The Commonwealth of Australia v Ferguson, J.M

Re: THE COMMONWEALTH OF AUSTRALIA
And: JUDITH MARTIN; EILEEN MARGARET FERGUSON and MICHAEL JAMES O'REILLY
Re: EILEEN MARGARET FERGUSON and MICHAEL JAMES O'REILLY
And: THE COMMONWEALTH OF AUSTRALIA
Nos. NT G4 and G5 of 1984
Negligence
5 FCR 351

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Gallop(1) and Neaves(1) JJ.

CATCHWORDS

Negligence - Negligent act causing serious personal injuries inevitably death producing without corrective surgery - Negligence of medical practitioner in failing to make correct diagnosis - Whether resulting death caused by negligence of medical practitioner - Whether under fatal accidents legislation action lay against both the original tortfeasor and the medical practitioner - Contribution between tortfeasors - Apportionment.

Compensation (Fatal Injuries) Act (NT), sub-s.7(1)

Law Reform (Miscellaneous Provisions) Act (NT), ss.12, 13

Negligence - Action for damages under statute where death ensues - Negligent driving - Negligent failure to provide timely and adequate medical treatment - Both torts causing death - Whether both actionable pursuant to statutory right of action - Contribution by tortfeasors - Basis of apportionment - Compensation (Fatal Injuries) Act (NT), s 7(1) - Law Reform (Miscellaneous Provisions) Act (NT), ss 12, 13.

HEADNOTE

The widow of a motorist whose death was found to have been caused by the negligent driving of the other vehicle and by subsequent inadequate medical treatment in a hospital administered by the Commonwealth was awarded damages diminished by the deceased's own negligence and apportioned by the trial judge between the Commonwealth and the driver and the owner of the other vehicle.

Held: (1) The Compensation (Fatal Injuries) Act confers a right of action in certain circumstances in respect of a wrongful act, neglect or default causing death. More than one such act, neglect or default may be a cause of death and therefore actionable.

(2) The fact that the deceased would have been entitled to recover damages against a tortfeasor had he survived, no matter what the quantum, is sufficient to activate the statutory right of his dependants to recover damages against that tortfeasor.

(3) Contribution may be ordered under the Law Reform (Miscellaneous Provisions) Act between the persons whose respective wrongful acts, neglect or default are the causes of death.

A. V. Jennings Construction Pty Ltd v. Maumill (1956) 30 ALJ 100, referred to with approval.

Adelaide Chemical and Fertilizer Co Ltd v. Carlyle (1940) 64 CLR 514; Hogan v. Bentinck West Hartley Collieries (Owners) Ltd (1949) WN 109; Thompson v. Toorenburgh (1973) 50 DLR (3d) 717; Haber v. Walker (1963) VR 339; Chapman v. Hearse (1961) 106 CLR 112, referred to in the course of considering the words "death . . . is caused by" as they appear in s 7 of the Compensation (Fatal Injuries) Act.

Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd (1983) 57 ALJR 626, referred to in relation to an application to amend the notice of appeal by including a ground raised at the trial but abandoned by the defendants' counsel during his final address.

HEARING

Darwin, 1984, August 17; 1985, March 6. #DATE 6:3:1985
APPEAL

Two appeals heard together by consent from a judgment and orders of the Supreme Court of the Northern Territory in which damages were awarded in an action brought pursuant to the Compensation (Fatal Injuries) Act and contributions ordered pursuant to the Law Reform (Miscellaneous Provisions) Act.

B. C. Thomson QC and G. McArthur, for the Commonwealth.

M. D. Maurice QC and G. E. Hiley, for Ferguson and O'Reilly, second and third respondents in the Commonwealth appeal, appellants in the other appeal.

I. D. Nosworthy, for Martin (the widow) (first respondent in Commonwealth appeal).

Cur adv vult

Solicitors for the Commonwealth: Australian Government Solicitor.

Solicitors for the second and third respondents in the Commonwealth appeal, appellants in the other appeal: Ward Keller.

Solicitors for the first respondent in the Commonwealth appeal: Mildren, Silvester & Partners.

GFV

ORDER

The appeal be dismissed.
The appellant pay the costs of the first respondent of and incidental to the appeal but otherwise there be no order as to costs.

1. The appeal be dismissed.

2. There be no order as to costs.

Appeals dismissed

JUDGE1

These two appeals from the Supreme Court of the Northern Territory, which by consent were heard together, raise difficult questions of fact and questions of law of some complexity. So far as the principal issue of law is concerned it is surprising, to say the least, that the issue has not, so far as the researches of counsel have discovered, been the subject of judicial consideration. That issue is whether, in a case where the doing of a negligent act results in personal injury from which, in the absence of prompt and effective medical treatment, the victim will surely die and there is a negligent failure on the part of a medical practitioner to provide such treatment, an action for damages under the statutes providing a remedy for wrongful death lies against both the tortfeaser who inflicted the personal injury and the medical practitioner. If that issue is resolved in the affirmative, the further issues arise whether the tortfeasors may seek contribution from each other in relation to the damages recoverable under the statute and, if so, on what basis is the apportionment to be made.

A motor vehicle accident occurred at Nhulunbuy in the Northern Territory at about 10.45 p.m. on 7 November 1978 when a Mazda sedan owned by William James O'Reilly ("O'Reilly") and driven by Eileen Margaret Ferguson ("Ferguson") came into collision with a Toyota Hi Ace van driven by Thomas Martin ("the deceased"). There is no dispute that Ferguson drove the Mazda sedan across the path of the deceased's vehicle and in so doing was guilty of negligence. It must also be accepted that the deceased was guilty of negligence which the Supreme Court of the Northern Territory found "contributed to the extent of 20% to his injuries and consequential death".
In the accident, the deceased suffered serious injuries which were inevitably death producing without corrective surgery. He suffered a traumatic laceration of the small bowel and small bowel mesentery. The deceased was taken by ambulance to the Gove District Hospital and admitted. That hospital was at the relevant time operated and staffed by the Commonwealth of Australia ("the Commonwealth"). The deceased died at about 3.30 a.m. on 11 November 1978 as a result of septicaemia secondary to peritonitis caused by faecal contamination of the peritoneal cavity by the perforation of his bowel, such bowel damage clearly resulting from injuries he received in the motor vehicle accident.
The widow of the deceased, Judith Martin, ("the widow"), pursuant to sub-section 7(1) of the Compensation (Fatal Injuries) Act of the Northern Territory, brought an action for damages consequent upon the death of the deceased. The action, brought on behalf of her four children as well as on her own behalf, named Ferguson and O'Reilly as defendants. By their defence those defendants denied liability and alleged that the deceased's death was caused by the negligence of the Gove District Hospital and its staff in failing properly to diagnose and treat the deceased's internal injuries, such negligence amounting to a novus actus interveniens between the motor vehicle accident and the deceased's death. It was also alleged that the deceased had been guilty of negligence which caused or contributed to his own death.
The widow then joined the Commonwealth as a defendant to the proceedings and amended the statement of claim filed therein to allege a cause of action against the Commonwealth under sub-section 7(1) of the Compensation (Fatal Injuries) Act on the footing that the deceased's death was caused by the negligence of the Commonwealth's servants or agents in that they failed to provide, establish or maintain a reasonable system of care for the deceased or, alternatively, failed to use reasonable care and skill in carrying out treatment and care of the deceased as a patient.
Third party notices were given by Ferguson and O'Reilly to the Commonwealth and to Maxwell Roy Chalmers and Mohan Ran Pillai both of whom were medical practitioners at the Gove District Hospital. A third party notice was given by the Commonwealth to Ferguson and O'Reilly.
When the action came on for hearing before the Supreme Court, Ferguson and O'Reilly admitted that Ferguson was guilty of negligence in the manner in which she drove the Mazda sedan and that O'Reilly was vicariously liable for that negligence. The case proceeded on the footing that the principal issue for determination was whether the death of the deceased had been caused, not by the injuries received in the motor vehicle accident, but by the negligence of the medical practitioners at the Gove District Hospital, that negligence being of such a character as to break the chain of causation between the negligence of Ferguson and the deceased's death. It was common ground that the medical practitioners involved were the servants or agents of the Commonwealth and that the Commonwealth was vicariously liable in respect of any damage flowing from negligence on their part. The third party notices given to Dr Chalmers and Dr Pillai were not further relied upon.
In a written portion of his final address in the Supreme Court, counsel for Ferguson and O'Reilly deliberately abandoned the contention that the negligence of the medical practitioners at the Gove District Hospital amounted to a novus actus interveniens so as to break the chain of causation between the road accident and the deceased's death. He contended, however, that Ferguson and O'Reilly were entitled to contribution or indemnity from the Commonwealth in respect of any damages they might be ordered to pay to the widow or her children.
The Supreme Court gave judgment for the widow against the defendants in the sum of $178,136 apportioned between the widow and her four children as follows -

Widow $131,336 Hector Martin $ 3,200 Judith Sally Martin $ 10,400 Keita Martin $ 15,600 Weireta Martin $ 17,600 $178,136

The sum of $178,136 represented 80% of the total damages assessed ($222,670), those damages being reduced in accordance with the finding mentioned above that the negligence of the deceased contributed to his injuries and death to the extent of 20%. The Court ordered that, of the sum awarded, Ferguson and O'Reilly contribute the sum of $133,602 (i.e. 60% of $222,670 or 75% of $178,136) and the Commonwealth the balance of $44,534 (i.e. 20% of $222,670 or 25% of $178,136). The formal order of the Supreme Court did not, however, accurately reflect the judgment given by the learned trial judge and steps were taken during the hearing of the appeals to have the formal order appropriately amended.

The Commonwealth has appealed from that part of the judgment whereby it was held liable in damages to the widow. The respondents named in that appeal are the widow, Ferguson and O'Reilly. Ferguson and O'Reilly have appealed from that part of the judgment "as apportioned responsibility for the death of Thomas Martin as against the Appellants (Ferguson and O'Reilly) to the extent of 60% and as against the Respondent (the Commonwealth) to the extent of 20%". The widow is not named as a party in that appeal.
The notice of appeal filed on behalf of Ferguson and O'Reilly set out the following grounds of appeal -

"(a) That the apportionment was inconsistent with and contrary to the found facts.

(b) That the learned trial judge made an error of law in that -

(i) He failed to have sufficient regard to the extent of the Respondent's (the Commonwealth's) responsibility for the death of Thomas Martin.

(ii) He wrongly took into account and/or assessed the relative 'dangerousness' of the first Appellant's (Ferguson's) negligent acts.

(iii) He failed to take into account Thomas Martin's prospects of survival had he received proper and timely medical treatment."

At the hearing counsel for Ferguson and O'Reilly sought leave to amend the notice of appeal by adding the following ground of appeal -

"(c) That the learned trial judge erred in failing to find that the negligence of the Respondent (the Commonwealth) and its doctors constituted a novus actus interveniens."

In support of the application counsel relied on the circumstance that the question whether the conduct of the medical practitioners at the Gove District Hospital in treating and caring for the deceased amounted to a novus actus interveniens was and remained an issue at the trial until the point was abandoned by counsel for Ferguson and O'Reilly during his final address, an address made after the addresses of the other parties. It was submitted that the failure to maintain that point in no way prejudiced the other parties in terms of the evidence that was adduced at the trial or the terms of the submissions they made except those in reply to what had been put on behalf of Ferguson and O'Reilly. It was submitted that any prejudice could be rectified by the Court making an appropriate order as to costs.
In his reasons for judgment the learned trial judge adverted to the matter in two passages. His Honour said -

"The first and second defendants (Ferguson and O'Reilly) no longer maintain the argument prefaced on the pleadings that such negligence (if proved) constituted a novus actus putting an end to their liability beyond admission to hospital. On the facts here such an argument was untenable and there is no necessity to consider the authorities."

Later his Honour said -

"As I have said it was not finally contended - and in my view rightly so - that the Commonwealth's negligence constituted a novus actus so as to put an end to the liability of the first and second defendants at the hospital door."

It was submitted that the Court should grant the application so as not to be constrained artificially in its consideration of the causal significance of the negligence of the medical practitioners by reason of the concession that had been made in the closing stages of the addresses at the trial.
The Court decided that the application should be refused and indicated that it would give reasons for that decision when delivering judgment on the substantive appeal. We now set out our reasons for that decision.
Because the point was expressly abandoned at a time when there had been ample opportunity for due consideration of the consequences of taking that step, this Court does not have the benefit of any discussion of the point by the learned trial judge and although, as has been already mentioned, his Honour regarded the point as untenable, the Court does not have the benefit of the reasons which his Honour had for expressing that view. We took the view that to allow the matter to be reopened in such circumstances would be of particular significance in relation to the conduct of trials and we thought it inappropriate, except in the most exceptional circumstances, that an appeal should be allowed to proceed on an entirely different basis from that upon which the matter was put to the learned trial judge. We did not regard the circumstance put to us by counsel for Ferguson and O'Reilly that the point had been a live one during the course of the taking of evidence in the Court below as amounting to an exceptional circumstance warranting the granting of the leave sought. We should add that we do not regard the decision of the High Court in Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd. (1983) 49 ALR 149 relied upon by counsel for Ferguson and O'Reilly as requiring a different conclusion. That case was concerned not with a point that had been expressly abandoned in the Court below but one that was not argued.
As has been already mentioned the widow's claim was based on sub-section 7(1) of the Compensation (Fatal Injuries) Act. That sub-section provides:

"Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime."

Sub-section 7(1) has its origin in section I of Lord Campbell's Act (9 & 10 Vict. c.93) but, for reasons which will appear, it is not a faithful reproduction of that provision. Its application to the circumstances of a particular case depends upon the Court being satisfied, on the balance of probabilities, that the various requirements set out in the provision have been met.
One of those requirements is that the act, neglect or default of the person sought to be made liable is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages "in respect of the injury". In so providing the language of the sub-section departs from the language of section I of Lord Campbell's Act and of the legislation of the various States of Australia modelled upon that statute (although not that in force in the Australian Capital Territory which is in identical terms to the Northern Territory legislation). Section I of Lord Campbell's Act and the corresponding section of the legislation in force in each of the various States provides that the act, neglect or default must be such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages "in respect thereof". These latter words, read in their context, would appear to relate back to the act, neglect or default and not, as in the Northern Territory legislation, to the injury. It may be a question whether this change of language is significant.
Another requirement of sub-section 7(1) is that the death of the person be "caused" by the wrongful act, neglect or default.
Once those requirements are fulfilled the statute provides as the consequence that the person who would have been liable if death had not ensued is to be liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime.
As appears from what is said above, there is no appeal from the decision of the Supreme Court that Ferguson and O'Reilly were liable in damages to the plaintiff. They were held liable on the footing that Ferguson's negligent act (for which O'Reilly was legally responsible) in driving the Mazda sedan not only caused the deceased's death but was such that, had the deceased survived, he would have been entitled to maintain an action against both Ferguson and O'Reilly in respect of the injuries he received in the motor vehicle accident. Thus the requirements of sub-section 7(1) of the Compensation (Fatal Injuries) Act were satisfied.

We must turn, then, to a consideration of the question whether sub-section 7(1) operates, in the circumstances of this case, to create a liability in the Commonwealth to pay damages to the widow. As a first step, it will be convenient to examine the question whether the medical practitioners who attended the deceased at Gove District Hospital were, or either of them was, guilty of a wrongful act, neglect or default, or more accurately whether the reasons given by the learned trial judge in support of his affirmative answer to that question exhibit error warranting the intervention of this Court.
In his reasons for judgment the learned trial judge said -

"The deceased was admitted to hospital shortly before midnight on Tuesday 7th November 1978. The nurses' notes indicate he was very restless and complaining of 'severe abdominal pain'. Dr Chalmers saw him soon after. He noted no gross external injuries but observed the patient smelt strongly of alcohol. He was placed under observation for head injury. About three hours later he complained to both Dr Pillai and the nursing staff of abdominal pain and the former prescribed morphine - not in the view of some a wise prescription for a patient under observation for either head or internal injury. At this stage he is reported to have been conscious but his pulse rate had increased. In the early hours of the morning he expressed anxiety to contact his employers and at about 7.15a.m. Dr Chalmers encountered the deceased walking 'a bit stooped over - but fairly briskly' en route to take a taxi home. He was sent back to the ward. Dr Chalmers found his abdomen to be a little tense but bowel signs were sluggish. This incident I am afraid assumed great significance in Dr Chalmers' mind. As he said in evidence, having observed the internal damage upon operation - 'I was shocked - I was really surprised that somebody with that much injury had in fact been able to walk - I hadn't thought that was possible'. It is, on the evidence indeed surprising that the deceased walked that morning. He was a strong fit fellow, and it may well be that the alcohol he consumed and/or the effects of the morphine played their part - together with his anxiety to get back to work. Be that as it may I find this incident deceived Dr Chalmers and it may explain why, much later that day he instructed the nursing staff to discontinue taking girth measurements although at the time this instruction was given some distension was established. It may also explain why Sister Witthahn's expressed anxiety found no ready response. But the clinical picture as it emerged that day gave no justification for lack of extreme vigilance. Pain continued. At 1.00p.m. on 8th November it was categorised by Sister Witthahn as 'very severe', he was unable to pass urine and she commented 'quite a bit of abdominal distension' was present. She notified Dr Chalmers. An hour later she recorded 'abdominal pain getting more severe - short breathing pattern' - the latter being consistent with severe pain and the continued symptoms consistent with bowel injury. He had refused lunch and was not voiding urine. At about 3.00p.m. Dr Pillai catheterised the patient and the urine contained some blood. He recorded that bowel sounds were sluggish. At about 9.00p.m. that evening more morphine was administered and there was an increase in blood pressure, pulse rates, temperature and girth measurement - information which was recorded on the hospital charts. It was at this time that Dr Chalmers directed that measurements of girth should be discontinued, a direction I find hard to comprehend in view of the history available to him at that time. During the night further drugs were administered. Upon the evidence I have heard as to the symptoms and progress of traumatic bowel injury I am satisfied that at that stage, about 24 hours after his admission, the symptoms merited anxiety and active treatment. Some change in bowel sounds, haematuria, rising pulse rate, shallow breathing, continuing complaints of severe pain warranting the administration of morphia were symptoms which should have continued to put the doctors on their guard to avoid falling into the 'trap' referred to by Mr Fleming and others in evidence of awaiting the 'full development' of clinical symptoms before taking positive steps - which I find were available - evacuation, surgical advice or assistance, or indeed surgery.

During the following day, the 9th November, there is no record of examination by a doctor until 11.00p.m. that night when the symptoms still were ominous. On that day three of the other patients injured in the accident who were members of the R.A.A.F. were evacuated by Hercules aircraft. I have some doubts as to whether any detailed examination of the deceased was carried out by a doctor before 11.00p.m. that night. Dr Chalmers believes he did examine the deceased although neither his notes, nor the nurses' notes support a proper examination. It is more likely I think that he observed the deceased in the course of his comings and goings in the small ward. Sister Witthahn recorded inter alia that he was 'quite restless' at times, that he complained of abdominal pain of varying degree and as the day wore on he 'seems quite disoriented'. In evidence she stated 'I had the feeling that the patient was in pain and he was coming towards a disorientation state. He came towards a toxic state'. These observations were upon the evidence of great significance, restlessness and disorientation being danger signs. They were adequately recorded in the notes but did not elicit medical response. The 'wait and see' programme continued until 11.00p.m. that night when the deceased vomited a bile stained fluid and Dr Pillai was called. During the day his pulse rate increased to 120 with some short lived recessions, his blood pressure rose to 140 over 110 and his temperature remained higher than normal. Shortly before midnight on the 9th November, in response to the call earlier made by the nursing staff, the deceased was seen and examined by Dr Pillai who recorded this examination in the hospital notes. It suffices to say that following the examination Dr Pillai suspected peritonitis but decided on a course of continuing treatment and observation."

After setting out an extract from Dr Pillai's evidence the reasons for judgment proceed -

"Further examination during the morning indicated general tenderness and rigidity of the abdomen. X-Rays of poor quality and of little assistance were taken and pre-operative treatment was prescribed. Dr Chalmers took charge and carried out the operation. I find from his evidence that even at this stage he did not really suspect the major problems which the operation revealed and he considered only there may have been a mechanical obstruction of the small bowel. Upon laparotomy the full extent of damage was revealed. As I have said there can be no criticism of the surgical procedures or the subsequent efforts to maintain life but I find that the delay between the injuries and operative intervention was such as to make the patient's death at that late stage almost inevitable."

His Honour regarded it as proved that within 24 hours of his admission the deceased was exhibiting a combination of clinical and subjective symptoms which necessitated active steps and surgical intervention, bearing in mind that it was only by inspection of the bowel that the extent of the damage could have been assessed and, if required, remedied.
His Honour found that Dr Chalmers and Dr Pillai failed to heed the combination of symptoms and that Dr Chalmers placed too much weight upon his own provisional diagnosis of seat-belt bruising, a diagnosis confirmed in his mind by the deceased's apparent physical capacities on the morning following his admission but contradicted by the duly recorded clinical observations. His Honour also found that the medical (as opposed to the nursing) surveillance fell short of the degree demanded by the deceased's history and symptoms. His Honour concluded that "in the careful exercise of his professional skills a provisional diagnosis leading to laparotomy and final diagnosis should have been made by Dr Chalmers considerably earlier and that this would, on the probabilities, have led to earlier life saving surgery either at Gove or elsewhere." He found Dr Chalmers negligent "in his failure in this instance in allowing the injuries to remain undiagnosed so long, knowing as he did the inherent dangers should his earlier provisional diagnosis prove erroneous".
Having considered the whole of the evidence, we are of the opinion that there was material upon which the learned trial judge could find that Dr Chalmers was guilty of negligence in failing to diagnose the deceased's condition and to operate upon him at an earlier point of time. We are unable to accept the arguments to the contrary put to us by counsel for the Commonwealth. We see no reason to interfere with his Honour's finding.
The next question that arises under the statute is whether the death of the deceased was caused by the wrongful act, neglect or default of Dr Chalmers.
One argument put by counsel for the Commonwealth was that, by the time when Dr Chalmers' failure to act could properly be said to have amounted to negligence, it was probably already too late to save the life of the injured man.
It is true that there was a direct relationship between the delay in operating and the chances of the injured man surviving. As the symptoms became more demanding of attention, and the doctor's negligence in omitting to act became clearer, so the chances of survival reduced. However, it was not incumbent on the learned trial judge to fix a precise moment when negligence was clearly established and a successful operation could safely be predicted. His Honour was entitled to weigh the increasingly negligent conduct against the steadily diminishing chance of the patient's survival and reach a finding as to whether the course of conduct over a period caused or contributed to his death.
In fact his Honour was rather more specific than this, because he reached a positive finding that the deceased "... within 24 hours of his admission was exhibiting a combination of clinical and subjective symptoms which I find necessitated active steps and surgical intervention ...". There was medical evidence, which his Honour was clearly entitled to accept, and by inference did accept, to the effect that an operation on the afternoon following the accident (some 15 hours after admission) would have had "a negligible risk of mortality" and one late the following night (48 hours after admission) would have had a 40-50% chance of success. It was open to his Honour to infer that an operation within 24 hours had every prospect of success. We therefore do not accept this submission of the Commonwealth.
Counsel for the Commonwealth further submitted that, once it is accepted that the failure of Dr Chalmers to diagnose the deceased's condition and to operate upon him at an earlier point of time, although constituting negligence on his part, did not amount to a novus actus interveniens breaking the chain of causation between Ferguson's negligence and the death of the deceased, it was not open to the learned trial judge to find that the death was caused by the negligent omissions of Dr Chalmers. Counsel stated the principle to be that where the subsequent wrongful act, neglect or default is not such as to break the chain of causation between the original wrongful act, neglect or default and the harm complained of (be it personal injury or death), the person responsible for the original act, neglect or default is liable for the harm complained of and the person responsible for the subsequent act, neglect or default is not liable. In other words, unless the subsequent act, neglect or default constitutes a novus actus interveniens, no liability attaches to the person responsible for that subsequent act, neglect or default, liability for the totality of the harm suffered remaining with the original wrongdoer.
It was said that in a case where death has not ensued and the injured person is seeking damages for personal injuries suffered as a result of two successive acts of negligence and the later of those acts cannot properly be described as the sole cause of the injuries received, the injured person may recover damages against the persons responsible for each act of negligence. In such circumstances, however, the quantum of damages recoverable against the person responsible for the later act of negligence was said to be limited to the damage resulting from that negligent act. But it was submitted that, in a case where death has ensued, the statute requires, as a matter of law, that a decision be made whether death was caused by the original or the subsequent act of negligence, it not being open to conclude that the death was caused by both acts. Unless the subsequent act of negligence amounts to a novus actus interveniens breaking the chain of causation, the only answer which may properly be given to the question posed is that the original act of negligence caused the death. If, however, the subsequent act of negligence is such that it breaks the chain of causation, the result is that the death is caused by that subsequent act. In no case is it open as a matter of law, so the argument ran, to hold that the death was caused both by the original and by the subsequent acts of negligence.
In support of these submissions counsel referred to and relied upon Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 CLR 514, Hogan v. Bentinck West Hartley Collieries (Owners), Ltd. (1949) 1 All ER 588, Thompson v. Toorenburgh (1973) 50 DLR (3d) 717, Haber v. Walker (1963) VR 339 and Chapman v. Hearse (1961) 106 CLR 112.
All but the last of these cases were, however, concerned only with the question whether there had been a new and independent cause of the harm complained of sufficient to break the chain of causation between the original act causing injury and that harm so as to relieve from liability the person responsible for the original act. The cases were not concerned with the questions which this appeal poses whether the person responsible for the subsequent act, even though that act cannot properly be characterised as a novus actus interveniens, can be held liable in damages if that act is wrongful and, if so, the extent of that liability.
Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (supra) was an action by a widow in respect of the death of her husband which was due to septicaemia arising from a streptococcal infection entering through tissue broken down by burns caused by sulphuric acid which came in contact with his legs when the earthenware jar in which it was supplied by the company to the deceased's employers broke while the deceased was taking delivery of it from the company's premises. The High Court unanimously rejected an argument that the death of the deceased was not the consequence of the burns he sustained from the acid because it was due to a new and independent cause, namely the infection or the disobedience of medical orders or the want of proper treatment of the injuries by the deceased and his wife.
The question in Hogan v. Bentinck West Hartley Collieries (Owners), Ltd. (supra) was whether the incapacity for work from which the worker (who had a congenital defect in his right thumb) admittedly suffered was, for the purposes of the relevant workmen's compensation legislation, properly regarded as resulting from an accident at his work when the thumb was fractured or, as the arbitrator found, from a subsequent operation upon the thumb, an operation which was held to have been carried out not to relieve the disability arising from the accident but because of the congenital deformity and to have been ill-advised. The arbitrator, not having misdirected himself upon the law and there being evidence to support his finding that the chain of causation between the original injury and the incapacity had been broken, the House of Lords, by majority, dismissed the worker's appeal.
Thompson v. Toorenburgh (supra) was an action in which the plaintiff, as administrator of his deceased wife's estate, sought damages in respect of her death following a motor vehicle accident caused solely by the fault of the defendant. The wife, who suffered from mitral stenosis, was treated at hospital following the accident for minor lacerations and abrasions and allowed to leave. Shortly thereafter she developed the symptoms of acute pulmonary oedema which had been induced by the accident. Although taken immediately to hospital her condition was not diagnosed for some time and, in the meantime, treatment was administered which was not the appropriate treatment for her condition. By the time the condition was diagnosed it was too late to prevent her death. An appeal against the findings of the trial judge that, as the wife's death was the result of acute pulmonary oedema brought on by the collision, the negligent motorist was responsible and that the failure to provide the proper treatment (which would almost certainly have saved her life if applied speedily) did not constitute a novus actus interveniens so as to displace that responsibility was dismissed.
Haber v. Walker (supra) was, again, a case which considered only the question whether the chain of causation between the negligent act of the defendant causing a motor vehicle accident and the deceased's death was broken so as to relieve the negligent motorist of responsibility for the death. In that case the deceased had committed suicide while mentally unbalanced as a result of the serious injuries he had received in the accident.
In Chapman v. Hearse (supra) a doctor, Dr Cherry, while going to the aid of Chapman who had been thrown on to the highway when the car he was driving (negligently, as it was held) collided with another vehicle, was struck by a car negligently driven by Hearse and killed. Hearse was sued for damages in respect of Dr Cherry's death. He joined Chapman as a third party seeking contribution or indemnity from him in respect of the damages he might be ordered to pay to the executor of Dr Cherry. Chapman was ordered to make a contribution of one-fourth of the damages awarded against Hearse. Chapman's appeal to the High Court was dismissed.
An analysis of the issues that arose for decision in those cases and the answers which the courts gave demonstrates that they provide no support for the propositions advanced for the Commonwealth that, in a case where death occurs following two successive acts of negligence, a choice must be made whether the death is caused by the original or by the subsequent negligent act and that, as a matter of law, it is not open to a court to find that the death was caused by both negligent acts. Indeed, Chapman v. Hearse (supra) is inconsistent with such a principle for the effect of that decision was to hold that the death of Dr Cherry was caused by the negligent act of Chapman and by the negligent act of Hearse.

Counsel for the Commonwealth sought to distinguish that case on the basis that the negligent acts of both Chapman and Hearse were "essential for the death", that is to say that the death resulted from the injuries received by the deceased when struck by the motor vehicle driven by Hearse but that the negligence of both Chapman and Hearse brought about the situation in which those injuries were received. In those circumstances the wrongful acts of both Chapman and Hearse could be said to have caused Dr Cherry's death. But, it was submitted, in a case such as the present where the injuries received as a result of the first act of negligence were fatal unless appropriate treatment were provided it was that act of negligence that caused the death. This remained the position even though there was a supervening failure by a medical practitioner to provide adequate and proper medical treatment which, if provided, would or may have resulted in the survival of the injured person. In those circumstances, it was submitted, all that could be said of the medical practitioner's negligence was that it deprived the deceased of a chance to live: it did not cause the death.
It is of the utmost importance in considering this and, indeed, any question arising under the Compensation (Fatal Injuries) Act to keep firmly in mind the words of the statutory provision. In speaking of the cause of the death the provision is not looking to the medical explanation for the death. The effect of the provision is to create a cause of action where none previously existed and it, therefore, focuses attention on any wrongful act, neglect or default that may be associated with the death. A cause of action arises only if it can be determined that the death was caused by such a wrongful act, neglect or default. There is nothing in that language to require that a single act, neglect or default be identified as "the" cause of the death. What the provision requires is that the whole of the circumstances surrounding the death be examined with a view to identifying any wrongful act, neglect or default that can properly be described as causing the death. The question so posed is clearly one of fact to be decided according to the "concepts relating to causation that are latent in ordinary thought and speech" (Haber v. Walker (ibid. per Smith J. at p 358)). In a case where there are successive acts of negligence, the inquiry will sometimes isolate one or other of those acts as being the sole cause of the death. But we are unable to accept that, as a matter of law, one cannot reach the conclusion in an appropriate case that both acts caused the death. Nor are we able to accept that such a conclusion is only open in a case such as Chapman v. Hearse (supra) where death would clearly not have resulted if the second act of negligence had not occurred.
Accepting this view of the statutory provision, it is necessary to consider whether there is a finding of fact that the death of the deceased was caused by the wrongful neglect of Dr Chalmers and, if so, whether there was evidence to support such a finding. To both of these questions we think an affirmative answer should be given.
The learned trial judge did not in his reasons for judgment make a finding expressly in terms of the statute that the death of the deceased was caused by the neglect of Dr Chalmers. What the learned judge found was the Dr Chalmer's negligence "contributed" to the deceased's death but did not amount to a new and independent cause of death so as to put an end to the liability of Ferguson and O'Reilly for the death. But by those findings, read with the further finding that earlier diagnosis would, on the probabilities, have led to earlier life saving surgery either at Gove or elsewhere, we understand his Honour to be saying that there was a sufficient nexus between the negligence of Dr Chalmers and the death of the deceased to satisfy the statutory requirement. We are of opinion that to say that the cause of the deceased's death was the negligent driving of Ferguson coupled with the negligent failure of Dr Chalmers to provide timely and adequate medical treatment is to state a conclusion that accords with the "concepts relating to causation that are latent in ordinary thought and speech". We are satisfied there was evidence to support the finding to which we understand his Honour to have come.
But in order to succeed in an action against the Commonwealth under the statute it was necessary for the widow to show not only that there had been a breach of duty owed by Dr Chalmers to the deceased but that, had the deceased survived, he would at the date of his death have been entitled to maintain an action against the Commonwealth and recover damages in respect of his injury. The assumption which the statute requires to be made that death did not ensue gives rise to its own difficulties in a case where the injuries received as a result of the motor vehicle accident were such that, unless timely and adequate medical treatment was received, death was inevitable. The difficulties are accentuated where, as here, the time interval between the neglect of Dr Chalmers and the death was comparatively short. Nonetheless that is the assumption that the provision requires.
For the Commonwealth it was submitted that the deceased, had he survived, would not have been entitled to recover damages from the Commonwealth for no damage additional to that resulting from the motor vehicle accident flowed from the failure of Dr Chalmers to provide timely and adequate medical treatment. Damage being the gist of an action in negligence, an action against the Commonwealth must, it was said, have failed. There is also the question whether the deceased, had he survived, could have shown an "injury" within the meaning of that expression in sub-section 7(1) of the Ordinance arising from Dr Chalmers' failure.
These are difficult factual questions which do not appear to have been agitated at first instance. At least they are not adverted to in the reasons for judgment of the learned trial judge. However, while acknowledging their difficulty we think that there was sufficient material before the learned judge to sustain a conclusion that the deceased did suffer injury and damage by reason of Dr Chalmers' failure so that, had he survived, he would have been entitled to recover damages against the Commonwealth arising from that failure. It is not possible on the material to form a view as to the quantum of such damages. Indeed, they may have been very small. But one is not concerned with the quantum: once it is correct to posit that some damages, however small, could have been recovered by the deceased had he survived, the statutory requirement is satisfied. It may seem paradoxical that the dependants of the deceased may be entitled to recover from the Commonwealth a substantially greater sum by way of damages than the deceased could have recovered from the Commonwealth had he survived. However such a result, if it arises, is referable to the circumstance that the cause of action given by the Compensation (Fatal Injuries) Act is sui generis and is in no sense derivative.
As there was evidence that the deceased suffered injury and damage by reason of Dr Chalmers' failure to provide timely and adequate medical treatment and the deceased, if he had survived, would have been entitled to recover damages against the Commonwealth in respect of that failure, the cause of action provided by the Ordinance was established. For these reasons we think the appeal by the Commonwealth should be dismissed.
We turn now to the appeal by Ferguson and O'Reilly in which an order is sought increasing the proportion of the damages awarded to the widow that are to be paid by the Commonwealth and decreasing the proportion to be paid by Ferguson and O'Reilly. As already mentioned the learned trial judge ordered that of the damages payable to the widow ($178,136) Ferguson and O'Reilly were to contribute $133,608 and the Commonwealth $44,534.
The relevant statutory provisions in force in the Northern Territory are sections 12 and 13 of the Law Reform (Miscellaneous Provisions) Act. Section 12 provides in sub-section (1) that the section applies where damage is suffered by a person as a result of a tort. Sub-section (4) provides -

"A tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, but no person is entitled to recover contribution under this section from a person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought."

In proceedings for contribution under section 12 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage (section 13).

Because of the finding by the learned trial judge (a finding with which we find no reason to interfere) that the death of the deceased was caused by the wrongful act of Ferguson (for which O'Reilly is responsible) and the negligent failure of Dr Chalmers, the servant of the Commonwealth, to provide timely and adequate medical treatment, Ferguson and O'Reilly on the one hand and the Commonwealth on the other were liable to the widow for the damages payable under the Compensation (Fatal Injuries) Act, in respect of the death, the damages being proportioned to the injury resulting from the death. In such circumstances it would seem clear that Ferguson and O'Reilly on the one hand and the Commonwealth on the other were tort-feasors liable in respect of the same damage within the meaning of that expression in sub-section 12(4) of the Law Reform (Miscellaneous Provisions) Act and that it was a proper case in which to order contribution.
Having stated that his task was to determine the contributions which the defendants should make to the plaintiff's damages on the basis that the contributions should be just and equitable having regard to the respective responsibility for such damage, the reasons for judgment of the learned trial judge proceed -

"This is not an easy exercise. It is well established in cases following Pennington v. Norris 30 A.L.J. 242 ((1956) 96 C.L.R. 10) that questions such as culpability, and the 'dangerousness' of the negligent act fall to be weighed. In cases involving road accidents such criteria are not difficult to apply. But here I have a case where the defendant Ferguson by a positive act of negligence and in breach of statutory duty inflicted injuries which were inevitably death producing unless the plaintiff's (sic) life was to be saved by early diagnosis and major surgery. The defendant has been found liable because of the delay in surgery - not resulting from any wilful neglect but by delaying surgery and failing to recognise danger signs until it was too late. Upon my findings it involved a significant clinical error of judgment. Clearly in my view the negligence of the defendant Ferguson must be classified as primarily responsible. I have already found that the deceased's own negligence contributed to his injuries and subsequent death to the extent of 20%. I apportion responsibility against the first two defendants to the extent of 60%; against the defendant Commonwealth to the extent of 20%."

It may be mentioned in passing that his Honour appears to have been in error in referring to Ferguson as having committed a breach of statutory duty but, if it be an error, it is not a matter of any significance.

Counsel for Ferguson and O'Reilly submitted that his Honour failed to attach any significance to the fact that Ferguson's negligence was of a transitory nature whereas that of Dr Chalmers was of a continuing character involving repeated significant omissions extending over many hours. It was also submitted that his Honour failed to attach any significance to the fact that but for Dr Chalmers' negligence there was a high degree of probability that the deceased would have survived his injuries and made a complete recovery.
It is clear that the statutory provisions give a very wide discretion to the judge entrusted with the task of making the apportionment. Having regard to the width of that discretion, the cases in which the apportionment can be successfully challenged on appeal must be rare.In A.V. Jennings Constructions Pty. Ltd. v. Maumill (1956) 30 ALJ 100 the High Court had to consider an appeal against apportionment of liability between joint tortfeasors. As to apportionment of responsibility the High Court said at p.101:

"Such a finding, it must be remarked at once, is not lightly reviewed by a court of appeal. As Lord Wright observed in British Fame (Owners) v. Macgregor (Owners) ((1943) A.C. 197, at p.201), it is a finding upon a question 'not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'. Accordingly re-consideration of the question in the exercise of an appellate jurisdiction is subject to the limitations imposed by the principles which govern all appeals against judgments given in the exercise of discretions, principles which this Court has stated repeatedly in recent cases. Consequently, as Lord Simon remarked in the case just cited at pp.198-199, 'the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge.'"

It is not suggested that his Honour's approach to the question was otherwise than in accordance with established principle. A reading of his Honour's reasons for judgment demonstrates that his Honour had well in mind the detailed history of the medical treatment afforded to the deceased between the time of his admission to hospital shortly before midnight on 7 November 1978 and his death at 3.30 a.m. on 11 November 1978 and, in particular, the matters to which counsel has drawn attention by way of criticism of his Honour's apportionment. The relative significance to be attached to those matters in relation to the general question of apportioning as between the defendants the extent of responsibility for the damage was a matter for the learned trial judge. We are not persuaded that his Honour fell into any error that requires the intervention of this Court. His finding should not be disturbed.
The consequence is that the appeal by Ferguson and O'Reilly should also be dismissed.
The Commonwealth must pay the costs of the widow of and incidental to the appeal numbered NT G 4 of 1984, that being the only appeal in which the widow was named as a party. Since the Commonwealth and Ferguson and O'Reilly have been unsuccessful in their respective appeals and as most of the documentary material and the oral exposition of facts was common to both appeals, we think that, as between the Commonwealth and Ferguson and O'Reilly, it is appropriate that there be no order as to costs.

[1985] FCA 65

06 MARCH 1985