Young v CAACI - [2008] NTSC 47

Young v Central Australian Aboriginal Congress Inc & Ors [2008] NTSC 47

PARTIES: YOUNG, Rosario (as representative of the
family of CLIVE HENRY IMPU)
v
CENTRAL AUSTRALIAN ABORIGINAL
CONGRESS INCORPORATED
BOFFA, John Dominic
CGU INSURANCE LIMITED
(ABN 27 004 478 371)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN
TERRITORY exercising Territory jurisdiction
FILE NO: 61/03 (20303381)
DELIVERED: 19 November 2008
HEARING DATES: 11-21 February; 25 & 26 August 2008
JUDGMENT OF: THOMAS J
CATCHWORDS:
TORTS -- NEGLIGENCE -- DUTY OF CARE opportunistic follow-up system – serious administrative errors – failure of clinic to follow-up deceased’s diagnosis – failure of clinic to follow-up deceased’s treatment
TORTS -- NEGLIGENCE
Vicarious liability of clinic against doctor – direct liability of clinic against doctor –
whether insurance company liable to indemnify clinic for administrative error of medical
practitioner – whether medical practitioner failed to properly diagnose – whether
medical practitioner failed to properly treat – whether medical practitioner failed to
follow-up – systems in place at clinic at relevant time
TORTS -- NEGLIGENCE -- CONTRIBUTORY NEGLIGENCE distinguished.
Failure of patient to keep appointment – failure of patient to follow up recommended
tests – failure of patient to mention at subsequent attendances his failure to attend
recommended tests and appointments – failure of patient to mention at subsequent
attendances the concerns of the initial medical practitioner
TORTS -- NEGLIGENCE -- SOLATIUM FOR DEATH OF PARENT -- SOLATIUM
FOR DEATH OF SPOUSE
DAMAGES -- MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR
TORT -- CAUSATION
Whether breach of duty caused or contributed to harm – whether administrative error
caused or contributed to the harm – clinic’s failure to follow-up – systems in place at
clinic
Compensation (Fatal Injuries Act), ss 7, 11(1), 13
Law Reform (Miscellaneous Provisions) Act, pt V
Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542; Elilade v Nonpareil
Ltd (2002) 124 FCR 1; Ellis v Wallsend District Hospital (1989) 17 NSWR 553; Kondis
v State Transport Authority (1984) 154 CLR 672; Rogers v Whitaker (1992) 175 CLR
479; Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corporation Ltd
[1974] QB 57; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.
X (minors) v Bedfordshire County Council [1995] 2 AC 633, considered.
REPRESENTATION:
Counsel:

Plaintiff: P Barr QC & A Lindsay
First Defendant: S Gearin
Second Defendant: H Abbott
Third Party J Kelly
Solicitors:

Plaintiff: Povey Stirk
First Defendant: Collier & Deane
Second Defendant: Morgan Buckley
Third Party Minter Ellison

Judgment category classification: C
Judgment ID Number: tho200805
Number of pages: 125
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Young v Central Australian Aboriginal Congress Inc & Ors [2008] NTSC 47

No. 61/03 (20303381)

BETWEEN:
YOUNG, Rosario
Plaintiff

AND:
CENTRAL AUSTRALIAN
ABORIGINAL CONGRESS INC
First Defendant

BOFFA, John Dominic
Second Defendant

CGU INSURANCE LIMITED
(ABN 27 004 478 371)
Third Party

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 19 November 2008)

The plaintiff claims the defendants are liable to an action for damages in
negligence pursuant to s 7 of the Compensation (Fatal Injuries) Act.
The claim arises from the death of the plaintiff’s spouse, Clive Henry Impu,
on 26 January 2001.
The plaintiff sues pursuant to s 13 of the Compensation (Fatal Injuries) Act for her own benefit and for the benefit of the children:

• Bruce Impu born 19 September 1994
• Norman Impu born 17 July 1996
• Raelene Impu born 5 October 1999.
Introduction

The plaintiff was born on 6 October 1971. The deceased was born at Alice
Springs on 8 February 1975. The plaintiff and the deceased formed a

relationship in 1992. They subsequently had three children, Bruce Impu
born 19 September 1994, Norman Impu born 17 July 1996 and Raelene Impu
born 5 October 1999.

The deceased died at the Alice Springs Hospital on 26 January 2001. The
deceased was 26 years of age at the time of his death. The cause of death

was coronary thrombosis. The comments of the pathologist on the autopsy
report (Exhibit P8) were as follows:

“1. The cause of death was coronary atherosclerosis (ie. fatty
narrowing of the coronary arteries which supply blood to the
heart), which resulted in coronary thrombosis (ie. the formation
of a blood clot in a coronary artery) and consequent damage to
heart muscle, with failure of the heart as a pump.
2. The presence of scarring of the heart muscle (ie. myocardial fibrosis) is consistent with the effect of long-standing coronary artery disease.”

The history of the deceased including his medical history will be detailed in
subsequent paragraphs of these reasons for judgment.
The plaintiff’s case against the first defendant (Central Australian
Aboriginal Congress Inc) is an allegation of negligence in failing to follow
up the deceased’s diagnosis and treatment, in particular, failing to follow up the recommended testing of his blood cholesterol levels and failing to follow

up the deceased’s referral by Dr John Dominic Boffa to a specialist
physician for assessment of suspected ischaemic heart disease.

The additional case against the first defendant is that it is vicariously liable
for the negligence of the second defendant Dr Boffa.
The plaintiff’s case against the second defendant (Dr Boffa) is an allegation
of negligence for failing to properly diagnose and/or treat the deceased on 2 March 2000 and in then failing to follow up on the deceased’s diagnosis

and treatment for suspected ischaemic heart disease, in particular, failing to
follow up the recommended testing of the deceased’s blood cholesterol
levels. The details of the “clinical and administration failures of Dr Boffa”

as claimed by the plaintiff and the third party are set out later in these
reasons for judgment.

The causes of action against Dr Boffa and Congress are for the breach of

separate and distinct duties. It is not in dispute that the plaintiff attended
Congress on 2 March 2000 and consulted Dr Boffa. Dr Boffa made notes of
this consultation. He made an appointment for the deceased to attend a
fasting cholesterol test. He made a further appointment for the deceased to

attend the next specialist Physician Clinic which was scheduled for
21 March 2000 with a suggestion that the deceased be given an exercise
electrocardiogram (exercise ECG).

The evidence is that the specialist clinic for 21 March 2000 was cancelled.
The deceased failed to attend appointments made for him to undertake a
fasting cholesterol test and subsequently the specialist clinic. The doctor in
charge of the specialist clinic on 21 March 2000 had, unbeknown to her, been given the wrong file. The file she received was the file for another
person with exactly the same name as the deceased. As a consequence of
this there was no follow up action by Congress with the deceased about his
failure to attend the Clinic.
There is evidence that on other occasions the deceased did return to
Congress and was attended by doctors and health workers. He did not return
to consult Dr Boffa. He also attended upon doctors at Alice Springs
Hospital with a variety of symptoms. At no time did he advise the doctors

at Congress or at Alice Springs Hospital about his consultation with
Dr Boffa on 2 March 2000.

Liability has been denied by both defendants. The alternate position of the
defendants is that if negligence is established then any loss or damage which

may be proved by the plaintiff was caused or materially contributed to by
the deceased.

The particulars of contributory negligence, as set out in the “Second
Defendant’s Defence to Further Amended Statement of Claim”, which were
adopted by counsel for the first defendant in submissions, are as follows:

“8.1 The deceased failed to keep the appointment at the physician
clinic on 21 March 2000.
8.2 The deceased failed to follow up with the first or second
defendants or any other doctor the fasting cholesterol test, the
exercise ECG test or a further specialist appointment.
8.3 The deceased failed to mention to the doctors at the first
defendant’s clinic on 23 April 2008, 8 May 2000 or
29 December 2000 or at any other time the fact that he had not
undertaken either of the two tests or seen a specialist.
8.4 The deceased failed to mention to doctors at the Alice Springs
Hospital on 15 August 2000, 3 December 2000 and 30
December 2000 the symptoms which he suffered on 2 March
2000 and of which he complained to the second defendant on
that day and the first defendant’s reference to the possibility of
ischaemic heart disease and his referral for tests and specialist
opinion.
8.5 The deceased failed to go back to the first defendant’s clinic or
the second defendant for further consultation and treatment
following the further symptoms he suffered on 15 August
2000, 3 December 2000 and 30 December 2000.”

The first defendant filed a Statement of Claim and third party notice upon
the third party. The third party filed a defence and subsequently an

amended defence which essentially admits that the third party agrees to
indemnify the first defendant for the part of the claim against the first
defendant arising from the provision of professional services which included
inter alia nursing and administrative services to the extent of the policy. In

accordance with the specific exclusion contained in the policy, (Item 9 of
the Schedule) the third party would not indemnify the first defendant for
that part of the claim against the first defendant with respect to the alleged
vicarious liability of the first defendant for the medical practitioners in
particular the second defendant.

This amended defence by the third party initially also applied to the third
defendant, Noel Robert Morrison, however, the claim against the third
defendant has been resolved and is not the subject of adjudication in these
proceedings.
Background of the deceased
The deceased was born at the Alice Springs Hospital on 8 February 1975.
The deceased was a traditional Arrente aboriginal man. He spoke English,
Eastern Arrente (Western Arrente), Pitjantjatjara and Luritja. His country included the Undarana Outstation. He had gained experience working with
livestock and acquired associated manual skills such as fencing and welding.
In addition to this the deceased attended school at Amoonguna in
Hermannsburg, Sadadeen in Alice Springs and Kormilda in Darwin (Exhibit
D6 p145).
On 1 May 1996, the deceased took up a full time position with Alice Springs
Hospital as an Aboriginal Liaison Officer. He was engaged essentially as an
interpreter. He held this position until 3 March 1997. From 6 March 1997,
he was engaged in the same work as a temporary employee to 16 June 1997.
The deceased had a number of convictions for criminal offences. On
29 November 1994, he was convicted of assault and sentenced to nine

months imprisonment. He was released on 22 May 1995 after he had served
approximately six months.

On the same date, 29 November 1994, he was also convicted of stealing,

unlawful entry and unlawful use of a motor vehicle. He was released
without penalty on a 12 month good behaviour bond.

On 29 August 1996, he was convicted of offensive behaviour. This was an
act of offensive behaviour toward his wife in that he continued to call his wife “a fucking slut” in the carport of the Bloomfield Street flats in Alice Springs. He was fined $200.
On 15 September 1997, he was convicted of unlawful entry/criminal damage

and sentenced to two years and six months imprisonment with a non parole
period of 15 months.

On 13 March 2000, he was convicted of assault female and released on a
12 month good behaviour bond.
The information concerning his prior convictions is contained in Exhibit D5.
His prison records are contained in Exhibit D6. There is a note on page 29

of this exhibit, dated 6 April 1995, that states “Prisoner has a positive
attitude and is of a bright [and] cheery nature”. This report also notes that
he had completed the Ending/Offending Course.

On a file note dated 27 October 1997 (Exhibit D6 p65) it is noted that the
deceased had previously worked with the Alice Springs AIDS Council. He
facilitated the AIDS Council and STD’s Education program in gaol.
A file note dated 11 July 1998 (Exhibit D6 p95) states:

“(a) At work:
Currently working in Education assisting the Education Officers. He has been noted as an Excellent Worker.

(b) General:
Since the “Camera” incident on the 17/4/98, his conduct has been satisfactory.”

On 18 October 2005 he was awarded two Workskills Training Certificates
(Exhibit D6 p99-100).
A further report dated 7 April 1998, prepared by a Senior Community
Corrections Officer, is included in Exhibit D6 (p155). The first two
paragraphs of this report state:
“I met Clive today. He is in the cottages and has been attending the
horticulture course since March, 1998. He presented as an
intelligent, well spoken and educated man. He was very forward
with his responses and advised the plans he has thought of.
He intends to apply for parole and said he understands what he needs to do. He still wishes to remain in town so he can ‘learn’ about parole and may look to go elsewhere when he has settled. He wishes to reside with his wife Rosario Young at House 17 Larapinta Valley. He has two children. He said he was living in town prior to going to gaol most of the time.”
The deceased had been given an ultimatum by his wife, following the

commission of his offence of unlawful entry/criminal damage for which he
was convicted on 15 September 1997, that if he did not behave himself in
the future, she would leave him and take the children.

When released on parole on 11 December 1998, he lived at Undarana with
his family and complied with his conditions of parole including a condition
that he not drink alcohol (Exhibit D6).

[33] At Undarana the deceased was paid Community Development Employment
Program (CDEP) wages. He worked doing fencing and stock work. Whilst
he was on parole his wife, Rosario Young, became pregnant with their third

child. A file note from his probation officer dated 3 August 1999
(Exhibit D6 p87), states that Rosario Young was flown to Alice Springs
because of complications with her pregnancy. On her return to Undarana the
deceased cared for his wife as best he could (Exhibit D6 p69).

Raelene Impu was born on 5 October 1999. Rosario Young stayed with her
in hospital for “a couple of months”. The deceased looked after their two
boys at Undarana. However, because of complications with Raelene (she
had a “patch on her lungs”) the deceased would come into Alice Springs
from time to time.
The deceased reported to his parole officer on 2 December 1999 (Exhibit D6
p32), that he would like to have members of his family at his outstation
involved in a project supported by the Mereenie Management.
On 10 March 2000, the deceased completed his parole and had positive plans
for the future and work that he would be involved with (Exhibit D6 p11).
The deceased and Rosario Young with their two sons moved back to Alice
Springs. By August 2000, it was suspected that Raelene had tuberculosis.
Rosario Young commenced a thrice weekly attendance at Congress for

medication for Raelene (Exhibit D45 p30). There was also a period of
inpatient treatment. Due to Raelene’s illness, the family were residing at
Hidden Valley camp. The deceased did not take up the work opportunities
he had at Undarana Outstation. Shortly prior to his death, the family had

established a family home in Kurrajong Drive so that they would be close to
the hospital (evidence of Rosario Young tp 40).
Background of Rosario Young

Rosario Young is a traditional eastern Arrente aboriginal woman, born at
Santa Theresa. Apart from six months schooling in Melbourne, Rosario

spent all her early years at Santa Theresa and attended the community
school. After leaving school she did CDEP work at Santa Theresa.

At a young age she had an arranged traditional marriage with an aboriginal
man from Hermannsburg. They had two children. The marriage broke down and she returned to Santa Theresa to live. Rosario Young gave evidence she fell in love with the deceased while he was working at Santa Theresa. He

was three years younger than herself. Their relationship was not in
compliance with aboriginal law and did not have the approval of their
respective families. They eloped to Katherine. Rosario Young gave
evidence that at the end of one year they received word their relationship
had been approved. They returned to Undarana. The evidence of
anthropologist, Jane Lloyd, is that the birth of their first and second child
cemented approval of their relationship. There were three children born to
the relationship, Bruce Impu born 19 September 1994, Norman Impu born
17 July 1996 and Raelene Impu born 5 October 1999.

Rosario Young gave evidence she lived with the deceased and their two
young children until the birth of their youngest child Raelene. Raelene was
diagnosed with tuberculosis. The plaintiff had to stay in the hospital with
her baby. During this time the deceased remained out bush with the two
boys, Norman and Bruce. Rosario Young then had to stay in Alice Springs
to take Raelene to Congress for medication. The deceased worked at
Gondawana doing fencing and stock work. He had the two boys with him.
The deceased gave his money to Rosario. The family obtained a house in

Kurrajong Drive, Alice Springs because of the need for Raelene to attend
Congress frequently.
[41] Rosario Young gave evidence, under cross examination by Mr Abbott,

counsel for the second defendant. She was being asked about a note on the
deceased’s medical record that the deceased had told the doctor on New
Year’s Eve 1999, that he was under a lot of stress with his partner. Rosario
gave the following evidence (tp 90-91):
“Was that true, that you and he were undergoing a lot of stress in
your relationship?---No.
Can you think of anything about your life at that time, New Years Eve 1999, which might explain why he would tell that to the doctor, that you and he were undergoing a lot of stress?---We did have a row.
A row, did you say?
THE INTERPRETER: Yeah. We did have a row.
MR ABBOTT: What was that row about?---Because he used to go in the car to nightclub, you know.
To what, sorry?---He used to go in the car. He used to go in the car all the time, you know, til dark. Not every time but sometimes.
And did you know where he went?---No.
You wanted him to stay at home, did you?---Yes.
Where did you think he was going?---I don’t know.
You must have had some idea. Where did you think he was going that led you to get angry with him?---He used to say he’s going to see the family.
And what was your problem with that?---I was want him to stay with me.
Did this problem, excuse me, go on for a long time?---No.
For how long? It wasn’t just a one-off argument was it?---No, just probably two days.
That’s all? Two days? You can remember just two days or arguments about that thing, can you?---We had a row at home only twice, at 38.
And what was the other argument about?---He wanted two wives.”

Rosario Young gave further evidence that she refused this request and the
deceased had accepted this (tp 92). Under re- examination Rosario gave the
following evidence on this topic (tp 125-126):
“All right then. Rosario, yesterday you told us … that Kwementyaye
came to you and asked your permission to have a second wife. You
remember that yesterday?---Yes.
Now, in the Aboriginal way, does the husband ask his first wife if he can have a second wife?---Yes.
And do some Aboriginal women say yes?---Yes.
And do others say no?---Yes.
And you told us yesterday that you said no?---Yes.
Why did you say no?---I told him that if he want that other woman, to leave me and go, but I have my kids with me.
So you would leave him and go if he took a second wife?---Yes.
And did you have experience in your family of men who take on one wife, two wives and so on?---Yes, my grandfather.
Yes. How many wives did your grandfather have?---About three or four.
And did they live together in the same place?---Yes.
And was that something that you had in mind at the time you spoke to your husband about this issue?---Yes.
And was there something that you thought was wrong with living with three or four wives with one husband?---Yes.
What objection did you have to it?---Usually the men, they just sit around and just wait for the women to do everything.
So the men sits around and waits for the woman to do everything?---
Yes.
And you didn’t want that, is that right?---No.”
The evidence of anthropologist Jane Lloyd, is that it is common for

aboriginal males in this region to have an expectation that it is possible for
them to have a second wife. Ms Lloyd stated the first wife does have the
right to refuse, although the first wife is not always able to refuse.
Ms Lloyd stated that in her experience when the first wife is able to exercise
her right to refuse, then the husband will accept this. Ms Lloyd gave

evidence that a request for a second wife is a desire for the status and
benefits of a second wife rather than signifying anything about the quality of
the relationship with his first wife.

Rosario Young, the deceased and their three children were living at the
family home at Kurrajong Drive, Alice Spring as at the date of the
deceased’s death.
In accordance with Arrente custom, on the death of the deceased, the family

was obliged to leave the house in Kurrajong Drive and their possessions
were taken away from them by the deceased’s family. The three children
were also taken from Rosario Young by the deceased’s family for a period
of one year. Rosario Young gave evidence this is in accordance with
aboriginal law. She also gave evidence about her anger because she was
forced to stay away from her children (tp 42). She felt lost, lonely and
started to drink too much. She travelled as far as Borroloola.

At the completion of one year, she was reunited with her children. They are

now living in a town camp. Rosario Young gave evidence as to the
pressures and stresses of living in a town camp. She does not have a
husband to turn away drinkers and trouble makers. She is subjected to the
jealousy of other women. It is not a lifestyle she would have chosen had her
husband not died.
Medical history of the deceased prior to 2 March 2000

This is contained in the Alice Springs Hospital file (Exhibit D3) and the
Congress file (Exhibit P13).
The Alice Springs Hospital file (Exhibit D3) refers to an admission on
18 February 1978 when at the age of three years the deceased reportedly fell
from a moving car in which he sustained grazes and a fracture to his lower
right arm.
On 25 May 1977, he had been admitted with a history of coughing and
vomiting with fever.
On 21 July 1980, he was admitted with a history of jamming his right thumb
in a door.

[51] Subsequent admissions include an admission involving surgical

reconstruction of his distal urethral sub-incision performed in November
1998. In 1989 he was reported to be suffering a long history of severe
headaches. On 18 September 1992 he is reported to have cut his right palm
when he got caught in between a fight and tried to catch a knife. On 24 June 1993 he sustained an injury to his left ankle in a basketball game. On 3 July
1994 he is reported to have sorry cuts to his right thigh. On 25 September
1996 he was suffering a painful throat. On 3 July 1997 he is reported to
have had pilonidal sinus for 11 years.

The Congress file (Exhibit P13) commences with an attendance on 5 January
1997 to obtain dressing material. On 31 December 1999, the deceased

attended complaining of pins and needles in both hands and fingers. There
had been no recent trauma to his spine and no chest pain. Results of the
examination were noted It was also noted:
“A lot of stress with partner. Advised strongly to seek medical help
if chest pain + further problem.
Spoken to wife
- started as about to have an argument.
- started at feet & bilateral tingling hands & feets.
- Stress +++ in family.
- symptoms going on for a long time.
(initialled)”

The deceased’s attendance upon Dr Boffa on 2 March 2000

Dr Boffa is a specialist general practitioner. He is an accredited training

supervisor in general practice having received that accreditation as a
training supervisor. He is the public health medical officer with Central
Australian Aboriginal Congress. He commenced working for the first
defendant in 1994 as a medical officer.

Dr Boffa outlined his experience with ischaemic heart disease in aboriginal
people having worked in Tennant Creek from 1988 until joining Congress in
1994. He wrote the protocols in the CARPA manual on coronary heart
disease. The curriculum vitae for Dr Boffa is Exhibit D20. The 1997

edition of the CARPA manual is Exhibit D21. Page 52 of the manual is
headed “Chest Pain Assessment”. Dr Boffa gave evidence it can be hard to
work out the cause of chest pain. Page 52 of the manual sets out the
protocols for making the assessment and page 53 sets out the things that can
cause chest pain. The protocol, when a person presents with a heart attack
or unstable angina, includes sending the person to hospital straight away by
ambulance. I accept the evidence of Dr Boffa that by 2 March 2000 he was
well aware of the prevalence of ischaemic heart disease in the indigenous
population, that it could occur in young men who may otherwise look well
and could present with atypical symptoms.

As at 2 March 2000, Dr Boffa was employed by Congress. There were

seven or eight other doctors employed as well as administrative staff and 15
indigenous people employed as health workers. Some doctors also had
administrative duties. Dr Boffa was the Public Health Medical Officer and Dr Tatjana Janusic was the Medical Officer Co-ordinator which meant half her time was allocated to administrative duties and as part of that role, she
would allocate administrative and clinical tasks to other doctors.

Patients at Congress were not allocated to particular doctors. They would be

seen by the first doctor available in order of the patient’s arrival, unless that
patient had asked to see a particular doctor. Patients could be seen first by
an aboriginal health worker. Every doctor was made aware it was important to read the summary sheet on the file containing the patients history and the

medication they were on. Dr Boffa gave the statistics as being 6,200
permanent residents who would attend Congress on average of more than
seven times each year and about 2,000 visitors who would each come on
average three times a year.

In addition, Congress had a range of specialists who would attend from time
to time to conduct a specialist clinic. This included a specialist physician.
When a patient was referred by a doctor to a specialist, a pink referral form
would be used and placed inside the patient’s file.
Terry Braun was an aboriginal health worker with Congress and had been so
employed for about six or seven years prior to 2 March 2000.
The specialist clinic was in a separate part of the building. On the day of
the specialist clinic, the medical receptionist would obtain all the files and
take them to the specialist clinic. Dr Janusic was in attendance at the

specialist clinic and responsible for following up whatever occurred at the
specialist clinic. Sometimes the specialist would fill in the pink form and a
copy would be put into the doctor’s pigeon hole. This did not always
happen. The original of the pink form would stay on the file. The file
would be put back into the storage system.

A non-attendance by a patient would be noted in the file by Dr Janusic and
she would decide the appropriate follow up plan. The referring doctor would not be told about a non-attendance because the follow up of that patient would be handled by the person co-ordinating the specialist clinic,
who, at the relevant time, was Dr Janusic.
I accept the evidence given by Dr Boffa that he could suggest an exercise
ECG be carried out but it was only the specialist at the Clinic who could

order this be done. Similarly, a general practitioner could not order an
angiogram, that would require a specialist.

The system, with respect to a fasting cholesterol test, was that it could be
done by either a doctor or aboriginal health worker. Persons who attended
for a fasting cholesterol test would be dealt with in order of their arrival.
A cardiac enzyme test would normally only be done in the emergency
department at the Alice Springs Hospital. Dr Boffa stated he would not

consider doing a cardiac enzyme test in a primary health care setting. He
would always send the person straight to hospital if he felt a cardiac enzyme
test was required. During Dr Boffa’s time in Alice Springs, there would
have been 20 to 30 occasions when he had sent a patient directly to hospital
with a suspected heart attack.
[64] The Congress Clinic’s “Policies and Procedure Manual” was tendered
Exhibit D22. This manual was put together early in 2001. Dr Boffa referred
to it being a work in progress.

Dr Boffa was referred to the Congress file on the deceased (Exhibit P13). It

was agreed between the parties that it was unlikely to be in the original
order because of the number of people who have since 2 March 2000,
referred to that file.

The medical notes made by Dr Boffa on 2 March 2000 in the Congress file
(Exhibit P13) are also contained in Exhibit D23 and read as follows:

“Story: smokes half a packet per day
No alcohol
No lunch today
Stressed +++ about kids, hard work
Pain gone now
Retrosternal discomfort, not pain
No radiation
No sweating, vomiting, nausea
Felt shortness of breath with pain
ECG – December 31 – normal
Observations: looks well
Afebrile
Blood pressure 110/70
Heart rate 76
Throat tick (normal)
S1-S2 nil added (normal heart sounds – no
murmurs)
Lungs clear
Assessment: Episodic chest pain
Not related to exercise
Plan: fasting cholesterol
Monday tick appointment
Cease smoking
Discussed risk factors for ischaemic heart
disease
Refer specialist clinic as wants further
opinion.”

The cause of death on 26 January 2001 was, as found by Dr Michael
Anthony Zillman, coronary atherosclerosis, which resulted in coronary
thrombosis and failure of the heart as a pump. Dr Zillman was of the

opinion that the narrowing of the left anterior descending artery would not
have changed much in the 11 month period since 2 March 2000 (tp 139).
Dr Zillman gave evidence that in his opinion it was “more likely than not
that there have been previous closing episodes on this narrowed coronary

artery”. This is supported by the evidence of Dr John Sangster in his report
dated 22 November 2005 (Exhibit D31).

The evidence is that on 2 March 2000 aboriginal health worker, Terry
Braun, first saw the deceased. He took a history from the deceased which he

noted down and this comprises the first entry for 2 March 2000 in
Exhibit P13. Mr Braun made the following note:
“(s) pain in and crushing sensation on (L) of chest, finding hard to
breath
(o) BP 110/70, T37.”

Under cross examination by Mr Abbott, counsel for the second defendant,
Mr Braun stated he knew the term ischaemic heart disease. He knew that if

a person came in complaining of chest pain this could be serious and he
would have to get a doctor quickly. He gave evidence he had been told to
look for symptoms such as breathing discomfort and pain and that someone
having a heart attack could complain of crushing pain in their chest. It is
Mr Braun’s evidence that he had no memory of the consultation with the
deceased on 2 March 2000. Mr Braun gave evidence he usually

communicated with patients in English. I find on the evidence that the
deceased spoke and understood English well.

I do not accept that the deceased used the words “pain in and crushing

sensation on (L) of chest” when he spoke with aboriginal health worker
Terry Braun. The reason I have come to this conclusion is because I accept
the evidence of Dr Boffa that he did not accept the history of the health
worker. I accept the evidence given by Dr Boffa that on 2 March 2000, he was first approached by health worker Terry Braun saying he had a patient in his room who had crushing chest pain and was finding it hard to breathe.
Dr Boffa walked quickly to this room because, on this history, he thought
the patient may be having a heart attack.

Once in this room, Dr Boffa realised there was a mismatch between the story

as related by the health worker and how the patient appeared. He sat down
and took his own history. Terry Braun was present at this time. Dr Boffa
gave this evidence (tp 247-248):
“And could you tell the court what ensured?---Well I am very careful in taking – because the history is the most important thing, I am very careful in not asking leading questions, so I asked the patient an open ended question, such as, ‘Can you tell me what’s brought you to see
us today?’ And let him talk. And in that he started to describe …. but we were having ….. difficulty working out how to describe this sensation he had in his chest. But he was very clear when directly asked, ‘Would you describe it as crushing?’ He said, ‘No’. Straight out in front of Terry. ….”
how he felt and his symptoms and when it got to his own description
of his chest discomfort, he didn’t use the word pain, he said …. he
was short of breath and he said he had this funny feeling in his chest.
So, I set about as carefully as I could trying to find a word that
would fit best with how he felt, and at the end of that process the
word we agreed probably best described it was the word discomfort.

I accept the evidence of Dr Boffa that he was well aware of the importance

of the sort of pain the patient was experiencing and the necessity to obtain
an accurate history.

I accept his evidence that in his notes he underlined the word discomfort to

show that the correct description given by the patient was discomfort, not
“crushing pain” and not even “pain”.

I accept Dr Boffa’s own interpretation of his note that he is stating the

retrosternal discomfort, which is often referred to as pain by health
professionals, had gone by the time he saw the deceased. I do not consider
this to be inconsistent with the evidence Dr Boffa gave at the inquest. I
accept his evidence at trial that he understood when questioned at the
inquest that he was just being asked to confirm the file note and that there
was nothing for him to correct because he was not, at the time of the
inquest, asked anything further (tp 413). It is Dr Boffa’s evidence that when
he interviewed the deceased, on 2 March 2000, the patient was telling him
about a pain that he had had but that the pain had since gone. I accept the
evidence given by Dr Boffa (tp 403) that as a result of his consultation with
the deceased, he was certain the deceased had not used the words “crushing
pain” and that the deceased had not had that symptom. I accept the evidence
given by Dr Boffa (tp 403):
“… I’m 100 percent certain that as a result of my consultation I was completely certain that he never had crushing pain and he never used that term. Whatever questions I’d asked and whatever conversation
happened, I’m 100 percent certain that I was completely certain that he did not use the term and had never had crushing pain, otherwise I would have done things differently.”

I reject the submission made by Mr Barr QC on behalf of the plaintiff that in giving this evidence Dr Boffa was reconstructing what had occurred to protect himself. Dr Boffa gave evidence that if the deceased had used the

words “crushing chest pain” then he would have done things very
differently.

I accept the evidence of Dr Boffa (tp 393) that after taking the history from
the patient and discussing what he had, Dr Boffa had asked him in front of
the health worker “Would you describe the pain as crushing?” and Clive
Impu had said “No”. It would have been clearer if Dr Boffa had noted,
“patient denies above presentation of pain with crushing sensation” but I
accept this was inferred when he wrote “retrosternal discomfort not pain”.
I accept the evidence of Dr Boffa that the reason for his subsequent referrals
was because he suspected the chest pain was ischaemic in origin.
It is conceded on behalf of the plaintiff that on all the evidence the
deceased’s symptoms on 2 March 2000 were probably ischaemic in origin.
It is further conceded that if the symptoms were caused by a clot, it was
probably a clot caught in the stenosed section of the lower anterior
descending artery.
The evidence of the expert witness, Dr Sangster, was that for Dr Boffa to
form a view that it was reasonable the deceased was suffering a recurrence

of a panic attack lends support to the evidence of Dr Boffa that the deceased
did not have the symptoms of a heart attack as described by the aboriginal
health worker on 2 March 2000.

I accept the evidence of Dr Boffa that in making his notes on 2 March 2000
he used the word pain and discomfort interchangeably.
I also accept his evidence that as at 2 March 2000 he linked the symptoms

with the record of symptoms that were noted at the deceased’s presentation
on 31 December 1999 some eight weeks previously. These notes
specifically record no chest pain. In the notes dated 31 December 1999
there is a reference to pins and needles in both hands and fingers. There
was a reference to “stress +++” in the family and that the deceased had been
“advised strongly to seek medical help if chest pain + further problem”.
Dr Boffa stated it was not clear to him why an ECG had been ordered on the
previous occasion. He gave evidence the history recorded on 31 December
1999 was a common presentation for someone who is severely stressed and
having an episode of panic with over breathing. Dr Boffa gave evidence
that, after a few minutes of over-breathing you start getting pins and needles
in your hands and feet. Dr Boffa stated that, in itself, this would not lead to
an ECG being ordered. It is for this reason that Dr Boffa asked the deceased
to tell him a bit about his presentation two months earlier as it was
Dr Boffa’s opinion, as at 2 March 2000, that the deceased was presenting
with the same problem as he experienced on 31 December 1999. The result
of the ECG indicated the patient was sent to the hospital and returned with
the results which were NAD “no abnormalities detected”. Dr Boffa gave the
following evidence (tp 249):

“… And so my impression was primarily what we were dealing with here was someone who was very stressed, who had emotional upsets happening, who was getting episodes of panic and over breathing.
But I was thinking maybe in the heat of those episodes he is getting fixed ischemic chest pain which is a form of chronic stable angina, which is not acute coronary syndrome. And so that’s what I was
thinking. Here’s this man, he’s young, getting episodes of severe
distress and stress with over breathing at the same time, getting
ischemic chest pain, which put him in the category of someone with
stable angina because it had been there for several months, at least
two months but probably longer. And unstable angina is angina that
occurs within four to six weeks, six weeks maximum. So I was
wondering whether we had a situation of someone who had
potentially or possible stable angina, not in any way someone who’s
having a heart attack.”

Dr Boffa gave further evidence that his postulated diagnosis was that the
deceased was in a high stress situation, that this stress was coming from his

relationship, his children and his work situation and that he was having a
panic attack. It is normal with a person experiencing a panic attack to have
chest discomfort which is a muscular tension.

I am satisfied that Dr Boffa was very thorough in his interview with the
deceased on 2 March 2000 in carefully analysing the previous presentation

on 31 December 1999. Dr Boffa did consider doing another ECG but
decided against this as without pain the chances of an ECG showing signs of
ischemia were negligible. Dr Boffa also thought it important to be careful

what tests he ordered so as not to lose credibility. In his experience young
aboriginal men were not good at coming back for appointments and he
wanted to pick a test that would give maximum results.

Dr Boffa stated he wanted to find out the cholesterol reading because that

was a risk factor of ischaemic heart disease. He gave the deceased an
appointment card to come in to Congress on the following Monday for a
fasting cholesterol blood test. Dr Boffa stated he could not be sure but he
thought the deceased’s wife was with him the whole time. There is no
evidence from Rosario Young that she did attend on this appointment.

I accept the evidence of Dr Boffa that he spent a considerable time talking
to the deceased about the risk factors of ischaemic heart disease which
included telling the deceased to stop smoking because this was a risk factor.
The deceased’s blood sugar level was normal so there was no requirement
for a fasting sugar test. The deceased did not have diabetes, his cholesterol

was not known but he did smoke. These are the four main risk factors of
ischaemic heart disease. I accept the evidence of Dr Boffa that in his
discussion with the deceased the deceased was aware of the problems with

smoking. I accept that Dr Boffa also explained to the deceased the purpose
of an exercise test and advised him he would have to refer him to a
specialist to get that done. I accept the evidence of Dr Boffa (tp 257) that
he explained to the deceased what ischaemic heart disease was, being an
obstruction of the blood vessels in the heart which causes narrowing and can damage the heart muscle. I accept Dr Boffa told the deceased that ischaemic
heart disease was a serious problem, although Dr Boffa thought it a small
possibility, and that it was essential to do the tests to rule it out. I am

satisfied Dr Boffa did explain to the deceased he would have to fast after
dinner on Sunday night for the cholesterol test first thing on Monday.
Dr Boffa then completed a pink referral form (Exhibit P13A). He then gave
the deceased a yellow appointment card with Monday’s date on it, this being
the date of the appointment for the fasting cholesterol test. Dr Boffa had

made a telephone call and asked for the deceased’s name to be put into the
appointment book for the next specialist clinic. I accept Dr Boffa’s
evidence that he then gave the deceased another yellow card with the date of
the specialist clinic and the reason for the appointment was “query heart
trouble”. Dr Boffa could not remember if he filled out the pink form
(Exhibit P13A) in the presence of the deceased but said he would normally
do it just after the patient left. I accept the evidence of Dr Boffa that in

completing this pink form he was letting the specialist know that he could
not be certain it was ischaemic heart disease but he thought it could be.
Dr Boffa also suggested on the pink form that the patient should probably
have an exercise ECG. He also drew to the attention of the specialist that he
had made notes concerning chest pain.

I accept the evidence of Dr Boffa that he put this pink form at the front of
the file. This is the prompt indicating what needs to be done.
Dr Boffa believed the deceased would attend both his appointments for the

cholesterol test and the specialist clinic for the exercise test, particularly as
it was the deceased who said he wanted a specialist opinion and seemed
keen to follow it through. I accept that two weeks was a reasonable waiting
time for the attendance at the Clinic. This time delay did not put the
deceased at risk.

[89] The deceased left the surgery.

It is not in dispute that the deceased failed to attend for the fasting

cholesterol test the following Monday and also failed to attend the Clinic for
the specialist appointment on 21 March 2000. There is no evidence as to
why he failed to attend these appointments.
Medical history of the deceased 2 March 2000 – 26 January 2001

The Progress Notes for the deceased (Exhibit P13), maintained by the first
defendant, show that the deceased next attended Congress on 23 April 2000
for boils and was treated for this condition. On 28 May 2000 he again

attended Congress complaining of boils and that he had lost his medication.
He was treated for this condition. On 29 December 2000 he attended
Congress and was treated for a dog bite.

There is no indication that on any of these occasions the deceased raised the

matters addressed by Dr Boffa at his attendance on 2 March 2000. There is
no evidence he attended upon Dr Boffa after 2 March 2000.

I infer from the notes of his attendance on the three occasions mentioned

above, that the doctors or health workers who attended him on those dates
did not refer back to the notes made by Dr Boffa on 2 March 2000. None of
the notes make any reference to the attendance of the deceased on 2 March
2000 or that any query was directed to the deceased as to what had occurred
following his referral for the fasting cholesterol test or his referral to the
Physician’s Clinic. There is also a brief note made in the Progress Notes on
2 January 2001 which does not take the matter any further.

The deceased attended Congress on 26 January 2001. He was attended to by
Dr Morrison who made the following note:
“26/1/01
12.30pm (Clinic closing time 12.30pm) clinic to give her husband some anti-inflammatory tablets for an injury that he had. I said that would be OK.
Call put through to me by receptionist Tracey.
1pm Clinic staff go home except for myself.
Staff that left were receptionist Tracey, Aboriginal Health Worker,
Alicia , driver, Sid and Dr Tania Janusic.
1pm I briefly spoke to Clive Impu and his wife.
Patient said that he had an intermittent pain in his right axilla that
had first occurred about September 2000 at the end of the football
season in which sport he was a player. The patient had been waiting
in the waiting room for about twenty minutes by this time and did not
seem to be in any distress. He was only requesting repeat of the
medication that he had been given at the Alice Springs Hospital. I
did not examine the patient as he only requested repeat medication. I
suggested that patient might be helped by a chiropractor and he said
he knew of one in Larapinta Drive, Alice Springs. The patient could
not remember the brand of anti-inflammatory tablets that he was
taking so I gave him a packet of Celebrex capsules from the clinic
pharmacy.
I did not think that the patient had any pain in the clinic. I do not recall him saying he did.
N.B. I did not have access to any past notes relating to the patient as only receptionists access the files at Congress. They are stored under a code number for security purposes. I did not realize that I did not
have the patient’s file until after the receptionist had gone home. 1.45pm I was still doing paper work in the clinic and received a phone call from St John Ambulance saying that the patient had
collapsed on his way home from Congress clinic and that he had been
taken to hospital by ambulance.
1.50pm Phone call from a nurse at hospital asking, what tablets had
been given to the patient. I said Celebrex only.
2.00pm Phone call from a police officer informing me that patient had died and would I be able to write a death certificate. I said no, as I did not know that patient had any serious illness.
I then went straight to the Emergency Dept. of Alice Springs officers and then I personally checked the vital signs of the patient and noted absent carotid pulses and fixed dilated pupils. I then gave my condolences to patient’s wife who was sitting in a car outside the Emergency Dept. of ASH.
NB. I checked the patient’s box of Celebrex was still full – none missing.”
Following his attendance at Congress on 2 March 2000, there is evidence the
deceased also attended the Alice Springs Hospital. The evidence contained
on the Alice Springs Hospital file (Exhibit D3) is that the deceased attended on a number of dates after his consultation with Dr Boffa on 2 March 2000.
On 15 August 2000 he was attended to at the Alice Springs Hospital by
Dr Anthony Seshakumaran Dharmaretnan “with a history of right sided chest
pain on and off for the past few days playing football. He thinks it could be
due to an un-noticed injury during play. There is not prior history [of]

similar nature.” Dr Dharmaretnan then noted lack of any respiratory
problems and observed the pain was of “muscular skeletal origin”. The
diagnosis on discharge was “muscular pain”.

On 3 December 2000 the deceased again attended Alice Springs Hospital.
He was examined by Dr Barbara Allen. The doctor detailed her

observations. The deceased complained of pain to his right axilla after
“throwing rocks at ducks”. The diagnosis was “musculoskeletal problem
(R) axilla”.

On 30 December 2000 the deceased again presented to the Emergency
Department Alice Springs Hospital. The doctor attending him noted “says
hurt muscles in (R) arm + (R) side chest after throwing rocks today into a
pool!” It was noted he had “no central chest pain nil pain at present”. The
doctor on that occasion recorded other results of the examination and
concluded with the diagnosis “musculoskeletal”.
On 2 January 2001 the deceased presented to Alice Springs Hospital
Emergency Department “with symptoms of generalised body aches; mild
throat soreness, congested eyes and tiredness since this morning”.
Dr A. Daftary made detailed notes of his observations and examination. The
diagnosis was that the deceased had the flu.

[100] On 26 January 2001 the deceased was brought into the Emergency
Department of Alice Springs Hospital by ambulance. It is noted the CPR

started at 1320 hours followed by other resuscitation attempts. He was
pronounced dead on arrival at Alice Springs Hospital at 1355 on 26 January
2001.
[101] Under the heading “Relevant History, Investigations, Findings and
Unresolved Problems”, appears the word “Nil”.
Expert Medical Evidence
Dr Michael Anthony Zillman
[102] Dr Michael Anthony Zillman is a specialist forensic pathologist. He carried

out an autopsy on the body of Clive Impu on 30 January 2001. The autopsy
report is Exhibit P8. A coloured diagram of the heart is Exhibit P9 and a
black and white drawing of a heart provided by Dr Zillman is Exhibit P10.

[103] In his report, Dr Zillman gives the cause of death as follows:

“1(a) Coronary Thrombosis.
1(b) Coronary Atherosclerosis.”

He makes the following comments:

“1. The cause of death was coronary atherosclerosis (ie. fatty
narrowing of the coronary arteries which supply blood to the
heart), which resulted in coronary thrombosis (ie. the formation
of a blood clot in a coronary artery) and consequent damage to
heart muscle, with failure of the heart as a pump.
2. The presence of scarring of the heart muscle (ie. myocardial fibrosis) is consistent with the effect of long-standing coronary artery disease.”

[104] Dr Zillman stated in his results of investigation that there was extensive

myocardial fibrosis and the evidence of narrowing to the deceased’s left
anterior descending coronary artery (LAD). It is Dr Zillman’s opinion that
the myocardial fibrosis suggests that this is a process that has been going on
for several months to years. There was evidence of myocardial fibrosis on
the cross section of the heart muscle. It is Dr Zillman’s opinion that it is
more likely than not there were previous clotting episodes on the deceased’s narrowed coronary artery. Under cross examination by counsel for the first defendant Ms Gearin, Dr Zillman agreed in the case of Clive Impu Jnr the

clot was formed by turbulent blood flow. Dr Zillman was taken through the
various attendances by the deceased at the Alice Springs Hospital
subsequent to his presentation to Congress on 2 March 2000. It is
Dr Zillman’s opinion that given the history of these subsequent attendances,
the narrowing of the artery is likely to have been there for more than 12

months or so. It is his belief that the narrowing was present in March 2000
and during the course of those months to 26 January 2001 would have
changed very little. The fact there was intermittent chest pain meant it was
more likely than not that the blood clot was forming at the point of
narrowing and remaining there long enough for symptoms to be produced.
Dr Zillman stated that if the deceased had been diagnosed as having a
narrow coronary artery in August 2000, or on any date before his death, then
appropriate treatment could have been instituted and it is more likely than
not he would have survived. The reference to “marked fatty change. Focal
lobular inflammation” in the autopsy report means that within the last few
days prior to his death, the deceased had consumed an excessive amount of
alcohol.
[105] Under cross examination by counsel for the second defendant Mr Abbott,
Dr Zillman agreed there can be ischaemia of the heart without symptoms.
He agreed there was no evidence in the heart of a previous infarct.
Dr Zillman agreed that the scarring he saw is likely to have occurred over a
period of time and it would be impossible to say that one particular event

caused that scarring. Dr Zillman gave evidence that retrosternal discomfort
is a much vaguer symptom than crushing chest pain and could not be
attributed to myocardial ischemia. He stated that “crushing chest pain” suggests a more severe myocardial ischemia. Dr Zillman expressed the opinion that the deceased had been forming multiple clots of varying size

over a long period of time. He agreed there is an association between
smoking and the onset of ischemic heart disease.
[106] Under re-examination by Mr Barr QC, counsel for the plaintiff, Dr Zillman
gave evidence that the reference to pins and needles when the deceased
presented to Congress in December 1999, would not suggest to him that the
“origin was a cause in the heart”. He gave evidence that a crushing chest
pain is a significant indicator of myocardial ischemia (tp 148). It is the

opinion of Dr Zillman that the comments of doctors who saw Mr Impu at the
various times he attended Alice Springs Hospital after his presentation to
Congress on 2 March 2000, do not of themselves indicate myocardial
ischaemia.
Dr George Stuart Hale
[107] Dr George Stuart Hale is a specialist cardiologist (tp 291) who is currently

a consultant cardiologist at St Vincent Hospital in Melbourne. Reports from
Dr Hale are Exhibit P27 and Exhibit P29.
[108] Dr Hale gave evidence that the reference in the Congress notes of 2 March
2000 to “crushing sensation on (L) side of chest, finding hard to breathe”

and “retrosternal discomfort”, meant that the severity of pain would raise a
strong suspicion of a coronary basis for the pain. He stated that in all
probability the deceased suffered acute transient obstructions through
thrombosis which meant the pain did resolve by the time he was being
questioned. This would suggest the obstruction had also been resolved.
Dr Hale described what happens to the thrombosis to cause the obstruction
to cease. He agreed, after having seen the autopsy report, that it was
possible that, after the thrombosis has dissolved, it had spread more
diffusely through the coronary arteries. It is Dr Hale’s evidence that if a
patient presents with any sort of central chest pain it is mandatory to obtain

an ECG and a cardiac enzymes test. He stated this was also mandatory in
March 2000 and that these tests should have been done as soon as possible
after that date.
[109] Having reviewed the notes of the deceased’s presentation to the Alice
Springs Hospital subsequent to his presentation to Congress on 2 March

2000, it is Dr Hale’s evidence that these subsequent presentations did not
paint a picture of ischemic type pain. He queried why there was no
communication between Congress and the Alice Springs Hospital to correct
the impression that there was no previous history of a similar nature. He
stated there was no negligent medical practice by the doctors at the Alice
Springs Hospital from August 2000 onward because, if the symptoms are not
typical it is very difficult to be sure that the patient has an ischemic
condition.
[110] Dr Hale was then asked to give an opinion as to the life expectancy of the
deceased assuming he had received the appropriate diagnostic treatment in

mid 2000. It is his opinion this would be in the order of 10 to 12 years and
if the deceased stopped smoking, the outer limit would probably be 15 years.
[111] Dr Hale was cross examined by Ms Gearin for the first defendant (tp 301).
He stated if the deceased had continued smoking this would have reduced
his estimates of life expectancy by 20 percent. Dr Hale gave evidence he
had not been aware of the deceased’s failure to tell anyone at Alice Springs
Hospital what Dr Boffa had told him, or that he had failed to attend at the

specialist clinic or for the fasting cholesterol test. Dr Hale agreed that given
appropriate investigation and treatment in August 2000 when the deceased
attended Alice Springs Hospital there would have been a good outcome for
the deceased. Dr Hale was provided with certain transcript pages of the
evidence given by Dr Boffa. This was the evidence of Dr Boffa as to what
he said and did when Clive Impu presented to Congress on 2 March 2000.
Dr Hale maintained that if the deceased’s presentations at Alice Springs
Hospital were treated as separate and isolated events then there were
difficulties in making a diagnosis of myocardial ischaemia in August and
December. Dr Hale agreed that if Clive Impu had told the people at
Accident and Emergency at Alice Springs Hospital what Dr Boffa had told
him in March 2000, it is highly probable he would not have died on
26 January 2001. He stated he still had reservations about whether the

history was appropriately taken at all times. Dr Hale was also cross

examined by Mr Abbott, counsel for the second defendant (tp 315). Dr Hale
agreed that he considered the conduct by Dr Boffa, in referring Clive Impu
to a cardiac specialist following a consultation with him on 2 March 2000,
was entirely proper. It is his evidence that at the time the deceased
presented to Dr Boffa on 2 March 2000, there was sufficient indication to
obtain an ECG and cardiac enzymes test as well as the specialist advice.
Dr Hale agreed that the only reason for sending Clive Impu for an ECG on
31 December 1999 was because the doctor on that date had some suspicion
the heart might have been involved. He stated he found it difficult to
understand why an ECG was not done in March 2000 when it had been done previously. He agreed after cross examination about the dates that the ECG
on 31 December showing normal and the presentation on 2 March 2000 was more recent than he had previously thought. Ultimately Dr Hale agreed that he could not criticise Dr Boffa’s decision on 2 March 2000 to refer the
deceased to a specialist with a suggestion that the specialist order an

exercise ECG. He agreed that if the deceased did not suffer crushing chest
pain in addition to retrosternal discomfort and that he suffered or
complained of retrosternal discomfort and not pain, then the symptoms were
not severe in the way he had assumed and that they would be equivalent to
the August and December episodes. Dr Hale agreed it was proper for
Dr Boffa to refer Clive Impu to a specialist for the purpose of excluding
ischaemic heart disease. It is Dr Hale’s evidence he would have preferred a

referral for an ECG and cardiac enzymes test. He agreed that the exercise
ECG test could be normal. It would depend on the level of narrowing in the
coronary artery apart from the thrombus.
[112] Under cross examination by Ms Kelly for the third party, Dr Hale gave

evidence concerning the importance of a good diet and avoiding foods with
a high fat or sugar content. He agreed a good diet and not smoking were
important to avoid ischaemic heart disease.
[113] In re-examination Dr Hale stated that in the presence of scarring there would
be some abnormality on the ECG with the stress of exercise.
Dr John Sangster
[114] Dr John Sangster gave evidence he is a cardiologist and has practised as a

cardiologist in the Northern Territory and other parts of Australia. His
report with an accompanying letter from Morgan Buckley to Dr Sangster
dated 4 July 2005 is Exhibit D30. Further letters, reports and a curriculum
vitae for Dr Sangster were tendered Exhibits D31 to D34 inclusive.
[115] In his report dated 22 November 2005, Dr Sangster had provided answers to
a number of questions raised by lawyers for Dr Boffa.
[116] In his evidence to the court he stated that assuming the history that Dr Boffa
took, there was no reason for Dr Boffa to order a normal ECG. This is
because there could have been many causes for the patient’s discomfort.
The patient was not recorded as experiencing radiation, sweating, vomiting

or nausea and he felt a little short of breath with the pain. Dr Sangster
further stated that ordering a blood sample for the testing of enzymes was
unlikely to be helpful in that situation unless the pain had been sustained for
at least half an hour and probably longer. When asked about the symptoms
outlined in the case note of the consultation on 31 December 1999,
Dr Sangster stated these were consistent with hyperventilation, being
anxious and stressed. They were not symptoms of cardiac problems. He
stated that if Dr Boffa formed the view on 2 March 2000 that the symptoms
the patient was presenting with on that day were a recurrence of a panic
attack which he seemed to have suffered on 31 December 1999, then that
was a reasonable conclusion to draw.
[117] This evidence was based on an assumption that Dr Boffa having seen an

entry made by the Aboriginal Health Worker about crushing pain or
sensation in his chest, took a fresh history from the patient and ascertained
that it was retrosternal discomfort and not “crushing pain”. It is
Dr Sangster’s evidence that this, together with the similar history taken on

31 December 1999 that the deceased had felt a similar discomfort in his
chest when he had done the ECG test on 31 December 1999, meant it was
reasonable for Dr Boffa to conclude that the 2 March presentation was
probably a panic attack or some sort of stress induced symptom.
[118] I have already found that I accept the evidence of Dr Boffa that on 2 March
2000 he had seen the entry from the Aboriginal Health Worker but on

making his own further enquiry ascertained the patient had not used the
phrase “crushing pain” and that he had never had “crushing pain” but rather
had felt retrosternal discomfort.
[119] It is Dr Sangster’s evidence (tp 343), that he is of the opinion Dr Boffa took
the proper action in referring the deceased for a fasting cholesterol test and
suggesting to the specialist who attended the Physicians Clinic to consider ordering an exercise ECG on 21 March 2000. It is Dr Sangster’s evidence that Dr Boffa was being extremely cautious to make sure there was not a
problem. Dr Sangster stated that on the history provided in the notes he

would be very surprised if the deceased had suffered a heart attack on
2 March 2000.
[120] Dr Sangster stated that there was a very low chance that a resting ECG

would have shown a positive result or show an abnormality given that the
deceased had undertaken a resting ECG just over two months earlier which
had shown normal. It is Dr Sangster’s opinion that to receive any useful
information for or against the presence of heart disease, then Dr Boffa
would have needed to do something more than a resting ECG. It is also Dr Sangster’s opinion that ordering a cardiac enzyme test would have an

almost zero chance of coming back with a positive result and it would
require at least an hour of infarction to produce any rise. Dr Sangster gave
detailed reasons as to why it would not have been appropriate to have
ordered an angiogram with respect to the deceased. Dr Sangster agreed that
the life expectancy of the deceased would be significantly shorter than a
man with normal coronary arteries as he had developed coronary artery
disease at a young age. It is Dr Sangster’s evidence that he would be
surprised if any of the myocardial fibrosis evident on post mortem was due
to the event on 2 March 2000. Dr Sangster agreed that, from his own
experience in the Northern Territory dealing with young aboriginal men, it
was important to select a test that would give the most information when
trying to exclude a problem. This was why Dr Boffa would have suggested
an exercise ECG and not another resting ECG.
[121] Under cross examination by Ms Gearin, counsel for the first defendant,
Dr Sangster agreed that when the deceased consulted Dr Dayaratne at the
Alice Springs Hospital on 15 August 2000, it would have been very helpful
for Dr Dayaratne to have known about the consultation with Dr Boffa some

months earlier. Similarly, it would have been helpful if, when attending
Dr Barbara Allen on 3 December 2000, the deceased had advised her that he
had not attended for the fasting cholesterol test some months earlier and had
not attended to have the exercise ECG test. It is Dr Sangster’s evidence that the symptoms described in the notes when the deceased attended at the Alice Springs Hospital on 30 December 2000 and again on 2 January 2001, were
not in any way typical of heart disease.
[122] Under cross examination by Ms Kelly, counsel for the third party,
Dr Sangster agreed that a diet consisting of food with a high content of

saturated fats, fried food and fast food would be a risk factor in heart
disease as would a high blood sugar level. He stated he would have ordered
a fasting blood sugar test at the same time as a cholesterol test.
[123] When cross examined by Mr Barr, counsel for the plaintiff (tp 357),
Dr Sangster gave evidence that even if the deceased had given up smoking,

adopted a healthier diet and been placed on an appropriate medication
regime, he thought it quite likely the deceased would have died well before
the age of 55 years.
Dr Sam Heard
[124] Dr Sam Heard is Chair of the Board of the Northern Territory General
Practice Education, Australia. He is a general practitioner who has worked

as an academic and teacher as well as clinically in the Northern Territory
since 1993. Dr Heard prepared a report on the death of Clive Impu for the
Coroner in 2001. A copy of this report, Dr Heard’s curriculum vitae and
various other documents were tendered (Exhibit D41). A great deal of the
report prepared by Dr Heard dated, 6 May 2001, deals with the actions of
Dr Morrison and are not relevant to the matters I am required to consider.
In reviewing the actions of Dr Boffa on 2 March 2000, Dr Heard concluded that in his opinion, Dr Boffa’s treatment of the deceased was entirely
appropriate.
[125] Under cross examination by Ms Kelly for the third party, Dr Heard stated he

considered it appropriate to have a medical practitioner reviewing the files
for attendees at a specialist clinic because of the judgment involved in
deciding what form of follow up action to take. It is Dr Heard’s opinion
that he would expect in the situation where the medical practitioner in

charge of the specialist clinic received a file with a referral to a specialist
and that patient had not attended for some months and then only for
treatment for physical wounds, then the medical practitioner in charge of the
Clinic would make some further inquiries as to why that person had been

referred to a specialist clinic. Dr Heard stated he would expect the person
administering the Clinic to make enquiries about the referral information
and point out the possibility of error.
Findings with respect to the Expert Medical Evidence
[126] I accept all of the evidence given by Dr Zillman. In particular I accept his

opinion as to the cause of death. I accept his evidence that the narrowing of
the artery he found on post mortem was also present on 2 March 2000.
[127] I accept the evidence given by Dr Sangster that the action taken by Dr Boffa

on 2 March 2000 was appropriate and reasonable. Dr Sangster’s opinion is
supported by the evidence of Dr Heard. I accept the evidence of Dr Sangster
that there would have been no point in ordering a further resting ECG or a
cardiac enzyme test. The deceased had been given a resting ECG on
30 December 1999 which showed normal. Dr Hale did not appear to be
aware, until it was put to him in cross examination, that in fact it was only a
little over two months prior to 2 March 2000 that the deceased had
undertaken a resting ECG which showed normal. I accept the evidence of
Dr Sangster that a cardiac enzyme test would not have provided the
necessary information and was pointless at that time.
[128] Dr Hale based his opinion on a factual assumption that the deceased had

attended Congress on 2 March 2000 with “crushing chest pain”. This was an
understandable assumption from the note of the health worker Terry Braun
in the clinical notes for 2 March 2000. However, the evidence of Dr Boffa,
which I have accepted, is that the deceased did not have “crushing chest
pain” when he attended Congress on 2 March 2000, that it was not the
deceased who used that term and that the deceased had never had “crushing

chest pain”. Accordingly, the opinion formed by Dr Hale was formed on a
factual basis that is not supported on the factual findings.
[129] Dr Hale appeared reluctant to accept that the history he had proceeded upon

was not the complete history. In his cross examination by Mr Abbott,
counsel for the second defendant, Dr Hale appeared to be resisting a request
to reassess his opinion in light of a different factual basis to the one on
which he had based his written reports.
[130] There is no challenge to Dr Hale’s expertise. I accept he is a highly
qualified and experienced cardiologist. However, in this particular case, his

opinion with respect to the actions of Dr Boffa is rejected because it is not
based on the Court’s ultimate finding of fact.
[131] In accepting the evidence of Dr Sangster, I accept that Dr Boffa proceeded

appropriately in not seeking an angiogram as at 2 March 2000 and not
requesting other tests other than making an appointment for the deceased to
have a fasting cholesterol test on the following Monday and then an
appointment with a specialist at the Physician Clinic on 21 March 2000,
being the first Physician Clinic to be held after 2 March. The evidence of
Dr Heard is also in support of a finding that what Dr Boffa did on 2 March
2000 was reasonable and appropriate.
[132] I accept the evidence of Dr Sangster supporting the opinion of Dr Boffa, that
it is important when treating young aboriginal men to ensure any further
tests to be done are those that give the most important information. I accept
Dr Boffa has had a great deal of experience in treating young aboriginal men

and that his approach in these circumstances was reasonable. I accept the
evidence of Dr Boffa that had he considered there was any urgency, he
would have referred the deceased immediately to the Alice Springs Hospital.
Dr John Dominic Boffa
[133] The next involvement Dr Boffa had after 2 March 2000 was when he was

telephoned on Saturday 26 January 2001 to be advised that the deceased had
died. Dr Boffa stated the deceased’s file was extracted and the matter
followed up.
[134] It is Dr Boffa’s evidence that the system at Congress did not provide for him
to be made aware whether or not the deceased had attended for the

cholesterol test. Dr Boffa described the access arrangements at Congress
and gave evidence that because aboriginal people had such ready access to
Congress if they missed an appointment for a cholesterol test it would be
done the next time they came in. It is his evidence that with this particular
patient if he did not attend for the fasting cholesterol test that would have
been picked up when he attended the physicians clinic two weeks later. In

all probability, the clinic would have given him a non fasting cholesterol
test which would provide them with sufficient information.
[135] The clinic scheduled for 21 March 2000, had been cancelled. It became

obvious, during the course of the investigation into the death, that the wrong
file had been produced to the clinic on 21 March 2000. There was a note
made on that date in another file which bore the same name “Clive Henry
Impu”. The deceased himself did not attend the clinic.
[136] I accept the evidence of Dr Boffa that it was not his responsibility to get the
file out for the clinic. There is an appointment book which has the client’s
file number on it. That file had to be extracted by an administrative person

in the office and provided to the doctor in charge of the clinic on that
particular day, in this case, being 21 March 2000. On that date Dr Janusic
was in charge of the specialist clinic.
[137] The system in place at that time at Congress when a person failed to attend
the clinic, was to follow up the patient either by telephone or by facsimile

and notify the patient of the need to attend the next specialist clinic.
Dr Boffa earlier gave evidence the specialist clinics were held fortnightly.
[138] It is Dr Boffa’s evidence that, having referred the deceased to a specialist,
he would have subsequently received a letter from the specialist advising of
the result. I accept his evidence that there was nothing for him to follow up.
It was only the specialist who could order an exercise ECG and then, if

appropriate, an angiogram. Dr Boffa stated the doctor organising a
particular clinic would be responsible for following up a patient who had
failed to attend the clinic. This did not happen in this instance because the

wrong file had been produced at the clinic. That was not Dr Boffa’s
responsibility.
[139] I accept the evidence of Dr Boffa that it was not appropriate for him to order
another resting ECG test as the one ordered two months before had shown no abnormality. I accept it was more important for him to concentrate on more significant tests. I find that there was no negligence in failing to carry

out a blood test for cardiac enzymes on 2 March 2000 as Dr Boffa had
concluded the patient was not having a heart attack and such a test would be
irrelevant. The evidence of Dr Boffa on these matters is supported by the
evidence of Dr Sangster to which I have already referred.
[140] I accept the evidence of Dr Boffa that he would normally receive a letter
from the specialist as to the result of the patient’s attendance. However, he
had no responsibility for any follow up procedure because the procedure at
that time at Congress was to take any follow up action out of the hands of
the medical practitioners and have the doctor in charge of the clinic take the
appropriate follow up action.
[141] Dr Boffa was referred to the Congress Clinic Policy and Procedures Manual
(Exhibit D22 p48) which provides that stress ECG’s, also known as exercise
ECG’s, can only be booked by Alice Springs Hospital physicians. Page 49
paragraph 7.5 deals with the details required to be included in a referral.
Page 50 sets out the steps for making a referral. Paragraph 5 on page 50 sets
out the procedure when a patient fails to attend a clinic. This requires a staff member responsible for the specialist clinic to advise the referring practitioner the patient has not been seen. Dr Boffa gave evidence that this
procedure had only been adopted in recent months. It was not in place in
March 2000. At page 39 the Policies and Procedures Manual provides that it
is the responsibility of the Clinic Receptionist to get the patient files out of
the filing system and to put the files away. Dr Boffa agreed that if the

wrong file was produced then it meant the Clinic Receptionist had obtained
the wrong file and given it to the doctor in charge of the clinic who, on
21 March 2000, was Dr Janusic.
[142] Dr Boffa was referred to page 35 of Exhibit D22. The last paragraph under
the heading “Following up transport bookings” reads:
“Drivers are responsible for writing down the outcome for each
person whose name is recorded in the transport booking book.
Besides being ‘brought to the clinic’, possible outcomes can include
no-one home, at home but didn’t want to come in, wrong address etc.
If there is anyone at the house, the driver should try and find out
where the person is, for example if they are ‘up town’ or ‘gone bush’
– if so to where.
Any bookings marked with a * need follow up by Clinic staff if they
do not attend. The Clinic Coordinator and Medical Officer
Coordinator are responsible for arranging this follow up.”

[143] Dr Boffa gave evidence that the system at Congress was, that the

responsibility was on the Clinic Coordinator to follow up a non attendance
and it was not the responsibility of the referring practitioner. It was not
until after the death of Clive Impu on 26 January 2000 that Dr Boffa was
made aware the deceased had never attended the fasting cholesterol test or
the physicians clinic.
[144] Dr Boffa was asked to look at the Alice Springs Hospital file and the note of

attendances by the deceased at the hospital subsequent to 2 March 2000. He
gave evidence that had the deceased presented again to himself at Congress

family. He was, in all probability, less likely to commit a crime that would

result in a gaol sentence. He had valuable skills and experience that would
make him increasingly useful in the workforce. Either on the day, or the
day after his death, his wife was advised that the health problems with their
youngest child had resolved which would relieve the family of some of the

stresses related to the infant’s illness. It would also have opened up other
lifestyle options as the family would not have to be basing their lives around
the child’s need for constant medical care.
[270] The amount that is awarded to Rosario Young, who has had responsibility
for the support of the family for the majority of the time since the
deceased’s death, is summarised as follows:

Earning $ 200.00 per week

Dependency 63.1 percent

Weeks Since Death 340

Total $ 42,908

Plus Interest @ 5% over 7 years $ 15,017
------------
Sub Total $57,925
Plus 10 percent for positive contingency $ 5,792.5
_________
TOTAL $63,717.5
Future Loss Dependency
[271] I accept the probable earning capacity of the deceased would be $250 per

week. This is on the basis of his ability to earn additional income from time
to time over and above the CDEP. He had chosen to acquire further skills
whilst he had been in gaol. He had been a willing and co-operative prisoner.
He had a growing family to support. He had previously demonstrated a
capacity to retain a job at the Alice Springs Hospital as a liaison officer.
[272] The next factor to consider is the question of life expectancy. Dr Hale

estimated this to between 10-15 years. Dr Sangster gave a slightly more
favourable prediction. Mr Lindsay, on behalf of the plaintiff, was prepared
to rely on the estimates provided by Dr Hale. Counsel for the defendants
argued that the deceased’s lifestyle, nutrition, alcohol consumption and
smoking would have continued and reduced his life expectancy to the lower
end of the scale namely no more than 10 years. There is evidence that he
did drink alcohol. However, there is no evidence that he was a continual
heavy drinker. There is evidence he did smoke and had continued smoking.
I am satisfied that had he received treatment and with his background in the
health area he could have been persuaded to give up smoking. I rely on the
evidence of Dr Hale that it sometimes takes more than one warning to make
patients give up smoking and doctors will always keep trying to achieve
this. I would make a finding that he had a life expectancy of 12 years. I
accept the multiplier provided by Mr Lindsay of 286 and the dependency
percentage of 66.2 percent making total for future loss dependency of
$45,477. I accept the break up in percentages between the deceased’s wife
and three children as stated by Mr Lindsay in annexure 1 to his written
submissions. This is as follows:

[273] Earning Capacity 250

Life Expectancy 12 years
Multiplier 286
Age of Dependency 18
Dependency % 66.2 %
Rosario $ 16,370
Bruce $ 7,921
Norman $ 10,593
Raelene $ 10,593
----------
TOTAL $ 45,477

I would increase this by 20 percent for the positive contingencies which I
have already referred to

Rosario $ 19,644
Bruce $ 9,505.2
Norman $ 12,711.6
Raelene $ 12,711.6
-------------
TOTAL $54,472.4

In addition to those matters the deceased, as he matured, could be expected
to become more settled and benefit from increasing opportunities for
employment of aboriginal people.
[274] The mathematical calculations provided by Mr Lindsay are not in dispute

and I do not consider it necessary to set them out. They are detailed in the
various annexures to Mr Lindsay’s written submission dated 25 March 2008.
Past Household Services
[275] The next heading under quantum of damages is the “Past Household
Services” component. The evidence on this aspect is the evidence of
Rosario Young. Mrs Young gave evidence on this issue and has not been

challenged. I accept that the deceased would assist his wife by washing the
clothes, helping with the cooking, washing the dishes and mopping the floor.
Mrs Young stated her husband did these things while she looked after the
children. It is her evidence that he used to start early to do things and would
do these things on the weekend.
[276] I accept the probable estimate suggested by Mr Lindsay of 13 hours per

week at an hourly rate of $22 over the 340 weeks from the date of death to
the date of the trial in February 2008, again reducing the time by six months
to allow for time with respect to treatment. This is a figure of $97,240 with
interest at five percent per year over seven years amounting to $34,034
making a total for Past Household Services of $131,274.
Future Household Services
[277] I then move to consider Future Household Services. The proposal under the

heading Future Household Services (annexure “6”) prepared by Mr Lindsay
appears very reasonable. The type of services may change to some extent as
the children grow older but still involve a considerable amount of work.
The deceased had already demonstrated a willingness to share the household

chores and provide assistance to his wife. I accept the Future Household
Services would be 10 hours a week at $30 per hour with a multiplier of 286.
This is a told of $85,800.
[278] I would increase this by 10 percent for the positive contingencies including
the fact that as the children grew older, the deceased would have increased
his commitment particularly with respect to the work associated with the
two boys. There is evidence of Mrs Young that he would take them out bush

which involved organising food for them. He would take the boys to
football which would also involve some component of household work.
This brings the total for Future Household Services to $94,380.00.
Solatium and Consortium
[279] The final head of damages to consider is the solatium and consortium for
Mrs Young and the children.
[280] With respect to Mrs Young, I approach this on the basis of the plaintiff’s
perspective of her loss. There were clearly a number of stresses and strains

within their relationship. Mrs Young had to contend with a husband who
had gone to gaol for a substantial period of time. He did not always please
her with his behaviour. Nevertheless, their relationship held together
through a number of significant difficulties, including the initial rejection of the relationship by their respective families, the deceased’s period of time in
gaol, the effects on the family of the ill health of their baby daughter and the
deceased’s request to the plaintiff to take a second wife. Mrs Young gave
evidence as to the importance of the deceased in her life. They had three children. He assisted in the home and with the children. He provided her with protection and stopped people humbugging her. She loved him and
regarded him as her best friend. Mrs Young detailed the initial affect upon her of his death. The family of the deceased stripped everything from her
house and took the children out of her care for 12 months. Counsel for the
plaintiff and the first defendant are in agreement with the sum of $40,000
for solatium. I consider that to be reasonable and accordingly award
$40,000 to Mrs Young as solatium.
The Solatium and Loss of Care and Guidance in respect of the children
[281] There is evidence of a close relationship between the deceased and his two

sons. Mrs Young gave evidence he had taken them out bush, taken them
hunting and fishing and taken them to football matches. During the period
of approximately nine months that Mrs Young had to take the baby Raelene
to Alice Springs Hospital, the deceased was the primary carer for the two
boys. I accept the evidence of Mrs Young that both boys were upset and
grieved the loss of their father. Their father will not be there at the
important time of their initiation ceremonies or to provide love and guidance
through their lives. I consider this is a loss which cannot be adequately
replaced by grandparents or other relatives. With respect to Raelene Impu,
it is the submission made by Ms Gearin on behalf of the first defendant that
Raelene’s claim is limited because of her gender and the fact she has no
memory of her father. I do not consider the award to her should be reduced
on this basis. Her gender does not mean the loss of a father is any greater or
lesser than for her two brothers. Her father had stayed within the family
unit during the difficult months of Raelene’s illness. She has lost a person
whom she could have expected to look to for love and guidance for many
years. The fact that she may have no memory of her father is, in itself, a

source for sadness. I see no reason to distinguish between any of the three children. I would award them each $30,000 for solatium and for the loss of care and guidance.
Summary Quantum of Damages

Past Loss of Dependency $ 42,908

Plus Interest 7 years @ 5% 15,017
------------
$ 57,925

Plus 10% for Positive Contingencies 5,792.5
--------------

$ 63,717.5

Future Loss Dependency $ 45,477

Plus 20% 9,095.4
--------------

$ 54,572.4

Past Household Services $ 97,240

Interest 7 years @ 5% 34,034
-------------

$ 131,274

Future Household Services $ 85,800
Plus 10% for Positive Contingencies 8,580

------------ $ 94,380

Solatium re Ms Young $ 40,000
Loss of Care and Guidance
at $30,000 for each of the

three children 90,000

-------------- $ 130,000

Sub Total $ 473,943.9

The Award is to be reduced by 50 percent being the level of contributory
negligence by the deceased:

TOTAL $ 236,972

The Third Party and the First Defendant
[282] The third party proceedings are a live issue because I have found the first
defendant is liable in damages to the plaintiff as a consequence of the first
defendant’s breach of duty.
[283] The first defendant issued a third party notice originally in the Local Court

where these proceedings were commenced. The third party notice claims
inter alia:

“3. At all material times the First Defendant had with the Third
Party a current policy of insurance described therein as
Malpractice Establishments (CGU MAL EST 03/99)
(hereinafter referred to as ‘the policy’).
4. The policy provided inter alia, cover of the First Defendant against claims for breach of professional duty in the delivery by the insured of health care services in dentistry, psychology, nursing and administration.
5.
Plaintiff alleges inter alia an administrative failure on the part
By her Statement of Claim filed on 28 February 2003, the the Third Party of the claim against it and sought to be indemnified as against any judgement, award or settlement pursuant to the claim, as well as its legal costs of and incidental to the proceedings, as provided for under its policy of insurance with the Third Party.
6. The Third Party refuses to indemnify the First Defendant under the policy and denies liability for the whole of any judgement, award or settlement, or legal costs in respect thereof.
7. The First Defendant therefore prays that the Third Party be joined in these proceedings and seeks an order that the Third Party indemnifies the First Defendant in accordance with the policy.”

[284] The third party filed an amended defence to the first defendant’s Statement

of Claim essentially denying the liability of the third party to indemnify the
first defendant under the terms of the insurance policy. It was not in dispute
that the first defendant held a policy of insurance with the third party being

a Malpractice Establishment Insurance Policy which was valid from 4.00 pm
10 July 2000 to 4.00 pm 10 July 2001. The policy number was
04MAL0302118 and included a schedule.
[285] The third party also raised an issue as to whether it should have been joined which is relevant to costs only.
[286] The policy is Exhibit D46. A summary of the relevant provisions of the
policy were provided to the Court. The cover that is offered by the policy is
set out in s 3 and defined in Special Condition 5 as follows:

is headed “Medical Malpractice Exclusion” and reads: “This Policy covers the Insured for Breach of Professional Duty as nursing and administration services only. …”
[287] This is limited by an exclusion in special condition 2 in the schedule which “It is hereby declared and agreed that this Policy does not cover any Claim/s against medical practitioners whether such medical
practitioners are employed or acting as a contractor of the Insured
entity.
‘Medical Practitioner’ refers to doctors who are medically qualified
including but not limited to anaesthiologists, radiologists,
pathologists, surgeons, cardiologists or general practitioners. …”

[288] Ms Kelly, on behalf of the Third Party, argues that because of the exclusion

clause in Special Condition 2 the policy does not cover Congress against any
liability arising out of a breach of duty by a “medical practitioner”. That is
whether the breach of duty is in the provision of administration services or
otherwise.
[289] I accept the principle that where there are two or more concurrent causes of
the alleged loss, one of which was an insured event and one of which was an
excluded event under the policy, there is no obligation to indemnify under the policy (Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] QB 57; Elilade v Nonpareil Pty Ltd (2002) 124 FCR
1 per Mansfield J [51] to [55].
[290] Ms Kelly asserts that if there was any negligence by Congress, it was a
breach of duty by one or more of the three medical practitioners, Dr Boffa,
Dr Janusic and Dr Yazdani.
[291] I have already dealt with all of the assertions with respect to Dr Boffa and
found that the plaintiff has failed to satisfy me on the balance of
probabilities that Dr Boffa was negligent.
Dr Janusic
[292] Dr Janusic was placed in a very difficult position because she had been
given the wrong file, being a file for a person with the same name as the
person for whom the appointment at the Physician Clinic was intended. The
file Dr Janusic had was for Clive Impu Snr, a diabetic. I would agree with
Ms Kelly’s submission that, as there was no indication on the file of Clive
Impu Snr as to why he had been referred and with the possible serious

complications of diabetes, it would have been reasonable, in the
circumstances, for Dr Janusic to make further enquiries about why that
patient had been referred in order to make a clinical judgment about what
kind of follow up was appropriate. There was no evidence from the file to
indicate Clive Impu Snr would necessarily have presented again within a

short space of time so that an opportunistic follow up could have taken
place. Clive Impu Snr had attended the clinic on three consecutive dates in
January 2000 for the dressing of a wound. Prior to that, it was nine months
before he attended the clinic relating to an eye problem and prior to that,
January 1999, with an alcohol related problem. There were earlier entries in
1998 indicating a failure to attending an appointment and attend but not

waiting to be seen. The two occasions he was seen were for relatively minor
matters. Dr Janusic gave evidence that the file she was given was of a
regular attendee who was already on medical treatment and already had
blood tests so there was no reason to think he was inappropriately there. No
alarm bells went off as far as Dr Janusic was concerned and she believed he
would be picked up on the next visit.
[293] However, an examination of the file of Clive Impu Snr reveals that his last

attendance prior to 21 March 2000 on 24 January 2000, was for the
treatment of a wound. There was no information about why he would have
been referred. There was no reason to assume he would be back within a

couple of weeks for medication. In fact, it appears from the file he did not
return to Congress until 15 May 2000. There is no indication that on that
date the reason for his referral on 21 March 2000 was addressed. He was a
diabetic and there could have been reasons for the referral that needed
further inquiry. These further enquiries included, but were not limited to, an

enquiry at the reception desk as to the existence of a referral form which
would have alerted Dr Janusic to the possibility of another file.
[294] It was known that approximately 10 percent of patients at Congress had the
same name. There must always exist the possibility that there is another file in the same name. An enquiry at the reception desk could have revealed the
existence of the file for Clive Impu Jnr.
Dr Yazdani
[295] The next medical practitioner at Congress to see the deceased after 2 March
2000 was Dr Yazdani. This was on 23 April 2000 when the deceased

attended to have boils treated. Dr Yazdani does not appear to have read the
note of Dr Boffa on 2 March 2000 which was immediately above the note
Dr Yazdani wrote on 23 April 2000. There is no mention of a query as to
whether the deceased had undertaken the tests that had been prescribed.
Both Dr Boffa and Dr Janusic gave evidence that in accordance with sound
practise the next treating doctor should familiarise himself with the patient’s
history. This was not done. Dr Yazdani also saw Clive Impu Snr on 15 May
2000. There is no indication he enquired about the notation made by
Dr Janusic on 21 March 2000 which was the last note on the file. Had he
done so the error could have been discovered at that point.
Findings
[296] I have already detailed the findings of administrative failure by the
administrative staff at Congress.
[297] Ms Kelly argues that as the medical practitioners contributed to the failures
that led to the deceased’s death, the exclusion clause in Special Condition 2
of the policy applies and the third party is not liable to indemnify Congress.
[298] Ms Gearin, counsel for the first defendant, submits that any negligent

administrative action by medical practitioners is covered by the policy and
not excluded.
[299] It was submitted, on behalf of the first defendant, that Section 11 of the
policy identifies words with special meanings. “Malpractice” is specifically
defined as “[b]reach of professional duty of care in the provision of medical
services”. Ms Gearin argues that, if the policy was seeking to exclude all actions by medical practitioners, then it would have identified the special condition as “Medical Practitioners Exclusion”.
[300] The position for the first defendant is that any negligent administrative
action by medical practitioners is covered by the policy of insurance.
[301] I do not accept the submission made on behalf of the first defendant. I do

not think it necessary, as counsel for the first defendant suggested, to
analyse which actions of either Dr Boffa, Dr Janusic or Dr Yazdani were
administrative and which were medical.
[302] I agree with the submission made by Ms Kelly that s 6.11 of the policy

clearly states that medical practitioners are excluded from this policy.
Section 6 of the policy is headed “What is not covered”. Section 6.11 is
headed “Medical Practitioners”. It then provides:
“Claims against Medical Practitioners, regardless of whether such contractor of the Insured entity.”

[303] The death of the deceased was brought about by a combination of failures,
including failures in the administrative system at Congress, failures by
medical practitioners at Congress and failures by the deceased himself.
[304] I consider, on the plain reading of the policy, “Medical Practitioners” are

excluded from cover under the policy in whatever capacity they may be
acting.
[305] I also agree with Ms Kelly that it is the insurance policy which determines
the rights as between the first defendant and the third party. The provisions

of the Law Reform (Miscellaneous Provisions) Act are not relevant as
between the first defendant and the third party.
[306] Accordingly, I dismiss the proceedings against the third party. I enter
judgment for the third party on the third party proceedings.
[307] Summary of Orders

1. Judgment in favour of the plaintiff against the first defendant in the
sum of $236,972.
2.           Judgment in favour of the second defendant against the plaintiff.
3.           Judgment in favour of the third party against the first defendant.
4.           The parties have liberty to apply on the questions of costs.

_____________________________________

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Citations

Young v CAACI [2008] NTSC 47

Most Recent Citation

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PARTIES:	YOUNG, Rosario (as representative of the family of CLIVE HENRY IMPU)
v
CENTRAL AUSTRALIAN ABORIGINAL CONGRESS INCORPORATED
BOFFA, John Dominic
CGU INSURANCE LIMITED
(ABN 27 004 478 371)
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:	61/03 (20303381)
DELIVERED:	19 November 2008
HEARING DATES:	11-21 February; 25 & 26 August 2008
JUDGMENT OF:	THOMAS J
CATCHWORDS:

Plaintiff:	P Barr QC & A Lindsay
First Defendant:	S Gearin
Second Defendant:	H Abbott
Third Party	J Kelly

Plaintiff:	Povey Stirk
First Defendant:	Collier & Deane
Second Defendant:	Morgan Buckley
Third Party	Minter Ellison
Judgment category classification:	C
Judgment ID Number:	tho200805
Number of pages:	125
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

“1.	The cause of death was coronary atherosclerosis (ie. fatty narrowing of the coronary arteries which supply blood to the heart), which resulted in coronary thrombosis (ie. the formation of a blood clot in a coronary artery) and consequent damage to heart muscle, with failure of the heart as a pump.
2.	The presence of scarring of the heart muscle (ie. myocardial fibrosis) is consistent with the effect of long-standing coronary artery disease.”

“8.1	The deceased failed to keep the appointment at the physician clinic on 21 March 2000.
8.2	The deceased failed to follow up with the first or second defendants or any other doctor the fasting cholesterol test, the exercise ECG test or a further specialist appointment.
8.3	The deceased failed to mention to the doctors at the first defendant’s clinic on 23 April 2008, 8 May 2000 or 29 December 2000 or at any other time the fact that he had not undertaken either of the two tests or seen a specialist.
8.4	The deceased failed to mention to doctors at the Alice Springs Hospital on 15 August 2000, 3 December 2000 and 30 December 2000 the symptoms which he suffered on 2 March 2000 and of which he complained to the second defendant on that day and the first defendant’s reference to the possibility of ischaemic heart disease and his referral for tests and specialist opinion.
8.5	The deceased failed to go back to the first defendant’s clinic or the second defendant for further consultation and treatment following the further symptoms he suffered on 15 August 2000, 3 December 2000 and 30 December 2000.”

“Story:	smokes half a packet per day
No alcohol
No lunch today
Stressed +++ about kids, hard work
Pain gone now
Retrosternal discomfort, not pain
No radiation
No sweating, vomiting, nausea
Felt shortness of breath with pain
ECG – December 31 – normal
Observations:	looks well
Afebrile
Blood pressure 110/70
Heart rate 76
Throat tick (normal)
S1-S2 nil added (normal heart sounds – no murmurs)
Lungs clear
Assessment:	Episodic chest pain
Not related to exercise
Plan:	fasting cholesterol
Monday tick appointment
Cease smoking
Discussed risk factors for ischaemic heart disease
Refer specialist clinic as wants further opinion.”

Plus Interest @ 5% over 7 years	$ 15,017
------------
Sub Total	$57,925
Plus 10 percent for positive contingency	$ 5,792.5
_________
TOTAL	$63,717.5
Future Loss Dependency

Life Expectancy	12 years
Multiplier	286
Age of Dependency	18
Dependency %	66.2 %
Rosario	$ 16,370
Bruce	$ 7,921
Norman	$ 10,593
Raelene	$ 10,593
----------
TOTAL	$ 45,477

Rosario	$ 19,644
Bruce	$ 9,505.2
Norman	$ 12,711.6
Raelene	$ 12,711.6
-------------
TOTAL	$54,472.4

Past Household Services	$ 97,240
Interest 7 years @ 5%	34,034

“3.	At all material times the First Defendant had with the Third Party a current policy of insurance described therein as Malpractice Establishments (CGU MAL EST 03/99) (hereinafter referred to as ‘the policy’).
4.	The policy provided inter alia, cover of the First Defendant against claims for breach of professional duty in the delivery by the insured of health care services in dentistry, psychology, nursing and administration.
5.	Plaintiff alleges inter alia an administrative failure on the part
By her Statement of Claim filed on 28 February 2003, the the Third Party of the claim against it and sought to be indemnified as against any judgement, award or settlement pursuant to the claim, as well as its legal costs of and incidental to the proceedings, as provided for under its policy of insurance with the Third Party.
6.	The Third Party refuses to indemnify the First Defendant under the policy and denies liability for the whole of any judgement, award or settlement, or legal costs in respect thereof.
7.	The First Defendant therefore prays that the Third Party be joined in these proceedings and seeks an order that the Third Party indemnifies the First Defendant in accordance with the policy.”