Worley v Ambulance Service of New South Wales

[2006] HCATrans 527

[2006] HCATrans 527

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S166 of 2006

B e t w e e n -

STEPHEN PAUL WORLEY

Applicant

and

AMBULANCE SERVICE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 10.39 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.S. JONES, for the applicant.  (instructed by Forners Solicitors)

MR P.R. GARLING, SC:  May it please the Court, I appear with my learned friends, MR M.J. WINDSOR and MR C.L. LENEHAN, for the respondent.  (instructed by Frances Allpress)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  As your Honours know, this is a case where the negligence found at trial against the defendant arose from circumstances in which adrenaline was administered intravenously, whereas the plaintiff’s case was that intramuscularly, at most, would have been appropriate.  It had a disastrous effect, an effect which is in the nature of the natural history of the substance and of the condition.

The way in which the parties fought the case at trial rendered critical a description both of the plaintiff’s state or condition when the ambulance officers came to treat him and the manner in which they proceeded to treat him by reference to what are called “protocols”.  As your Honours have seen, the protocols are so called because, for people in the field they are intended to provide the rule, not to open up matters of academic or scientific debate or doubt but to provide a rule for rapid action within seconds or split seconds in the case of people who are on the point of death. 

Perhaps unfortunately in retrospect, embedded in what might be called a complex of protocols for the present case, was some Latin, “in extremis”.  It turns out that after all the evidence had been given in what turned out to be a six week trial, perhaps not surprisingly an ambulance officer had a different view of the Latin than some of the doctors, or indeed probably all the doctors.  But his Honour made a finding of fact at trial, application book 122, paragraph 150, and the English translation there offered is neither controversial as a matter of language, nor was it controversial as a matter of the expert and received opinion concerning the meaning of that expression.  In line 26 and following his Honour the trial judge held that:

All the medical practitioners who gave evidence, including Dr O’Connell, agreed with some such definition -

that is, “at the very point of death”.  Patients are “in extremis” if they:

will die if not resuscitated by means taken there and then.

Your Honours can immediately appreciate, without needing to go to the detail of the medical science, how that might justify the terrible risks which are run by the sudden influx of adrenaline, including into brain tissue, which will be accomplished by intravenous as opposed to intramuscular administration.

Dr O’Connell is significant in the trial judge’s reference there because Dr O’Connell might be regarded as the author of the relevant phrase.  I do not mean there was not a committee at work.  There almost certainly was a committee at work in the same sense as a…..has been unkindly described in relation to these protocols, but Dr O’Connell was the man responsible and hence the significance that we have sought to emphasise in our written summary in this Court on Dr O’Connell’s evidence. 

At page 246 of the application book, in paragraph 11 of our written submissions, your Honours will see an overtly, indeed, a validly selective extract from three of the protocols.  The protocols are in fact much longer than that, much longer than that, but the focus in that paragraph 11 is on the critical verbiage which, we submitted at trial successfully, could be seen historically as the explanation for the tragedy that occurred.

Your Honours will see in particular how the expression “in extremis” is most awkwardly related to asthma in protocol 201, line 25, but in relation to “Dose” is linked as well with anaphylaxis in what might be called a negative condition.  It is to be administered intravenously, et cetera, “until the patient is no longer ‘in extremis’”, as Dr O’Connell put it in his evidence, the implication being that you did not start it unless he was first in extremis.

Now, your Honours, that was the basis - much more simply stated now than a six week trial permitted, of course - upon which negligence was found against the defendant.  It was found upon particulars which your Honours will see reproduced at pages 170 and 171 of the application book.  Line 24, paragraph 9, which is the pleading of the cause of action, alleges that the plaintiff’s terrible injuries had been:

caused by the negligence/breach of duty of the Defendant ‑

and then follow what turned out to be some fatal words in the Court of Appeal:

through its employees, servants and/or agents.

In the particulars, while on that page, can I draw to your Honours’ attention in particular items (iii) and (iv).  The phrase “Failing to ensure” is a phrase which well and truly explains, not only at the time of the trial but in retrospect from today, why the parties chose at trial to spend as much forensic effort as they did on the devising and following, including the understanding of, the protocols.

GLEESON CJ:   I am looking at page 177, paragraph 30, in the second‑last sentence.

MR WALKER:   Yes.

GLEESON CJ:   Is that accurate?

MR WALKER:   Insofar as it goes, namely, that the focus of the trial was not on what I might call an administrative law piece of conduct, yes.  Insofar as it might tend to suggest that there was no criticism of the protocol, then plainly not.  Your Honours have seen reference to a number of findings of fact at trial concerning, for example, what the state of art required, in terms of intramuscular or intravenous and the indications in the patient and the level of suffering by the patient, as to whether IV or IM was appropriate.  So there is an essential accuracy - and we say this is an error by Justice Basten, of course - in the fact that the trial did not focus on simply the devising of a protocol. 

Ultimately, for example, as his Honour the trial judge held, even if one did not follow a protocol because it was confusing or you misunderstood it as an ambulance officer, there would be no actionable negligence, of course, if it turned out that what you did satisfied the legal standard found factually by reference to, among other things but not exhaustively, accepted and practised medical conduct.  His Honour the trial judge entirely dealt appropriately with the role, very important but not conclusive, of the protocol’s quality, but it is true that the trial judge did not regard the trial as simply a trial of the proper way in which the protocol should have been devised.  That was part, but by no means all, of the inquiry.

CRENNAN J:   There was a lot of expert medical evidence, was there not, about how quickly anaphylaxis could catch up on a patient?

MR WALKER:   Yes.  That is of course why the expression “in extremis” was so important.  Now, there is another matter of fact that your Honours have read that deserves emphasis.  There was no dispute that he was not in extremis.  Hence the importance of not only ascertaining whether or not the protocol called for that but, also, as the trial judge correctly proceeded, even though he was not in extremis, even though the protocols properly understood require that he be in extremis for intravenous administration, that is not the end of the story in favour of the plaintiff because what was done might still nonetheless satisfy the civil standard duty of care.  His Honour then found that it fell below that.

Now, our complaint, as your Honours have seen, is obvious danger of being characterised as simply a complaint, one off, about a particular case on the facts.  It is, in our submission - particularly after a trial seeking compensation for breach of duty of care by those whose job is to care - a matter calling for intervention by this Court where there were, in the manner that we have set out in our written submission, such large departures in the Court of Appeal from the way in which the parties have framed and chosen to fight the matter at trial, a very careful trial judgment dealing with expert evidence and, as your Honours have seen, dealing with expert evidence in a way at page 122, as I have already drawn to attention, recorded a simple, obviously correct finding about what “in extremis” meant.

Justice Basten goes to material which was not the subject of controversy at trial.  He makes a finding which, in our submission, removes a central plank of finding at trial level without identification of any error.  In our submission, this is a case where there has been an intervention by the Court of Appeal on the false basis of reframing issues which had been properly framed and fought by the parties, and on the basis of substituting a conclusion, at many levels of remoteness from primary facts, without identifying any error in the trial judge having reached an opposite conclusion. 

Your Honours, the other matter that, in our submission, lifts this case out of a simple, single instance of grievance by the unsuccessful party in the Court of Appeal is the approach taken by Justice Basten, to which we have drawn attention in our written submissions, by which a fatal defect his Honour found appeared in the way in which the case had been presented by the plaintiff by failure to distinguish between what was called “vicarious and direct liability”.

Now, we have, by taking your Honours to page 170 and to paragraph 9 of the pleading, already drawn to attention the way in which the case was pleaded.  The way in which the case was fought is well set out by the exchange of written submissions in this Court and can be found throughout the whole of the trial judge’s reasons and it is a manner of fighting the issue which involved not only what the officers actually did – that is not in doubt – but also how that compared with the protocols, the protocols having been understood and having been subjected to some criticism, including as to what we would ask your Honours to find is the manifest capacity of the protocols to be confusing.

Now, it maybe is with the benefit of hindsight that one can strip down the protocols to the very compressed extracts that I have drawn to attention at page 246, but that remains the essence of the matter which was debated at great length and in great detail and wholly successfully for the plaintiff as to the plight that not only my client was in but the ambulance officers were in.

Now, for those reasons, in our submission, the way in which the parties fought this case, which included the question whether the protocols were confusing – so leave aside clinical content, just linguistic content – that shows that a responsibility of the Ambulance Service for its protocols, as well as for the actual physical conduct of its officers, was well and truly in the ring and properly determined by his Honour.  The Court of Appeal should not have taken away - reversed that judgment on a ground concerning a distinction which had not played a critical role at trial. 

That is why, in our submission, the Coulton v Holcombe point arises.  The only recourse for a party who has suffered a setback in the Court of Appeal, where the Court of Appeal has changed the way in which the case was presented, fought and decided at trial, for the purposes of the Court of Appeal’s adjudication, is to come to this Court.  In our submission, it is for those reasons that this is a case which presents an instance of an injustice which requires to be repaired in this Court.  May it please the Court.

GLEESON CJ:   Mr Walker.  Yes, Mr Garling.

MR GARLING:   In our respectful submission, the Court of Appeal’s judgment is correct and no question which merits a grant of special leave arises.  Your Honours, the background to the provision of ambulance services is clear.  Ambulance officers are not entitled to prescribe drugs.  They are not appropriately qualified.  Protocols dictate when they can in certain circumstances administer drugs which would otherwise need to be prescribed on an individual basis.  The question then, when an ambulance officer attends, is, as the plaintiff says, was the treatment negligent? 

Now, if it was not by any reasonable contemporary standard then that would be the end of the matter, but if the result of the treatment or the treatment itself was negligent, that is not a basis for a plaintiff to succeed by itself because the question arises in this way.  Firstly - it is necessary to deconstruct it - did the ambulance officer follow the protocol?  If so, was the protocol itself an appropriate protocol having regard to the purpose for which it was instituted? 

They are the two questions which were deconstructed and are necessary to be by the Court of Appeal.  On those questions the court found that the ambulance officer did follow the protocol.  That is unsurprising, your Honours, because when an ambulance officer comes to deal with the protocol in the field the ambulance officer comes to that against a background of firstly, what the protocol says, secondly, what they are trained with respect to that protocol, and thirdly, what their experience is in applying it.

The only evidence that was given about the understanding of the protocol was that given by the relevant ambulance officer’s colleague.  The relevant ambulance officer, your Honours, had died by the time of trial.  His accompanying colleague gave evidence as to what he understood the protocol meant and that is recorded at page 195 in paragraph 78.  This is the central question my learned friend complains that the Court of Appeal got wrong.  He also complains that there was no debate about this at trial.  What the ambulance officer said was, in answer to this question:

“Q.     As an ambulance officer, did the expression ‘in extremis’ have some meaning for yourself?
           …
A.       Yes it did.

Q.Is it contained in a training manual or in a protocol somewhere?

A.       It is contained within the protocol that patients who present –

with particular signs, which are there listed, are:

compromised, therefore would be classified as being in extremis.”

Now, there is no doubt that Mr Worley’s presentation included one or more of those signs.  The ambulance officer said, “In the field that is how we apply it”.  The Court of Appeal found that by inference one should accept that his colleague applied it in the same way.  The meaning there at page 195 was not subjected to any cross‑examination at trial, so the ambulance officer was not challenged as to whether he had been trained differently or he should interpret it a different way.  He said, “That’s the way we do it”.  It is unsurprising in that circumstance, your Honours, that the Court of Appeal would find that the ambulance officer in the field applied correctly the protocol.  That is what Justice Basten did in his first question standing behind the judgment. 

The second question then became, “Well, what of the protocols?  Were they appropriate or not?”  On that question, we submit, the evidence was, as we put in our submissions, all one way, namely, they were considered by a committee.  The committee consisted – and no challenge is being suggested to this – of appropriately qualified people:  emergency medicine experts, ambulance officers and the like.  They were confronted with a range of a debate within the medical profession about adrenaline and its administration path and its dosage.  They fixed on a particular protocol.  They changed it in 2001, having kept it under review.

In those circumstances, your Honour, there was more than abundant basis for the Court of Appeal to find on that second deconstructed question that the Ambulance Service was not negligent.

GLEESON CJ:   Well, at what point did you come to grief before Justice Barr?

MR GARLING:   Well, the point upon which we came to grief is that he held that the ambulance officer ought not to have applied the protocol requiring administration of adrenaline because the patient was not in extremis.  Therefore, the ambulance officer acted inappropriately.  He should not have administered adrenaline intravenously and he administered too much too quickly.

GLEESON CJ:   Justice Basten said it is unlikely as a matter of interpretation that the protocol required the ambulance officer to make a judgment about how close to death a person was.

MR GARLING:   That was described as the fine judgment point.  Is the patient one minute away from death, two minutes, or the like, in a condition, as her Honour Justice Crennan identified earlier in a discussion with my learned friend, a deteriorating condition or a condition which could rapidly deteriorate?

GLEESON CJ:   Was it put before Justice Barr or accepted by Justice Barr that in practical terms what “in extremis” meant was that you could give adrenaline to somebody in this manner in circumstances where they will die if you do not do it?

MR GARLING:   He found that one had to be at the point of death before you could give adrenaline in this manner.

GLEESON CJ:   And is the corollary of that that you form a judgment that if you do not give adrenaline, the person will die in this manner?

MR GARLING:   Yes, but his Honour held that one had to wait till that last moment, in effect, before administering it.  Now, your Honours, leaving aside the difficulties presently faced by the applicant, that would place ambulance officers in an almost impossible position in the field, waiting for that nice moment in time where one could say, “Now this patient is at the point of death”, hence, the logic and rational basis and commonsense basis

of that definition that Mr Parsell articulated in his evidence, which I drew to the Court’s attention at page 195, if it has one of these various particular signs, then that qualifies and one administers the drug.

Your Honours, it is a question of fact.  The Court of Appeal approached it, we submit, in a rational and correct way.  It is not a matter which would warrant a grant of special leave.

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   On that last point, your Honours, it is paraphrased, as it fell out in exchange between the Chief Justice and my learned friend, the way in which the case was put at trial.  See again page 122, paragraph 150:

patients who will die if not resuscitated by means taken there and then.

Now, such issue, which was raised by the defendant at trial concerning the inappropriateness of the label “negligent” for an ambulance officer who mistook the state of a patient, falls away as an issue in this case because it was common ground he was not in extremis and certainly, a finding not capable of being challenged credibly in the Court of Appeal and is not open were this Court to grant special leave.

One can observe, of course, that it is likely that ambulance officers are to the forefront of any group of people who would be counted as to be able to tell whether somebody is about to die.  Now, those are not issues which, in our submission, can be seen to have been dealt with in the Court of Appeal as error on the part of the trial judge.  Error is not identified or argued.  That is the first point.

In relation to Mr Parsell’s evidence, to which my learned friend took you at pages 194 and 195, it is to recall that the following is the forensic course.  The experts called by the plaintiff had all come and gone and been cross‑examined or not without it ever having been suggested to them that Mr Parsell’s understanding of what “in extremis” meant is what the phrase in fact meant correctly, to use the word my learned friend used in his argument.  Mr Parsell was not an expert.  Indeed, that falls out from the way in which his status is described by my learned friend today.  He is not a medical practitioner in a position to prescribe let alone to describe the conditions for prescription of a drug, let alone a dangerous one. 

Mr Parsell’s evidence is, if I may put it this way, in paragraph 78 of Justice Basten’s reasons and what follows from that, seized upon as if it were an equivalent piece of evidence against which or in light of which criticism can be expressed of the plaintiff’s presentation of its case and

testing of the defendant’s case on the meaning of “in extremis”.  It has an entirely different character, one entirely supportive of the plaintiff’s success below which, in our submission, indicates the injustice which was perpetrated in the intermediate Court of Appeal. 

It has this character; when the experts on both sides agree on what “in extremis” means, as they did – his Honour held that, no error is shown in that finding - and someone who is not an expert, who is the colleague of the man who actually tried to follow the protocol – no lack of good faith or good intention was ever alleged – then it is clear for the very reason my friend puts, namely, that that was inferential support for what the deceased ambulance officer had thought, it is clear that we had here the living demonstration of the confusion capable of being raised by the way in which the protocol was expressed. 

If there was to be any use of Mr Parsell’s evidence on the intermediate appeal it was to reinforce the confusing character of the protocols which provides the historical explanation of why well‑meaning people may, nonetheless, themselves be negligent and thus the defendant vicariously liable or why the defendant would be negligent for failure to give them, as it were, better assistance in the field by better protocols.

It is for those reasons, in our submission, that the forensic course, which I stressed did not include the defendant ever cross-examining the plaintiff’s witnesses to suggest that Mr Parsell’s inexpert version was correct, could not be used by Justice Basten to have said that the ambulance officer correctly followed the protocol.  Rather, it tends to show that the ambulance officer, for reasons that one can assume and regard as being in good faith, did something which fell below the acceptable standard applicable to the Ambulance Service.

It is for those reasons, in our submission, that the huge shift in the discourse on appeal compared to the way in which it had been thoroughly investigated at trial is something which only this Court can repair.

GLEESON CJ:   The outcome of this case in the Supreme Court turned upon matters of factual judgment and the case does not give rise to an issue suitable to a grant of special leave.  In addition, we are not persuaded that the interests of justice require such a grant and the application is dismissed with costs.

AT 11.06 AM THE MATTER WAS CONCLUDED