reaction to bee sting (toxic shock) sustained on 7.10.98. I have also approved payment of compensation under section 19 for the following period(s) you were unfit for work because of your injury:

PERIOD	WEEKLY RATE
8.10.98 to 30.11.98	100% Normal Weekly Earnings = $956.12

Payment of associated medical expenses will be made by cheque as soon as possible.

120 On 5 November 1998 Australia Post wrote to Mr Worley a letter which included the following passages –

SAFETY, REHABILITATION AND COMPENSATION ACT 1988
I refer to your claim for compensation and the initial determination dated 22/10/98 which accepted liability under section 14 of the Act in respect of anaphylactic reaction to bee sting sustained on 7/10/98.
On the basis of the evidence available I have amended the initial determination dated 22/10/98 and found that Australia Post is liable to pay you compensation under section 14 of the Act in respect of intra cerebral haemorrhage resulting from the administration of adrenaline following an anaphylactic reaction sustained in the course of your employment on 7/10/98.

121 Australia Post records show that between 6 November 1998 and 1 April 2004 it approved and paid accounts for hospital, medical, rehabilitation, transport, pharmaceutical and other goods and services totalling $108, 441.94. Australia Post also determined Mr Worley’s incapacity for work from 8 October 1998 to 22 September 2004, for which it paid $248, 548.51.

122 In written submissions, counsel for the Ambulance Service asserted and counsel for Mr Worley impliedly accepted that the claim had been brought by Australia Post in Mr Worley’s name under the provisions of s50.

123 The Ambulance Service asserts that Mr Worley’s entitlement to damages is to be reduced by the amount of compensation paid and payable by Australia Post because he is not obliged to repay it out of any damages he recovers. The submission depends on the distinction between the bee sting and its consequences and the administration of adrenaline and its consequences.

124 It was submitted that any claim so made by Australia Post had to be “in respect of the injury” as provided by subs 50(1). “The injury” meant the one Mr Worley sustained while he was riding his motor cycle. Australia Post accepted liability under s14 for the anaphylactic reaction to the bee sting. Compensation benefits were paid because of the bee sting injury sustained in the course of Mr Worley’s employment. The mechanism and cause of injury were as identified on Australia Post’s claims records as “contact/expose – bite/sting” and “animal/live other insect”.

125 However, the claim made by Australia Post was for another injury, namely one in which the administration of adrenaline in the course of medical treatment led to an intracerebral haemorrhage which incapacitated Mr Worley.

126 It was submitted that Mr Worley suffered an injury, a bee sting and its consequences, and that compensation was paid for that injury. Compensation was not paid for any adverse sequelae of the intravenous administration of adrenaline. The bee sting gave rise to no liability on the part of the Ambulance Service. So the only damages recoverable were those “in respect of the injury”, that is, the bee sting.

127 If Mr Worley recovered damages for the consequences of the administration of adrenaline he would be compensated twice, because Australia Post had not compensated him for the consequences of that event but only for the consequences of the bee sting. He would not therefore have to account to Australia Post for any damages recovered. Reference was made to Franklins Self Serve Pty Limited v Wyber [1999] NSWCA 390.

128 It is not suggested that Australia Post might not have been liable to pay compensation to Mr Worley for the consequences of the administration of adrenaline or that “injury” might not have been defined by reference to that event or that a determination could not have been made for an injury so defined. What is submitted is that the case should depend on the precise terms of the determination of 22 October.

129 I am satisfied that, save for the limited effects of the bee sting, none of which was manifest after 8 October 1988, Mr Worley’s incapacity resulted from the intracerebral haemorrhage, which was caused by the intravenous administration of adrenaline. I am satisfied that Australia Post has paid Mr Worley, by its several determinations made under the Act, for that incapacity.

130 Assuming that Mr Worley makes good his case against the Ambulance Service, if the injury under which the determination was made and compensation paid and the injury in respect of which this claim is brought are the same injury, no question arises about Mr Worley’s obligation to repay Australia Post out of damages recovered, for subss 50(7) and (8) will apply. So Australia Post will receive back what it has paid and Mr Worley will receive only the difference between the amounts received and deducted by Australia Post, representing damages not covered by compensation under the Act. Mr Worley will not have been unjustly enriched.

131 I do not find Franklins Self Serve Pty Limited v Wyber of assistance. It says nothing about the construction of s50. The Court in that case had to consider the effects of s151Z Workers Compensation Act (NSW), which is significantly different from s50.

132 When the determination was made, Australia Post knew that Mr Worley had been in hospital and that there were medical expenses associated with his confinement and treatment. It knew that as things then stood Mr Worley had been and would be unfit to work for the period 8 October 1998 to 30 November 1998. Although Mr Worley was rendered unfit by the bee sting, that unfitness was confined to a period of time on 8 October 1998. Mr Worley’s unfitness otherwise resulted from the intracerebral haemorrhage. Australia Post must have known that and must have intended by its determination to acknowledge its responsibility for the consequences of the intracerebral haemorrhage.

133 In my opinion the letter determined Mr Worley’s entitlement to compensation for that incapacity, however the cause might be described, and that it was the intention of Australia Post to compensate him for that incapacity, however the cause might be described. Australia Post had no reason to wish to distinguish between the discrete effects of the bee sting and of the intracerebral haemorrhage. The terminology of the letter of determination does not suggest that the officer who wrote the letter was concerned with any precise analysis of the case. On the contrary, the expressions used in the letter are taken from originating documents. I think that Australia Post must have regarded the two incidents as one or as combining to produce the incapacity for which it had determined to compensate Mr Worley.

134 The description of the cause in the letter of 22 October was formally incomplete in that it did not refer to the intracerebral haemorrhage, and clarification might have been needed. No doubt it was for more abundant caution that the initial determination was formally amended on 5 November 1998, but the amendment was of form and not of substance and I doubt whether it was necessary.

135 In any event, the amendment of the determination was in my opinion effective. Section 62 gave Australia Post the power to amend without any request or application by or on behalf of Mr Worley.

136 It was submitted by the Ambulance Service that Australia Post could not purport to amend the determination by redefining the injury to mean intracerebral haemorrhage. Reference was made to Lees v Comcare [1999] FCA 753, where it was pointed out that a valid determination depends, inter alia, on a finding that an appropriate Notice of Injury has been given as required by s53. The point made by the Ambulance Service is not that no Notice of Injury was given but that the Notice of Injury that was given dealt with a different injury. I do not accept that it did. Notwithstanding the limited description of the injury in the Notice of Injury it was, I think, apt to cover the consequences of treatment for that injury.

137 In my opinion the injury for which Mr Worley has been and will be compensated by determinations under the Act and the injury for which Australia Post has brought this claim are the same. There is no substance in paras 9-13 of the defence.

Breach of duty

138 The particulars of negligence pleaded by Mr Worley are these –

(i) Failing to administer the adrenaline to the plaintiff intramuscularly.
(ii) Failing to administer the adrenaline to the plaintiff subcutaneously.
(iii) Failing to ensure that the adrenaline administered to the plaintiff was not administered too rapidly having regard to the plaintiff’s condition.
(iv) Failing to ensure that excessive amounts of adrenaline were not administered to the plaintiff having regard to his condition.
(v) Failing to follow widely accepted practices in the administration of adrenaline for the treatment of anaphylaxis.
(vi) Failing to follow accepted and recommended medical and pharmacological practice in the administration of the adrenaline.
(vii) Failing to ensure that the treatment protocol followed and adopted recommended and accepted medical and pharmacological practice for the administration of adrenaline.
(viii) Failing to monitor or correctly monitor the condition of the plaintiff.
(ix) Failing to carry out any proper assessment of the condition of the plaintiff.
(x) Failing to rely upon medical advice.
(xi) Res ipsa loquitur.

139 In addition, Mr Worley pleads that in breach of an implied term of a contract between him and the Ambulance Service, it failed to treat him properly and competently and to administer medication according to accepted medical and pharmacological practice and thereby exposed him to injury. The claim in contract is otherwise unparticularised and is not, I think, different from the claim in negligence.

The Protocols

140 It is convenient first to consider the protocols which applied, how they came into existence and whether Mr Page and Mr Parsell treated Mr Worley in accordance with them.

141 There is a committee of the Ambulance Service called the Medical Advisory Committee. Its functions include –

1. To provide specialist medical advice to the Ambulance Service of NSW.
2. To consider and recommend clinical protocols for ambulance officers.
3. To recommend policy on clinical matters, including such matters as infection control, clinical notes, clinical practice and education.
4. To advise on effective clinical quality management processes through the Medical Director and senior uniformed staff.

142 The Medical Advisory Committee has a sub-committee called the Protocol Committee.

143 Dr Antony John O’Connell gave evidence. He has been Chairman of the Medical Advisory Committee since 1996. At all material times the committee has met once per month. It refers to the Protocol Committee the drafting of new protocols and changes to existing protocols. It considers drafts prepared by the Protocol Committee and approves them, modifying them as it considers appropriate, and disseminates them to the Board of the Ambulance Service. Although the Board has the ultimate discretion about whether to introduce or change protocols so submitted, it seems that the advice of the Medical Advisory Committee is generally followed.

144 The membership of the Medical Advisory Committee was as follows in 1997 – 1998 –

1. Appropriately qualified and experienced medical practitioners (numbers to be determined by the Committee and Medical Director)
2. Appropriately qualified nursing representative
3. Medical Director of the Ambulance Service
4. State Superintendent of the Ambulance Service
5. Director of Ambulance Service education
6. Quality Manager of Ambulance Service
7. Health Department representative (Medical practitioner from Office of Chief Health Officer)

145 Protocols are drafted according to the understanding of the members of the Medical Advisory Committee and the Protocol Committee of the practice in medicine in New South Wales from time to time. They take into account the range of knowledge, ability and authority of the ambulance officers likely to use them.

146 During 1997–1998 there were 1,970 ambulance officers whose duty it was to deal with patients according to the protocols issued by the Ambulance Service. Officers are graded in 5 levels, according to their knowledge and experience. Recruits, of which there were 155 in 1997 – 1998, are first trained in class for 7 weeks, learning the elements of anatomy, physiology, pathophysiology and pharmacology. There follows a 9 month period of training on probation on the job. Successful officers gain promotion through class instruction, testing and assessing and training in hospital and on the road. The lowest grade of officer is level 1 and the highest level 5. The higher the level of grading the more responsibility an officer may undertake. So more senior officers carry out more advanced or difficult procedures in treating patients and may, for example, administer medicine which their juniors may not.

147 Each officer has a set of protocols. Each set is kept up to date. Each officer is required to follow the requirements of the protocols. There is no discretion to do otherwise. Each officer who attends a patient is required to sign a completed Patient Report Form. The form must list by number the protocols that apply.

148 In 1997-1998 the protocols included number 3, called Urgent Transport, number 8, called Anaphylactic Reactions, and Pharmacology 201, called Adrenaline. I have set out earlier in this judgment the relevant portions of the Anaphylactic Reactions and Adrenaline protocols. The protocols complemented one another, so they had to be read together.

149 The protocols use medical terminology. Ambulance officers are taught by medical practitioners and others who use medical terminology. They are expected to know the meaning of medical terms used in the protocols.

150 The Latin term in extremis means “at the very point of death”, “in the last agonies” (Oxford English Dictionary, Second Edition). When the term is used by emergency medical practitioners it describes patients who will die if not resuscitated by means taken there and then. All the medical practitioners who gave evidence, including Dr O’Connell, agreed with some such definition.

4.3 Epinephrine (adrenaline) should be administered intramuscularly to all patients with clinical signs of shock, airway swelling, or definite breathing difficulty, and will be rapidly absorbed. Manifestations such as inspiratory stridor, wheeze, cyanosis, pronounced tachycardia, and decreased capillary filling alerts the physician to the likelihood of a severe reaction. For adults, a dose of 0.5ml epinephrine (adrenaline) 1:1000 solution (500micrograms) should be administered intramuscularly, and repeated after about five minutes in the absence of clinical improvement or if deterioration occurs after the initial treatment especially if consciousness becomes – or remains – impaired as a result of hypotension. In some cases several doses may be needed, particularly if improvement is transient.
…
4.4 Intravenous epinephrine (adrenaline) in a dilution of at least 1:10 000 (never 1:1 000) is hazardous and must be reserved for patients with profound shock that is immediately life threatening and for special indications, for example, during anaesthesia. The injection should be given as slowly as seems reasonable while monitoring heart rate and the electrocardiogram. Electrocardiographic monitoring is mandatory if epinephrine (adrenaline) is given intravenously. Note also that a further 10-fold dilution to 1:100 000 epinephrine (adrenaline) allows finer titration of the dose and increases its safety by reducing the risk of unwanted adverse effects and dangerous complications.

214 All the papers I have mentioned deal with treatment in hospital, not in the field. That is significant because in hospital a sensitive and reliable control can be established for the titration of intravenous adrenaline. It is otherwise in the field. Ambulance protocols are likely to give a better idea of the standards that might be thought to have applied to such treatment in October 1998.

215 In October 1997 the Ambulance Service of Victoria published a clinical practice guideline which provided, where perfusion was adequate, borderline or inadequate, for an initial dose of 0.3mg in a 1:1,000 solution intramuscularly, with increments every 5 minutes until satisfactory results were obtained or side effects appeared. Intravenous administration was prescribed when perfusion was extremely poor, at the rate of 0.3mg of a 1:10,000 solution with increments of 0.1mg every minute until there were satisfactory results or side effects.

216 The term “extremely poor perfusion” was defined as pulse rate less than 50-60 or greater than 110 per minute and blood pressure 60-80 systolic, with altered consciousness or loss of consciousness.

217 By that definition Mr Worley would have qualified for borderline or inadequate but not for extremely poor perfusion.

218 The guidelines incorporate a discretion to depart from the guidelines on medical consultation.

219 In May 1998 the Queensland Ambulance Service prescribed 0.5mg subcutaneously or intramuscularly, repeated every 5 minutes with a maximum of 1mg. The same publication prescribed 0.1mg per minute intravenously with a maximum of 2mg.

220 The Australian Capital Territory Ambulance Service protocol of October 1998 provided for up to 0.01mg per kilogram of body weight intravenously, slowly until the condition improved, there were side effects or the total dose had been administered. The evidence does not enable me to say what total dose was specified.

221 The London Ambulance Service protocol of April 1993 permitted only intramuscular or subcutaneous administration.

222 The New Zealand Ambulance Service protocol of 29 January 2004 permitted the administration of 0.1mg intravenously, repeated every minute.

223 The evidence shows that in October 1998 most practitioners were advocating or practising intramuscular or subcutaneous administration in all cases that were not life-threatening. The proponents of intravenous administration for other than life-threatening cases envisaged tightly controlled administration of well-diluted solutions in hospital.

224 Of the Ambulance Services, New South Wales did not permit the administration of adrenaline at all where the patient’s life was not in danger. The position in Victoria was not significantly different: Mr Worley would have qualified only for intramuscular administration in that State. In Queensland only 0.1mg/min was permitted intravenously but the evidence does not enable me to say what conditions had to be met before that was permitted (the protocol also prescribed intramuscular administration).

225 In the Australian Capital Territory up to 0.01mg per kilogram was permitted to be administered intravenously but the evidence does not enable me to say whether and what conditions had first to be met.

226 Insofar as there is evidence of it, I do not consider that the American or the European practices are of any assistance, because medical practices are likely to have been different in those places.

227 I conclude that most practitioners would not have treated Mr Worley intravenously at the Mail Delivery Centre and that any who did would have paid very careful attention to the rate at which the several aliquots were administered and the response of the patient between the administration of those aliquots.

228 That brings me to the size and timing of the dose administered to Mr Worley and what, if anything, Mr Page did as he treated him. He administered 4mL in a 1:10,000 solution in four equal amounts at 30 second intervals. The whole dose was administered in 90 seconds.

229 I have already referred to the extract from the Tintinalli text. Counsel for the Ambulance Service put to Professor Rosen that the dose there advocated was precisely that which Mr Page administered to Mr Worley, namely 0.3-0.5mg in a 1:10,000 solution. It scarcely supports the Ambulance Service Case, however. The extract is virtually a précis and raises as many questions as it answers. It is as follows –

Treatment begins with attention to the airway. A high flow of oxygen via face mask and immediate administration of epinephrine are indicated. If signs of shock are present, intravenous administration of 0.3 to 0.5mg of a 1:10,000 solution is preferred. If immediate intravenous access cannot be obtained, injection into the venous plexus at the base of the tongue may provide the most rapid access. Endotracheal administration is also an alternative to intravenous access if the airway has been established. Subcutaneous administration of 0.3 to 0.5mg of a 1:1 000 solution is indicated if there is no significant circulatory compromise.

230 The statement does not define shock and does not otherwise specify whether any other symptom needs to be present to justify intravenous administration. It does not state what, if any, aliquots should be administered or at what frequency.

231 In his paper Anaphylactic Shock: Mechanisms and Treatment published in Emergency Medicine in 1994, A.F.T. Brown said this about the intravenous dosage of adrenaline –

Unfortunately, the correct dosage and route of administration of adrenaline have been a source of confusion and conflict in the medical literature. For instance, the British National Formulary recommends 0.5-1.0mg or 0.5-1mL of 1 in 1000 adrenaline, administered intramuscularly, as the standard initial adrenaline regime in anaphylaxis. In the USA, 0.3-0.5mg of 1 in 1000 adrenaline, administered subcutaneously, is recommended. In Sweden, 0.5-0.8mg administered subcutaneously, is recommended. The clinical effectiveness of these dose variations is not well defined, nor is there convincing evidence for any difference in effect between the subcutaneous and intramuscular routes. The use of intravenous adrenaline in anaphylaxis is confounded by an even wider variation in proposed doses ranging from 1microgram min to a 2-mg bolus. Many authors conclude that the use of intravenous adrenaline is too dangerous and rarely if ever justified, as it causes cardiac arrhythmias, myocardial ischaemia and severe hypertension. However, cases cited from the literature to substantiate these claims fail to discuss the speed of delivery and concentration of the intravenous adrenaline administered, or to raise the possibility that other causes, such as hypoxia, hypotension, acidosis and direct mediator effects may have been responsible for the cardiovascular complications.
Fisher’s leader in the British Medical Journal in 1992 discussed the issues concerning the relevance and safety of intravenous adrenaline in anaphylaxis. He noted that no one route of administration is likely to be right in all cases, and that the timing of administration of the drug may be critical. He suggested that, as vasodilatation is the main pathological change early in anaphylaxis, this enables the subcutaneous or intramuscular absorption of adrenaline to be rapid and effective. Thus, when the disease is treated early and is progressing slowly, or venous access is difficult or the patient is unmonitored, intramuscular adrenaline has advantages in terms of safety and is usually effective. Later, when intravascular volume is depleted and shock occurs, or there is severe dyspnoea or airway compromise, the intravenous route is necessary to achieve optimal absorption. In addition, Fisher considered that, in most cases, the recommended published intramuscular or subcutaneous doses were too high.
He advised doses of 0.3-0.5mg of 1 in 1000 adrenaline administered subcutaneously or intramuscularly, and he recommended that the standard intravenous dose should be up to 3mL of 1 in 10 000 adrenaline administered slowly. Fisher concluded with the diplomatic assertion that ‘in severe anaphylaxis adrenaline by any route is better than none’.

232 Dr Rosen would have prescribed up to 5mL over 3 to 5 minutes.

233 Without exception those who advocate the intravenous administration of adrenaline, whether by a continuous titrated solution in hospital or in aliquots in the field, require the patient’s condition to be monitored. All the authorities require the practitioner to be on the lookout for the desired improvement in the patient’s condition and for the development of side effects. Either will indicate a reduction in the rate of administration or its cessation.

234 Dr Vinen observed that the rate at which Mr Page gave Mr Worley did not allow him time to observe and assess his response. Mr Parsell said that he was standing next to Mr Page, preparing equipment from the drug kit, and saw him looking at his watch. After he administered one aliquot he would wait for 30 seconds. Mr Parsell could not recall what Mr Page was doing with the hand that was not holding the syringe, but generally, he said, it would be placed on the radial artery of the arm in which the cannula was positioned, to detect any change in the pulse pressure. At the same time, either officer could listen to the electrocardiogram machine, which emitted a tone. The frequency of the tone would rise or fall with the pulse rate.

235 The evidence of Mr Parsell confirms what Dr Vinen said. There was no attempt to find out whether the aliquots that were given to Mr Page were having any effect on Mr Worley’s blood pressure. It was not until 8 minutes after beginning to administer the adrenaline and 6.5 minutes after ceasing to administer it that Mr Page next recorded the blood pressure. Each successive aliquot was administered with next to no idea whether the preceding one had had any effect.

236 Dr Vinen commented on the amount and timing of the dose, observing that it was between 2 and 8 times faster than that recommended by the Australian Medical Handbook (0.5-1mL every 1-2 minutes). All the authorities that permitted as much as 5mg to be administered required the administration to be extended over several, up to 10, minutes.

237 In my opinion the dose of 4mg was, by any standard, massively concentrated when given over 90 seconds. That, of course, is not surprising, because the dose was prescribed for a patient whose perfusion was so bad that he or she was about to die.

238 Professor Rosen agreed with Dr Vinen. He said that ECG monitoring was insufficient and that the officers should have measured blood pressure between the administration of the aliquots. There was no attempt to do so or, apparently, any attempt to see whether bronchospasm had been relieved or whether there was any other improvement.

239 Professor Fisher agreed that blood pressure should have been monitored. He said that the person treating might want to suspend treatment.

240 Dr Raftos agreed that the rate was 6 to 10 times faster than recommended in Rosen. He agreed that blood pressure should have been monitored.

241 Dr Sutherland said that there was no need to monitor blood pressure. Measuring it at 5 minute intervals would have been reasonable. I disregard that opinion and prefer the opinions of the other expert witnesses I have mentioned.

242 In my opinion Mr Page administered too much adrenaline far too fast and without any regard for the consequences. He took a dosage rate from a protocol that applied only to a dying person who had to have adrenaline by the fastest possible means without regard for the risks involved. He administered that dose to a man who was only mildly hypotensive, far better perfused than any patient contemplated by the protocol. He thereby exposed Mr Worley to an unnecessary and unreasonable risk of injury. He failed to monitor the blood pressure between aliquots but pressed on without knowing what effect the adrenaline was having on blood pressure. He was negligent in doing so.

243 I am satisfied that blood pressure rose to a significant degree before falling to 90 systolic at 12:30pm. I am satisfied that on the balance of probabilities that if Mr Page had chosen to administer smaller or more widely spaced aliquots Mr Worley would not have suffered the intracerebral haemorrhage. If Mr Page had measured the blood pressure between aliquots and stopped administration when he detected an increase, Mr Worley would not have suffered the intracerebral haemorrhage. Mr Worley is entitled to recover damages from the Ambulance Service.

Contributory negligence

244 The Ambulance Service raised an issue of contributory negligence. It was submitted by counsel that Mr Worley ought to have consulted Dr Frankum when referred to him by Dr Rajaratnam on 25 April 1998. He unreasonably failed to obtain treatment. Dr Frankum was a specialist who had the means of desensitising persons who were allergic to bee stings.

245 Evidence was called about what could have been done for Mr Worley and what the result would probably have been. Notwithstanding the difficulty I think the defendant might have had in establishing its case, it is convenient to assume without deciding that Mr Worley failed to take reasonable care in not seeing Dr Frankum.

246 Section 9(1) Law Reform (Miscellaneous Provisions) Act 1965 provides as follows –

(1) If a person (the “claimant” ) suffers damage as the result partly of the claimant’s failure to take reasonable care ( “contributory negligence” ) and partly of the wrong of any other person:
(a) claim in respect of the damage is not defeated by
reason of the contributory negligence of the
claimant, and

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

247 By s8 “wrong” means as act or omission that –

(a) gives rise to a liability in tort in respect of which a
defence of contributory negligence is available at
common law, or

(b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.

248 It is for the Ambulance Service to prove that Mr Worley’s loss and damage resulted partly from his failure to see Dr Frankum. This raises the issue of proximate cause. Mr Worley’s loss and damage resulted from Mr Page’s inappropriate treatment of him. Mr Worley played no part in that treatment. Nothing that he failed to do in April 1998 could have played any part in the means by which Mr Page treated him in a manner which resulted in his loss and damage.

249 Loffo v Giang, New South Wales Court of Appeal, 13 December 1990 unreported is instructive. The defendant, a person of Vietnamese origin, negligently drove his car into collision with the plaintiff’s car. The collision was slight and nobody was injured. A number of people of Vietnamese appearance gathered at the scene of the collision. The plaintiff had been receiving treatment for paranoid schizophrenia. A consequence of the assembly of bystanders was the exacerbation of that illness. The trial judge held that while the accident created the situation in which the bystanders gathered, the accident was not a proximate cause of the exacerbation of the plaintiff’s illness. The members of the Court of Appeal agreed. Mahoney JA said this –

The crowd gathered because of the collision: but for the collision the crowd would not have gathered. But that does not mean that the collision is to be seen as having caused the onset of the symptoms. I have in other cases expressed my views as to the nature of the causal relation in a context of this kind: see Barnes v Hay (1981) 12 NSWLR 337. In some cases, if B flows from A and B causes C, A may be held to have caused C. The question depends upon the nature of the relationship in general. And there is, in addition, a distinction between the circumstances in which A causes B and those in which A is the occasion of B. See Hoffmueller v Commonwealth (1981) 54 FLR 45.

250 In my opinion any failure on the part of Mr Worley to undertake immunotherapy did not in the relevant sense cause his intracerebral haemorrhage. The highest the Ambulance Service can put its case is that the need for the administration of adrenaline was occasioned by his failure to undertake the treatment. But that failure played no role in the way Mr Page administered adrenaline. Mr Worley’s loss and damage resulted solely from the inappropriate manner in which Mr Page treated him. His failure to undertake immunotherapy might have resulted in the need for the services of the Ambulance Service but it played no part in causing his loss and damage.

251 In my opinion Mr Worley did not suffer damage partly as a result of his not undertaking immunotherapy.

Damages

252 Mr Worley suffers from right-sided hemiplegia. His face is paralysed on the right side. He has difficulties with digital dexterity, with walking, and in using stairs. He suffers sensory loss. He will have difficulty on public transport. He cannot drive a car on the road. He tires easily. He has difficulty expressing his ideas. He cannot write easily. He has incomplete control of his bowels. He suffers cognitive dysfunction. His personality has changed and he has consequently suffered greatly. His condition is permanent. I assess his general damages at $250,000.

253 Mr Worley filed a schedule setting forth the manner of calculation of the various heads of special damage. In my reasons published to the parties on 1 February 2005 I said this at para 252 -

Apart from a claim for fund management costs, no challenge was mounted to the fact or calculation of loss under any claimed head of damage.

254 Although relatively little time was spent at the hearing on evidence of damage and less on submissions about it, that statement did not do justice to the submissions of counsel for the Ambulance Service. What counsel said at T1295-1297 was that if its special statutory defence failed, the Ambulance Service accepted liability for incapacity and economic loss at the rate claimed by Mr Worley, though it did not accept that uninjured he would have worked until he was 65 years of age. I accept the figures put forward by Mr Worley because I think that he would have worked until that age if he had not been injured.

255 Counsel accepted in that event that Mr Worley would be entitled to a Fox v Wood component. I have allowed the amount claimed.

256 Counsel for the Ambulance Service challenged the claim for Long Service Leave, contending that Mr Worley would not have worked until 65 years of age. I allow the claim put forward.

257 While not challenging the amount claimed for loss of superannuation benefits, defence counsel submitted that there should be no allowance because Mr Worley was likely to apply for and receive a disability benefit which exceeded the value of his loss of superannuation benefit. I do not accept that Mr Worley is likely to do so and I reject the submission.

258 Counsel for the Ambulance Service challenged any future need for speech pathology, occupational therapy, psychiatric treatment and surgery, the claims for which are particularised in item 3B of Mr Worley’s damages schedule. He has made out his case in those respects and I award the amounts put forward on the evidence particularised in the schedule.

259 Counsel for the Ambulance Service challenged the claim for the cost of modifications to Mr Worley’s house. I accept the claim and allow the amount claimed.

260 There is a claim for the cost of future care. Counsel for the Ambulance Service challenged the rates claimed. I allow the claim at the rates set forth Mr Worley’s schedule.

261 Mr Worley has put forward a claim for fund management fees, relying on the evidence of Dr Adler, Ms Onus, Dr Bowers, Furzer Crestani and himself. Counsel for the Ambulance Service submitted that there was no need for funds management. Mr Worley will receive a substantial amount of money after Australia Post has deducted the amounts to which it will be entitled. He has had no experience of handling large amounts of money. He suffers from intellectual difficulties which will make it impossible in my estimation to manage such a sum of money. I allow his claim for fund management fees.

262 As to damages other than general damages, I am satisfied as to each of the amounts claimed by Mr Worley and set forth in his schedule. I allow interest on one half of the award of general damages at the rate and for the period claimed.

263 I direct the entry of a verdict and judgment for the plaintiff in the sum of $2,628,032.57.

264 I order the defendant to pay the plaintiff’s costs, including the costs of any interlocutory applications, on a party-party basis up until 19 February 2004 and thereafter on an indemnity basis.

265 Provided the defendant pays to the plaintiff no later than 11 February 2005 the sum of $1,314,016.00 I order a stay of execution of judgment until 4 March 2005.

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Last Modified: 07/16/2007