Wood & Anor v Strempel

[2006] HCATrans 254

[2006] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P48 of 2005

B e t w e e n -

DAVID JOHN WOOD

First Applicant

JOHN ORESTE CHLEBOUN

Second Applicant

and

BRIAN PHILIP STREMPEL

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 11.54 AM

Copyright in the High Court of Australia

MR J. GILMOUR, QC:   May it please the Court, I appear with my learned friend, MR J.A. THOMSON, for the applicants.  (instructed by Clayton Utz)

MR C.L. ZELESTIS, QC:   May it please the Court, I appear with my learned friend, MR T. LAMPROPOULOS, for the respondent.  (instructed by Hoffmans)

MR GILMOUR:   Your Honours, we have two broad propositions.  The first concerns only the first applicant, Professor Wood – which is that in finding him to have been professionally negligent, when the trial judge did not, the Court of Appeal articulated a case which was not run at trial or on appeal.  So, in those two very fundamental respects, in each case Professor Wood was denied a fair trial and indeed a fair appeal.  That is obviously inimical to the due administration of justice.

This Court has said as much in a not dissimilar case in Whisprun v Dixon.  I refer your Honours, though I do not need to take you to them presently, at paragraph [51].  The remarks there are particularly apposite:  Indeed, in the present case it was not a matter of a new point being raised on appeal.  Rather the new case was exposed for the first time in the judgment of Justice McLure with whom the Chief Justice agreed.

The second broad proposition concerns both the applicants on the issue of causation.  Albeit unconsciously, the Court of Appeal, in our submission, impermissibly substituted its own findings of causation when it could not have made the substituted findings if proper principle had been observed.  Now, this error, as I say, affected both applicants.  The limits upon intermediate appellate courts in reviewing findings based upon expert evidence is a point of general interest.  In addition there have been some observations on that kind of matter in cases such as Fox v Percy, paragraph 37 where the majority had something to say about that.

Turning then to our particular submissions concerning Professor Wood, your Honours will find the case exposed, as we say, by Justice McLure, but not pleaded or run at trial in the way the case was put before the Court of Appeal, and this is at paragraph 69 of her Honour’s reasons at page 116 of the application book.

The case concerns information which Justice McLure held that Professor Wood should have communicated to Mr Chleboun, the vascular specialist, concerning matters that he had discovered, that is, Professor Wood had discovered from his earlier consultations with the respondent, Mr Strempel, and which, had he informed Mr Chleboun about, that Mr Chleboun would have come to a different view as to whether the occlusion of the popliteal artery was chronic or acute, chronic being the suspicion which Mr Chleboun had formed at the time.

Now, the way her Honour puts it, in 69 she refers to:

personal knowledge of matters relating to the occlusion.

She then said, relevantly:

If he had acted reasonably –

that is, Professor Wood –

he would at the time of 4.30 pm consultation –

That is at the time after Mr Chleboun has been called in to the acute circumstances pertaining at the time and a scan has been performed which shows that the popliteal artery has been occluded, her Honour said that Professor Wood acting reasonably would have raised with the second respondent, Mr Chleboun -

the relevant facts of which he was aware –

She does not say what these facts are –

and the reasonableness of the second respondent reaching and acting on the conclusion that the occlusion was chronic without going the next step and obtaining an angiogram . . . I am satisfied that the first respondent was negligent in abdicating his shared responsibility to asses the appropriate response to the acute ischaemia.

That is not a case that was put against Professor Wood at the trial, nor is it a case that was put against him on appeal.  The highest case put either in the trial or on the appeal for negligence after the operation as against Professor Wood was that he himself should have arranged for an angiogram to have been conducted, not a case that he should ‑ ‑ ‑

HAYNE J:   As to this aspect of your case, at page 85 of the application book , ground (9), do we find there a ground of appeal that was pursued at the appeal to the Court of Appeal; in particular, the allegation of “inadequate communication” between the respondents?

MR GILMOUR:   There were questions put to my friend, Mr Zelestis, but your Honour Justice Hayne will appreciate that that particular, (9), is a particular to a ground as against the second respondent, not as against the first respondent.  The grounds of appeal against Professor Wood in the court below are relevantly at pages 88 and 91.  In 88 you have a repetition of a case put at first instance in ground 2 and you will see in the last three lines it asserts that he was “negligent in not arranging an angiogram and appropriate treatment”.

HAYNE J:   I am sorry, the suggestion of want of procedural fairness is one that needs to begin in the notice of appeal, does it not, and the appeal you were confronting.  Is that right?

MR GILMOUR:   That is so, your Honour.

HAYNE J:   Then, accepting that the ground to which I earlier referred deals with the position of the second respondent, what about application book 91, paragraph 5, a rather general ground, but incorporating particular (9)?

MR GILMOUR:   There is no particular (9) to ground 5, your Honour.

HAYNE J:   No, what I am pointing to is particular (1) incorporates particular (9) to ground 1.

MR GILMOUR:   There is only a number of paragraphs which is – the particulars that are relied upon are ground 1 and particulars (13) to (20) and under ground 3, particulars (9), (11) and (12).

HAYNE J:   I do not suppose it would be possible to make the notice of appeal more confusing, would it?  They seem to have done their best.

MR GILMOUR:   But we do not apprehend the respondent in this application to suggest that the case articulated by Justice McLure was run at trial, or indeed that it was run in the way that she found it as against Professor Wood on the appeal.  To the extent that there are oblique references in particulars which themselves are somewhat generalised is, with respect, no answer to the proposition that - no case was put that Professor Wood should have involved himself in discussions with Mr Chleboun to the end that by giving him information Mr Chleboun should have either come to different views to the cause of the occlusion or, alternatively, having come to a view that Professor Wood with his knowledge should have suggested that he might come to a different view.

Now, in our submission, your Honours, if those had been live issues at trial between the applicants, it is inevitable, in our submission, that they would have been separately represented.  It is highly likely that counsel for each of them would have examined and cross‑examined on those issues.  They would have had the benefit obviously, talking of particulars, of conducting their cases both in examination and cross‑examination in the light of defined particulars.

Even to this day, with respect to her Honour Justice McLure, Professor Wood does not know what it is that he should have told, never mind the case not being put.  He does not know what it is that acting reasonably he should have raised with Mr Chleboun which would have led Mr Chleboun to a different view.  That is the way it is put at 69 at page 116, and Professor Wood through his counsel would have been able to cross‑examine Dr Chleboun concerning his treatment and whether it would have differed, whether the respondent’s occlusion was chronic or acute.  Indeed, either of them may have determined to call additional expert evidence going to those issues.  Those are our submissions in relation to ‑ ‑ ‑

KIRBY J:   Mr Gilmour, subject to the procedure unfairness point, which I understand and on which I think we will have to hear the respondent, the other matters that you raise appear to be no more than an attempt to get the High Court to go through all the facts of this matter and to try for its own part, though a court of error, to be determining the facts again, and that really is not our role.

MR GILMOUR:   Well, with respect, no, your Honour.  We simply say that what Justice McLure - and the Chief Justice agreed with her - what her Honour did was to make a fundamental error of fact to this point, and this is exposed at paragraph 57 in her reasons ‑ ‑ ‑

KIRBY J:   I know that, but that very contention indicates that the error is not one of law or of general principle; it is said to be an error of fact in the performance by the intermediate court of its functions.

MR GILMOUR:   But it is not an error of fact, with respect, that would require the High Court to trawl through a whole deal of evidence.  The question is this:  the trial judge made a finding that by the time Mr Chleboun could have intervened by performing an angiogram, the damage to Mr Strempel’s leg had already occurred.  That is plain enough, and her Honour Justice McLure obviously just overlooked that finding.  She says there is no finding, but there was a finding, and that is at paragraph 299 at page 67 of the book.

The point of interest therefore is, she does not expose in paragraph 57 why she came to a different view by reference to expert evidence, because we say if general principles had been applied she could not have substituted some expert evidence that she relied upon which the trial judge did not in coming to a different view.  She just got it wrong, with respect, her Honour – because there is a clear finding at 299 that the damage had been done.

Now, there are two points, with respect.  One is that that is just a fundamental denial of justice to both of the applicants because they have been denied the verdict that they had in the court at first instance on a clear finding of facts supportable by a broad spectrum of expert evidence, none of which was challenged in the Court of Appeal, at least not directly, that the damage had occurred.

So this is not a case where we have a detailed analysis by the Court of Appeal of the expert evidence where it has exposed the expert evidence relied upon by the trial judge was either inherently improbable, completely lacking in logic, lacking weight for whatever reason; it is just a fundamental error made by the Court of Appeal which has now taken away the judgment which the applicants enjoy.

That is a short point, with respect, which, in our submission, ought attract the involvement of this Court, otherwise we have two professional men of longstanding in the medical community in Western Australia who have findings of negligence against them and a large award of damages against them, when there was a clear finding by the trial judge that would clearly say otherwise should have been the case.

HAYNE J:   Now, which particular lines on page 67 do you point to as ‑ ‑ ‑

MR GILMOUR:   The sentence commencing “Secondly”.  Her Honour the trial judge said:

Secondly, if as I accept the leg was gradually becoming ischaemic –

in other words, the blood flow was beginning to be reduced –

throughout 24 September –

that is the day of the operation –

and was ischaemic at around 10.30 am –

that means completely blocked at 10.30 am –

on 25 September, the damage to the plaintiff’s muscle –

that is necrosis of the tissue of the muscle –

had in all likelihood occurred by the time the second defendant was in a position to revascularise the leg.

There is an additional finding, your Honours, that is, we say, most plain.  Her Honour was very critical of the registrar, Dr Brankov, who attended Mr Strempel at around 10.30 on the 25th, because he was called in by the nursing staff and between paragraphs 84 and 86, her Honour refers to the findings that the recordings of no pedal pulses in the charts.  At 85:

Registrar Brankov felt the popliteal artery and heard it on doppler.

Then importantly at 86 her Honour, accepting evidence given by one of the experts, in the last sentence in that paragraph made this finding:

The palpation of a pulse in the popliteal artery is not inconsistent with a blockage –

that means a complete blockage –

in the popliteal artery if Dr Brankov felt the popliteal pulse above the blockage.  I find that this is what in fact occurred.

So there was a complete blockage at 10.30; that is another finding by her Honour.  So when her Honour Justice McLure held that the first indications of ischaemia were at 10 in the morning and the symptoms were acute by 1 and there is no reasonable basis for finding that irreversible damage had occurred is simply, with respect to her, incorrect.

That finding of the complete blockage, I might say, at 86 was adopted by Justice Le Miere who summarised the relevant findings of the trial judge, and he does so at paragraph 109 in the reasons of the Court of Appeal.  Justice McLure did not seek to distil the expert evidence and expose why it was that the finding by the trial judge was wrong, and that is contrary to principle.  The court proceeded in its majority upon that fundamental error and, with respect, in our submission, that is a short point which this Court could well deal with to restore the justice of the applicant’s position.  If the Court pleases.

KIRBY J:   Yes, thank you, Mr Gilmour.  Yes, Mr Zelestis.

MR ZELESTIS:   The starting point, of course, for this application is to recall that there is no attempt to challenge the finding made in the Court of Appeal that the vascular surgeon, Mr Chleboun, was negligent.  He was found to be negligent for failing to decide that an angiogram and associated procedures should be performed on the afternoon of 25 September.  The Court of Appeal, as I say, reversed the finding of the trial judge and made that finding.  There is no challenge from that, so the starting point is that the appropriate treatment was to conduct an angiogram, to poke a wire down and see if the blockage could be removed or to see if it could be removed by aspiration. 

Now, with respect to the contention that the case was not run against Professor Wood at trial, the orthopaedic surgeon who had done the knee operation, we address that clearly in our submissions ‑ ‑ ‑

HAYNE J:   Just before you come to that, Mr Zelestis, can I understand one point.  It may be more a question for Mr Gilmour than for you, but the defendants have always been jointly represented?

MR ZELESTIS:   Yes.

HAYNE J:   And yet there seem to be separate questions about negligence raised.

MR ZELESTIS:   Yes.  The answer to that point which I will come to – perhaps I should put now, and that is that the information which emerged during the trial which Professor Wood had which was important did not emerge by surprise from another witness.  It emerged from Mr Wood’s own mouth.  In other words, when he got in the witness box matters were revealed of which the plaintiff, the present respondent, had no prior means of knowledge and no knowledge, and what happened in the course of the trial of course is that, as often happens, when a defendant gets in the witness box, information emerges from him which is relevant.

The complaint that is put against us is, “Well, we should have had some warning you would use Professor Wood’s own evidence against him”.  With respect, it is a nonsense.  The matter was raised squarely in the grounds of appeal, as I will come to, but the starting point is that the case that both doctors should have concluded that an angiogram was required was run at trial.  We have set out the material in support of this at pages 188 to 189 where we set out the exchanges which happened in the opening, because this very point was taken against the plaintiff on the first day of trial. 

We set out at paragraph 37 an extract from counsel for the plaintiffs then opening and in the paragraphs which follow we have traced briefly the objection that was made.  We see at paragraph 39 that counsel, who was Mr Gilmour, said they would not take pleading points and they would take it that the respondent was running the case as opened.  That case as opened is at page 188, line 22.  Mr Gilmour specifically asked my learned junior whether the same case was put against both of the doctors and he got a specific answer at paragraph 38, line 25 on page 188 that it was.  Then at the end of the first day counsel for the doctors again raised the matter and the judge ruled that the case that had been opened was within the pleaded case – that is at the top of page 189 – and the matter proceeded.

Now, my learned friend’s description of the finding in the Court of Appeal with respect to Professor Wood is not quite right.  At paragraph 69, which is the paragraph to which he took you in Justice McLure’s reasons at page 116, the suggestion that is put to this Court is that Professor Wood was found negligent because, and only because, he failed to communicate information which would have changed Mr Chleboun’s view, but that is not what paragraph 69 says.

What paragraph 69 says, in effect, is that he was negligent in two respects:  one, he made no contribution himself, that is, he failed to bring to account his own knowledge and information and he failed himself to apply his own skill; secondly, he failed to communicate the relevant information to the other doctor.

KIRBY J:   Yes.  Well, I would ask you if you would – I think we are satisfied with your treatment of that matter, but there has been criticism of Justice McLure’s finding.  Can you deal with that in the rest of your submissions?

MR ZELESTIS:   Do I take it your Honours are referring to causation?

KIRBY J:   Yes.

MR ZELESTIS:   In respect of causation, the critical finding that my learned friend relies upon is the finding by the trial judge at paragraph 299 on page 67 where she says “the damage to the plaintiff’s muscle”.  Now, there was a challenge to that ‑ ‑ ‑

KIRBY J:   Yes, that is right.  Now, it is said that Justice McLure denied that finding.

MR ZELESTIS:   Yes.  The challenge to that was made clear in ground 5(3) on page 91, so there is no substance in the suggestion that this was an issue not raised in the Court of Appeal, because ground 5(3) says:

self evidently the vascular problem was not irretrievable by the afternoon of 25 September –

This is a particular of a ground attacking causation generally.

KIRBY J:   Yes.

MR ZELESTIS:   Because we apprehended that what Justice Jenkins seemed to be saying at paragraph 299 at page 67 was that the damage had happened and it was too late to intervene.  Now, the important mistake here that Justice Jenkins makes, if you read paragraph 299 carefully, is that she failed to recognise that with respect to the issue of causation, hindsight is appropriate.  One can have regard to facts of which one becomes aware after the event.

The critical fact that was learned after the event in 2000 as a result of another arteriogram was that this man’s popliteal artery was patent, that is, that it had never been chronically occluded.  From that, Professor Milne reasoned – and he was the expert called by the plaintiff whose evidence was preferred above all others by the trial judge – that the most likely cause of the occlusion was a soft thrombus which was capable of removal by aspiration associated with an angiogram.  This is made clear in Justice McLure’s reasons and in Justice Le Miere’s reasons. 

Perhaps I should go first of all to Justice Le Miere’s reasons where the passage is set out at page 150 at line 25.  I would invite your Honours to read quickly paragraph 230 and the quote from Professor Milne. 

KIRBY J:   Yes.

MR ZELESTIS:   That is only one of several passages in his evidence.  A different passage to the same effect appears in Justice McLure’s reasons at page 107 at the top of the page.  This is material extracted from cross‑examination of our witness, Professor Milne, below.

KIRBY J:   Yes.

MR ZELESTIS:   Now, Justice Jenkins, if one goes back to her reasons at paragraph 299 on page 67, you will see that the entirety of that paragraph fails to have any regard to the 2000 angiogram and its results and Professor Milne’s evidence.  Her Honour failed to recognise the importance of that evidence.  Now, there are other errors in her Honour’s approach with respect to the statement that she made that the damage had already occurred by the afternoon of the 25th.  Her Honour elsewhere said, for example, at page 60, paragraph 269:

that there were no clear symptoms of a compartment syndrome prior to the early hours of the morning of 26 September.

It was the compartment syndrome which caused the damage.  The next important piece of information is paragraph 123 at page 29 in her Honour’s own judgment where she describes what happened at the fasciotomy

operation in the early hours of the morning of the 26th.  The second sentence:

Although upon division there was muscle inside the anterior compartment which looked abnormal it twitched upon the first defendant testing it and so he decided not to do any debridement of the tissue in the hope that it would all survive.

So this is information after the afternoon when the man’s leg is opened up which showed that even then Professor Wood who did the operation did not think that there was irreversible damage.  He still thought muscle might survive.  Now, her Honour has completely overlooked that when she has come to deal with the question of causation later on.  She has overlooked the fact that you can have reversible or irreversible damage.  She has overlooked the evidence of Professor Milne that there was a soft thrombus which in all likelihood could have been removed.

KIRBY J:   We do not need any more assistance from you, Mr Zelestis.

MR ZELESTIS:   May it please your Honour.

KIRBY J:   Yes, Mr Gilmour, anything in reply?

MR GILMOUR:   Your Honour, what my friend, with respect, seeks to draw out of paragraph 69 of Justice McLure that somehow that goes beyond a case found that Professor Wood should have communicated information to Mr Chleboun upon which Mr Chleboun could have acted is, with respect, not warranted.  There is no finding by the Court of Appeal that Professor Wood should have performed or cause to be performed an angiogram.  That was the case he faced at trial.  That was the case that was put on appeal.  Indeed, you can see in paragraph 68 when referring to Professor Nade’s opinion, an orthopaedic surgeon, her Honour Justice McLure at the foot of 115 said:

The clear thrust of his evidence is that it is preferable for the surgical procedures (that is, treatment, including a fasciotomy) to be carried out by a vascular surgeon.  That falls well short of being almost bound to accept the vascular surgeon’s assessment –

Her way of dealing with it and the finding that she made was not that he should have performed an angiogram or had one performed, but that he should have communicated information which would have affected the treatment of the respondent.  Now, that is a substantially discrete and different case than one that was ever put against Professor Wood and he has not, with respect, had the benefit of a fair trial or an appeal to answer that case.  That is the only case that has been found against him in negligence.

HAYNE J:   Now, on that subject matter, at trial, on appeal and on the application for special leave no distinction has been drawn between the position of the two doctors.

MR GILMOUR:   There was no need to, with respect, your Honour, because, as between themselves, it has always been accepted that the vascular treatment, responsibility for the vascular treatment, lay with Mr Chleboun.  That is a matter as between those applicants.  That position changed in the way that the matter was put involving some interrelationship between Professor Wood and Mr Chleboun, the failure to communicate information resulting in a finding of negligence against him.  That is a different question, a different case and would have involved different considerations as between Professor Wood and Mr Chleboun. 

So for my friend to say that the case was put that Professor Wood should have conducted an angiogram, that is correct, but that is not how the Court of Appeal resolved the matter, nor, with respect, could they on the evidence.  The supposed challenge to be extracted by some means from ground 5 and particular (3) is, with respect, an obtuse reference.  Not even her Honour Justice McLure set out why there was a basis for finding that the popliteal artery was completely blocked at 1 o’clock rather than the finding of the trial judge based upon expert evidence that it was at 10.30.  If your Honours please.

KIRBY J:   Thank you, Mr Gilmour.  As we approach this application, it concerns mainly the elucidation of the facts in evidence.  The relevant principles of law are settled.  All that this Court would be doing, were it to grant special leave, would be to review the factual findings below and to apply the settled law to those facts.  We are not convinced that the complaint of procedural unfairness which was made for the first applicant has been made out or requires the intervention of this Court. 

We appreciate that the outcome of the application is important for the applicants.  However, we are not convinced that the case is one suitable for the grant of special leave to appeal to this Court or that, if leave were provided, such appeal would enjoy reasonable prospects of success.  Accordingly, special leave to appeal is refused.  It must be refused with costs.

AT 12.26 PM THE MATTER WAS CONCLUDED