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Lib No: 970069C

Document Name: FC\APPEAL\970069C.DOC (KC) Page 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CORAM : MALCOLM CJROWLAND JWALLWORK J

HEARD : 13 JUNE 1996

DELIVERED : 26 FEBRUARY 1997

FILE NO/S : APPEAL FUL 130 of 1995

BETWEEN : THE BOARD OF MANAGEMENT OF ROYALPERTH HOSPITALFirst Appellant (First Defendant)

JANE MARGARET WHITAKERSecond Appellant (Second Defendant)

AND

JAMES SELWYN FROSTRespondent (Plaintiff)

Representation:

Counsel:Appellants : Ms J H SmithRespondent : Mr P A Monaco

Solicitors:Appellants : State Crown SolicitorRespondent : Godfrey Virtue & Co

Library Number : 970069C

Lib No: 970069C


WALLWORK J:

This appeal concerned a judgment given in the District Court, allowing

a claim in negligence against the two appellants arising from an attendance by

the respondent at the Royal Perth Hospital following pains in his chest and

other symptoms which he thought could be a heart attack. Having received

certain attention at the hospital, the respondent was sent home on the basis that

the source of the pain was really a gastric problem. It was later ascertained by

his general practitioner that he had had a heart attack. The learned Judge

allowed the claim and awarded the respondent damages against both

appellants.

The appellants appeal on three grounds. As counsel put it at the

hearing, the first issue was the standard of care which is required of persons

who are employed in a casualty department of a large hospital such as the

Royal Perth Hospital. The second issue was the issue of causation which was

said to turn on a consideration of the loss of a chance of treatment by the

respondent. The third issue related to quantum.

The first issue was contained in grounds 2 to 5(a) of the grounds of

appeal. The appellants abandoned ground 1 of the appeal.

The appellants contended that the learned trial Judge had erred in

failing to correctly determine the standard of care which is expected of casualty

staff. It was said that it appeared from his Honour's reasons that he had

determined the standard of care on the basis of what Dr Woollard, a respected

cardiologist, would have done in all the circumstances. That a resident casualty

officer could not be expected to exercise the same standard of care as a

specialist cardiologist. Alternatively, it was claimed that the learned trial Judge

seemed to have assessed the standard of care on the basis of what

Dr Esselmont, a general practitioner of 36 years standing, had said about what

he considered to be reasonable.

Lib No: 970069C


It was contended that there were only six hours from the onset of chest

pain in which treatment would have lessened the damage to the plaintiff's heart.

His Honour said in his reasons for judgment that it was obvious that the

respondent had complained, at least to the ambulance officer, and may be as

well to a nurse at the hospital when he arrived, that he had suffered severe

chest pain the night before. However, no particular attention had been paid by

either counsel to the question of whether or not the respondent had been

suffering from severe chest pain from 7.00 pm the night before. The

respondent had based his case upon his complaints of chest pain commencing

after his arrival at the hospital at about 4.00 am. He did not appear to attribute

much significance either personally or through his medical evidence to any

symptoms he had experienced the night before. His Honour said that that

being the case, he would not pay much attention to that issue, save to observe

that if the respondent had been suffering from chest pain for some 11 hours

before he attended at the hospital then, on the evidence, it seemed unlikely that

he had already suffered a myocardial infarction and heart damage prior to

4.00 am, bearing in mind the normal ECG. Alternatively, it could have been

asserted that the respondent had been suffering from a myocardial infarction at

some period during the night and that any damage to his heart muscle would

probably have been sustained prior to coming to hospital. However, he

repeated that the issue had not been ventilated at the trial and he would make

no further reference to it.

His Honour assumed for the purposes of his judgment that the plaintiff's

relevant chest pain had commenced at 3.00 am or thereabouts on 6 April 1988.

He had been taken to the casualty department of the Royal Perth Hospital at

about 4.00am in an ambulance and had stayed at the hospital until he was

allowed to go home at about 7.00 am in the morning. He had been examined

by the second appellant shortly after his attendance at the hospital. An ECG

Lib No: 970069C


was taken sometime before 4.25 that morning which did not show any cardiac

abnormalities. He was given some oxygen and a detailed history was taken by

the second appellant, who diagnosed the respondent's pain as gastric in origin.

He was then seen by a casualty registrar, who examined him and the ECG

results and came to the same diagnosis. It was determined that the respondent

could then go home.

It was common ground between the parties that the only treatment

which could have been administered, which may have had the effect of

lessening the damage to the respondent's heart, was the administration of

thrombolytic drugs which dissolve any blood clots in the heart. Evidence was

given that those drugs were not administered to patients thought to be having a

cardiac arrest, unless there was an ECG which showed particular abnormal

changes. At the relevant time in 1988 it was thought that such drugs would

have effect if they were given as soon as possible after the onset of pain,

preferably within the first hour, but they would only have been given during the

six hour period after the onset of pain. It was therefore the case that after

9.00 am in the morning there was really no treatment which could have been

administered which would have minimised or reduced any damage to the

respondent's heart. It was said that the only basis on which the drugs would

have been administered was if there had been a second ECG performed at the

hospital which had shown the particular changes. It had been Dr Woollard and

Dr Cope's evidence that they, being experienced cardiologists, and because of

the unusual nature of the respondent's history, age and symptoms, would have

kept him in hospital and administered a further ECG. Doctor Woollard said

that he perhaps would have administered a second ECG at about 7.00 am in

the morning. Both of the doctors said in their evidence that they would not

expect a casualty registrar or resident to have the same level of experience and

knowledge of the unusualness of presentation of a person having a cardiac

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infarction. It was contended by the appellants that the trial Judge should not

have taken into account what the general practitioner Dr Esselmont would have

done, or what he said should have been done, in relation to the standard of care

expected from the doctor and the casualty staff at the Royal Perth Hospital.

It was Dr Esselmont's evidence that the respondent's wife had

telephoned his surgery for an appointment and made an appointment to see him

at 10.15 am, after the respondent had returned home from hospital. When

Dr Esselmont saw the respondent he was of the view that it sounded very much

to him like the respondent had been having a cardiac infarction.

Doctor Esselmont took a blood test for cardiac enzymes. That had occurred at

10.15 am. He had not administered a second ECG because he thought the

most useful test to take at that particular time was the cardiac enzymes test.

The evidence was that it was unlikely that a blood test for cardiac enzymes

would have shown any result until at least some time after 9.00 am. That was

because once there was damage to the heart the enzyme level was raised.

The learned Judge said that in his view the respondent should have

been given a second ECG on the morning of 6 April 1988 prior to 9.00 am. He

said it appeared to have been a well known fact that it was not uncommon for

an initial early ECG of a person having a myocardial infarction to be normal.

With a continuation of symptoms another ECG ought to have been

administered at the hospital.

Doctor Cope had said in his evidence that because of the unusual

nature of the plaintiff's symptoms he did not think that the actions of the

hospital staff had fallen below a reasonable standard of care. Doctor Woollard

had said:

"Based on his description of the severity and duration of the pain Ithink I may well have admitted him to hospital despite the otherfindings mentioned above. It may be unreasonable to expect the

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staff in the accident and emergency department to have the samelevel of suspicion as a cardiologist."

He went on to say:

"On the basis of probabilities I think I would have to agree that itwas really very unlikely that this represented a heart attack andtherefore it was reasonable for a resident at that level to have notmade a diagnosis of myocardial infarction."

Later on in his evidence, he was asked, "What would Keith Woollard have

done in that situation?" His answer was: "I believe I would have kept the

patient in hospital ... ". Doctor Woollard went on to say:

"Yes. I don't think that the management fell outside what wouldbe classed as reasonable. It certainly was not ideal but I don'tbelieve it fell outside the grounds of what was reasonable ... Weonly had the one [ECG] at 4.05 and if there had been one done at7.00am - I hope I'm allowed to speculate there - but its much morelikely that that would have shown changes."

He was then asked: "And that's exactly what you would have done?" His

answer was, "Exactly". He was then asked: "But you don't set that same

standard for the hospital or Dr Whitaker?" His answer was:

"Under the collective circumstances surrounding this individualpatient and particularly with their knowledge of the normalcoronary arteriogram I think that it would fall within theparameters of reasonableness, the limits of reasonableness."

He later went on to say:

"... and my own view is that I wouldn't find it unreasonable forsomebody to have discharged him. I would not regard it as idealtreatment however."

His Honour concluded that the approach taken by Dr Woollard in his

evidence seemed to him to be that as a cardiologist Dr Woollard personally

found fault with the decision on the part of the second appellant to exclude a

diagnosis of myocardial infarction and to discharge the patient from hospital,

but he was unwilling to say that a junior doctor like the second appellant had

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fallen down on her duty in doing so. His Honour said he was impressed by

Dr Woollard's demeanour in the witness box. He had seemed to be doing his

very best to be objective. In all the circumstances, his Honour felt that

Dr Woollard's concessions were significant. His personal view had been that

the respondent should not have been discharged, but he was not willing to say

that a resident medical officer at the emergency department of a public hospital

should have had the same view.

His Honour said that he thought that the most impressive witness on the

second issue, which was whether Dr Whitaker had been negligent in excluding

a diagnosis that the plaintiff was suffering from myocardial infarction, had been

the general practitioner Dr Esselmont. His Honour said that Dr Esselmont was

a general practitioner of some 36 years experience. He had given his evidence

in a most impressive fashion. He had the distinct and great advantage over the

expert witnesses called by the appellants, in that he had seen the respondent on

6 August 1988 at 10.15 am, approximately three hours after he had been

discharged from the hospital. He had thought that the respondent had been

suffering from a myocardial infarction. It was his opinion that the respondent's

presenting symptoms were sufficiently typical of a heart attack for him to

examine his blood for cardiac enzymes, despite the reported normal ECG. It

had sounded very much like the respondent was having a heart attack. The

ECG at the RPH could have been found normal for a number of reasons:

"Possibly enough time hadn't passed. Possibly it was because ofinfarction of that part of the heart not covered by the ECG. It ispossible because it was an ECG that was too difficult to read ... "

He had gone on to say:

"If I get a patient in my office with chest pain I normally do anECG because one usually hasn't been done before and Iautomatically do blood tests as well and preferably I like to seethe patient later on to do another ECG and to follow up bloodtests."

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He had said that he thought that if the blood tests had been taken at six o'clock

in the morning they would have started to show up then.

His Honour came to the conclusion that, in his opinion, a diagnosis of

myocardial infarction should not have been excluded by the second appellant.

The respondent should not have been discharged from the hospital at 7.00 am

on the morning of 6 April 1988. He accepted Dr Esselmont's evidence that the

respondent should have been kept in hospital for further observation and tests

and that the respondent had established on the balance of probabilities that the

doctor at the hospital had been negligent in excluding a diagnosis of

myocardial infarction and discharging the respondent from hospital three hours

after his initial attendance.

It was contended for the appellants that the difficulty in diagnosing the

respondent's condition in this case had been dependent upon a number of

factors. First of all he was only aged 34. Evidence had been given that it was

very unusual for a young man of that age to have a heart attack. Further, the

learned trial Judge had found that the nature of the chest pain experienced by

the respondent at the time was not as severe as would be expected normally

from a person suffering from a cardiac infarct. Thirdly, the doctor at the

hospital had taken a very comprehensive history which the learned trial Judge

had found was appropriate in detail and extent. Most importantly, that history

had revealed that the respondent had had similar pain in the past which had

been then investigated by a coronary angiograph. At the time the pain had

been discarded as being of cardiac origin. That angiograph had shown no

cardio abnormality. On the morning in question in this case, the doctor who

had examined the plaintiff, and the registrar who had also made a further

examination, had had the respondent's history that he had on the earlier

occasion been investigated and had been found not to have pain of cardiac

origin. That history and examination had to be taken with the normal ECG

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which had been taken at the hospital early that morning. It was said that it had

been reasonable for the doctors at the hospital to come to the view that the pain

was not cardiac in origin.

In essence, it was contended that the standard of care which had been

applied by the learned trial Judge had really been a standard of care which

would have been expected of an expert cardiologist. Simply having chest pain

was not necessarily an indication that a person was having a cardiac infarct.

There had been evidence before the Judge that only 10 to 15 per cent, or

perhaps even as high as 30 per cent of people, who present to casualty

departments with pain of that nature turn out to be cardiac in origin. The only,

perhaps, negligent act of the appellants had been the failure to administer a

second ECG at an earlier time before 9.00 am, which was the last time at

which any treatment could have lessened damage from the attack. It was said

that Dr Esselmont's evidence had been that the hospital should have kept the

respondent in hospital and administered a blood test for cardiac enzymes,

whereas the evidence given by Dr Woollard and Dr Cope was that the

administration of a blood test for cardiac enzymes would not really have

greatly assisted. Therefore Dr Esselmont's view of the matter was really

irrelevant. Dr Esselmont had made no comment in his evidence that the

hospital should have administered a second ECG.

It had been Dr Woollard's view that the fact that no blood test had been

taken was unlikely to have influenced the management of the respondent,

considering that the cardiac enzymes remain normal until about six hours after

the onset of pain. He had said it was very unlikely that any blood test taken

until after 7.00 am would have shown increased cardiac enzymes. It had been

his view that the respondent should have been given a second ECG on the

morning of 6 April prior to 9.00 am. The only test which would have made a

difference to what had happened was a second ECG.

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It was suggested to counsel that it was important in this case that

Dr Esselmont had worked in accident and emergency situations in the United

Kingdom and was in a position to say something about what one could expect

under the circumstances. He was somebody who had actually worked in that

kind of area. In answer to that proposition it was said for the appellants that he

had not seemed to indicate that a second ECG should have been taken.

On the basis of the evidence from the medical specialists, the learned

Judge was able to make a finding that if a second ECG had been administered

at any time up until about 9.00 am it seemed likely that the ECG would have

been abnormal. The medical evidence was that this would have been

desirable. However, Dr Woollard had said: "It may be unreasonable to expect

the staff in the accident and emergency department to have the same level of

suspicion as a cardiologist." He was saying that this is what he would do.

A separate submission of the appellants was that the evidence was that

the respondent had first of all been seen by Dr Whitaker about 4.30 am. Later

at about 5.30 am he had been seen by Dr Woosey who was a casualty

registrar. Doctor Woosey had quite clearly said: "It was on the basis of my

decision that the plaintiff was allowed to go home." It was contended that

even if the appellants could not overturn the finding of negligence against the

Hospital, the finding of negligence against Dr Whitaker should be set aside

because being a resident she did not have the final say. She had referred the

patient to Dr Woosey who had made the decision. Doctor Woosey had had the

notes of examination taken by Dr Whitaker and also the ECG. He, himself,

had taken a history from the respondent and made his own examination of him.

He had written that he thought the respondent's pain was osteophagia-gastric.

He had said it had been his decision that the respondent could leave the

hospital.

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In my view, it has been established that the decision that the respondent

could leave the hospital was not made by the second appellant but by the

casualty registrar. Accordingly, the finding of liability against the second

appellant should be set aside.

The question is raised in this appeal whether, if a specialist cardiologist

would have taken a second ECG, doctors working in an emergency department

at a big public hospital in a city the size of Perth, should undertake similar

procedures. It might be wrong to say that because a doctor working in such a

situation is not a senior medical practitioner, the test should be different to that

applied to cardiologists.. A procedure could be laid down by specialists to be

followed by medical practitioners in that situation.

The casualty department at Royal Perth Hospital is a designated place

to which members of the public, suffering from suspected heart attacks are

taken by ambulance. It was the evidence in this case that persons suffering

from a myocardial infarction may reveal a normal ECG within some hours of

the onset of chest pain. However, it is possible that changes will show up on a

later ECG.

In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 563,

Kirby P (as he then was) in a dissenting judgment, but not on this aspect,

quoted the following passage from the reasons of Denning LJ in Cassidy v

Ministry of Health [1951] 2 KB 343 at 359-362:

" If a man goes to a doctor because he is ill, no one doubts thatthe doctor must exercise reasonable care and skill in his treatmentof him: and that is so whether the doctor is paid for his servicesor not. But if the doctor is unable to treat the man himself andsends him to hospital, are not the hospital authorities then under aduty of care in their treatment of him? I think they are. Clearly, ifhe is a paying patient, paying them directly for their treatment ofhim, they must take reasonable care of him; and why should itmake any difference if he does not pay them directly, but onlyindirectly through the rates which he pays to the local authority or

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through insurance contributions which he makes in order to get thetreatment? I see no difference at all. Even if he is so poor that hecan pay nothing, and the hospital treats him out of charity, still thehospital authorities are under a duty to take reasonable care of himjust as the doctor is who treats him without asking a fee. In myopinion authorities who run a hospital, be they local authorities,government boards, or any other corporation, are in law under theselfsame duty as the humblest doctor; whenever they accept apatient for treatment, they must use reasonable care and skill tocure him of his ailment. The hospital authorities cannot, ofcourse, do it by themselves: they have no ears to listen throughthe stethoscope, and no hands to hold the surgeon's knife. Theymust do it by the staff which they employ; and if their staff arenegligent in giving the treatment, they are just as liable for thatnegligence as is anyone else who employs others to do his dutiesfor him..."

Further on in the same decision, Lord Denning said:

"...the hospital authorities accepted the plaintiff as a patient fortreatment, and it was their duty to treat him with reasonablecare...If those surgeons and nurses did not treat him with propercare and skill, then the hospital authorities must answer for it, forit means that they themselves did not perform their duty to him."

Kirby P also referred to the reasons of Mason J (as he then was) in

Kondis v State Transport Authority (1984) 154 CLR 672 at 686 where

his Honour said:

"The liability of a hospital arises out of its undertaking anobligation to treat its patient, an obligation which carries with it aduty to use reasonable care in treatment, so that the hospital isliable, if a person engaged to perform the obligation on its behalfacts without due care: Gold (59). Accordingly, the duty is onethe performance of which cannot be delegated, not even to aproperly qualified doctor or surgeon under a contract for services:Cassidy (60)."

There was no point taken on this appeal, that the hospital was not liable

for any negligence which was established in the treatment of the respondent.

At p603 of his Honour's reasons in Ellis (supra), Samuels JA said:

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" Leaving aside for the moment the recent development inAustralia of the doctrine of independent or non-delegable duty, itseems to me that, so far as the responsibility of hospitals to theirpatients is concerned, the matter has been well stated, if I may sayso, by Houlden JA in the second dissenting judgment inYepremian. His Lordship said (at 581):

' First, a general hospital may function as a place wheremedical care facilities are provided for the use of aphysician and his patient. The patient comes to thehospital because his physician has decided that thehospital's facilities are needed for the proper care andtreatment of the patient. This use of the hospital is madepossible by an arrangement between the hospital and thephysician by which the physician is granted hospitalprivileges. Where a hospital functions as merely theprovider of medical care facilities, then, as the trial Judgepointed out, a hospital is not responsible for the negligenceof the physician. The present case does not, of course,come within this classification.

Second, a general hospital may function as a placewhere a person in need of treatment goes to obtaintreatment. Here the role of the hospital is that of aninstitution where medical treatment is made available tothose who require it. The present case falls in this secondclassification. Tony Yepremian was brought to theScarborough General Hospital because he was in need oftreatment. Does a hospital in these circumstances have theduty to provide proper medical care to a patient? In myjudgment, it does.' "

At 604 Samuels JA continued:

" In my opinion therefore while proof of the relationship ofhospital and 'patient' will generate a special duty of some kind,closer scrutiny of the facts (cf the analysis proposed by Mason Jin Stevens v Brodribb Sawmilling) is necessary in order toestablish its scope. It is a question of what medical services thehospital has undertaken to supply. In a case such as Albrightonwhere the patient went directly to the hospital for advice andtreatment a special duty will arise and may well embrace the

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provision of the 'complete medical services' which Reynolds JA(at 561) thought it open to conclude that the hospital hadundertaken to render, and that duty arose as soon as the plaintiffresorted to the hospital's out-patients' clinic; it did not wait uponadmission. In such a case the hospital, by accepting the patient,undertakes to make available all the therapeutic skill and deviceswhich it is reasonably able to deploy. The patient's choice isdetermined by his or her decision to knock at the door of thedefendant's hospital, as Lord Greene put it in Gold (at 302). If thehospital's response is to open the door and admit the patient to thebenefits of the medical and surgical cornucopia within, it remainsresponsible to ensure that whatever treatment or advice the horndisgorges is given with proper care; its duty cannot be divested bydelegation.

But the evidence in a particular case may establish that thehospital's undertaking was of a more limited kind. As Morris LJpointed out in Roe (at 89) and (at 91) the nature of the obligationwhich a hospital has assumed becomes ultimately a question offact, a proposition which the Court of Appeal adopted inAlbrighton.

...

My conclusion does not impose differential duties on a hospital.Following Kondis a hospital owes an independent non-delegableduty to ensure that the treatment it undertakes to provide isperformed with reasonable care. The question in every case is thenature of that undertaking.

Complaint has been made of the absence of judicial expositionof the policy reasons for applying the non-delegable duty to thehospital-patient relationship, eg, W P Whippy, 'A Hospital'sPersonal and Non-delegable Duty to Care for Its Patients - NovelDoctrine or Vicarious Liability Disguised?" (1989) 63 ALJ 182 at201. That application merely represents the wider operation of aprinciple of considerable flexibility whose basic rationale has beenexplained in Kondis, and Commonwealth v Introvigne (1980) 150CLR 258. It arises from a relationship which combines thedependence of A upon the reasonable care, skill and judgment ofB with the legitimate expectation that B will ensure that thosequalities will be exercised in protection of the person or property

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of A. A further policy decision will be required to determinewhen that peculiar combination of dependence and expectation -the generative element identified by Mason J in Kondis (at 687) -exists. But it can scarcely be doubted that it does so in the case ofthe relationship between hospital and patient."

Knowing that action had to be taken within six hours of the onset of

pain, it in my view would have been reasonable to expect that doctors on duty

at the casualty department of a public hospital such as the Royal Perth

Hospital, would take a second ECG in circumstances such as were present in

this case, before they sent a suspected heart attack patient away from the

hospital. It would have been reasonable to have had some kind of a checklist

available to the doctors on emergency duty at such a hospital, detailing what

ought to be done for the treatment of suspected heart attack patients.

A third argument for the appellants was that the case had really been

about the loss of a chance to be treated with thrombolytic drugs which the

respondent claimed would have minimised or reduced the heart muscle

damage. It was said that it had been clear that this was really the only

significant treatment which could have been administered which would have

reduced the damage from the heart attack. It was common ground that those

drugs, because they have serious side effects, were not administered unless an

ECG showed particular abnormal changes. This was because there is a risk of

0.5 to 1 per cent of an intercerebral haemorrhage occurring. The purpose of

the drugs is to dissolve any blood clot that might be obstructing a coronary

artery and causing a heart attack.

Doctor Woollard had described the changes which must be apparent on

an ECG for those drugs to be administered. It was common ground that those

drugs would only have a positive effect where the cause of the heart attack was

a clot blocking a coronary artery. If the heart attack was from another cause,

for example, a spasm of the coronary arteries, then such drugs would have had

no effect and the heart damage would have occurred in any event.

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It was said that the trial Judge had made a clear finding that he was not

sure as to the cause of the heart attack but it could have been from either of

those causes. What his Honour said was:

"His unhappy situation cannot be attributed entirely to thedefendant. When all is said and done he sustained damage to hisheart muscle which has produced a variety of consequences butwhich may have been reduced if there had been timely medicalattention. There is no evidence to assist me on the question of theextent to which the plaintiff suffered more disability than heotherwise would have if there had been a late but correctdiagnosis. There is no certainty that the cause of the plaintiff'smyocardial infarction was a thrombosis which might have beenrelieved by the timely administration of thrombolytic therapy. It isonly in that specific circumstance that the plaintiff's heart muscledamage may have been reduced."

It was contended that in order for a finding of liability to be made the

learned trial Judge was required to determine that the damage to the heart

muscle would have been, or could have been, minimised by the thrombolytic

therapy. Dr Cope had said that it was unlikely to be a heart attack caused by a

clot in this case, because of the fact that the respondent had been tested and

had normal coronary arteries two and a half years before. Counsel submitted

that an ECG does not indicate the cause of a heart attack. Dr Cope had said

that because the respondent had been shown not to have thrombosed arteries

prior to the heart attack and immediately after it, it was unlikely that the heart

attack was caused by a thrombotic condition. It was said that the learned trial

Judge had preferred the evidence of Dr Cope in this regard and had not

accepted Dr Woollard's view. Doctor Cope had said:

"If the dominant mechanism was primary artery spasmthrombolytic therapy almost certainly would not have beenhelpful. ... It is speculative to say whether this could be either aspontaneous thrombus, perhaps occurring on a microscopicabnormality within the artery, or whether there was a spasm and I

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really don't think that there is any way in which one can reliablydistinguish what caused the event at that particular time."

It was said that Dr Cope had given evidence that the drugs were most effective

in the earlier stages, up to three hours after the onset of the attack and then had

some effect for up to six hours.

It was submitted that in this case the respondent would have had to

prove on the balance of probabilities that the failure to administer thrombolytic

drugs was a contributing cause to the damage to the heart muscle. The learned

trial Judge would have had to have made a finding that it had been established

on the balance of probabilities that thrombolytic therapy would have minimised

or reduced heart muscle damage. What his Honour had found was:

"Abnormality of the ECG would be likely to have resulted in swiftadministration of thrombolytic therapy which may have minimisedor reduced heart muscle damage."

His Honour also found:

"By reason of the second defendant's negligence the plaintiff hadlost the chance of having his heart muscle damage minimised orreduced by timely thrombolytic therapy and I am accordingly ofthe view that the second defendant's negligence caused damage tothe plaintiff."

His Honour went on to say:

"Perhaps in other words, the plaintiff has proved on the balance ofprobabilities that his life expectancy may have been decreased andhis non-pecuniary loss may have been exacerbated as a result ofthe negligence of the defendant in excluding a diagnosis ofmyocardial infarction and failing to keep him in hospital forfurther observation, testing and treatment on the day in question."

Counsel for the appellants contended that evidence had been given by

Dr Woollard and Dr Cope that an ECG may have shown up abnormalities in

the 24 hour period. There was no evidence saying that it was more likely or

not that it would have been abnormal. Secondly, it was contended that

because the learned Judge did not make a determination that it was more

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probable than not that the administration of the thrombolytic therapy would

have minimised or reduced the muscle heart damage, the respondent had failed

to prove causation.

It was contended that although Dr Woollard had said that it would

seem that the respondent's condition was more likely to have been of the

thrombolytic kind, the trial Judge did not appear to have accepted that

evidence. Doctor Woollard had not examined the coronary arteries in the

angiogram. Doctor Cope had administered the angiogram before and after the

heart attack. Dr Cope's evidence had been clearly contrary to that of

Dr Woollard.

It was contended for the appellants that the learned trial Judge, having

come to the view that on the balance of probabilities the ECG would have

shown up an abnormality before the six hour period had passed, had to come to

the view, on the balance of probabilities, that it was more likely than not that

those drugs would have minimised the heart damage. It was said that

his Honour had not been satisfied of that fact and that was quite clear from his

judgment. It was also contended that the respondent had to show not only that

the test would have been abnormal on the ECG but also that he had a

thrombotic condition, the impact of which would have been minimised or

reduced by the administration of drugs. It was said that Dr Cope had

suggested that the appellant did not have a clot in his heart which caused the

heart attack. He might have just simply had a heart muscle spasm for which

the thrombotic drugs would have had no effect whatsoever. Consequently, it

had not been proved that the respondent had had a thrombosis on that day

which might have been alleviated to some degree by drugs. He could just have

had a heart spasm. The respondent should fail if all he could show was that the

disability or injury might have been caused by the defendants' wrongful act -

Lib No: 970069C


Tubemakers of Australia Limited v Fernandez (1976) 58 ALJR 720 per

Barwick CJ at 271, Gibbs J at 721 and Mason J at 742.

The relevant finding of the learned trial Judge was that by reason of the

second defendant's negligence the plaintiff had lost the chance of having his

heart muscle damage minimised or reduced by timely thrombolytic therapy.

Dr Woollard said:

"We believe that it's all complete usually within a matter of six totwelve hours, I guess is the answer, because that is when the clotdissolving drug doesn't appear to have any further value. So wehave learnt that from the use of these thrombolytic drugs. If yougive them after 12 hours, the benefits seem to be very modestindeed. That perhaps is to be modified for patients who arecontinuing to have chest pain and it's generally believed that if thepatient is continuing to have chest pain then it is likely that there iscontinuing damage occurring and there is a possibility ofpreventing some of that damage."

I interpolate here to say that it seems apparent that the plaintiff still had

a crushing pain in his chest when he saw Dr Esselmont, so on Dr Woollard's

evidence, damage would still have been occurring.

Doctor Cope said that in this case it was clear that there had been no

damage when the first ECG had been taken, as it was normal. There was no

way of knowing the precise time sequence of events after that. Dr Cope said:

"We know that cardiac enzymes which were subsequently taken, Ibelieve, at 10.00 or 10.30 that morning, were abnormal suggestingthere had been damage at that time. Certainly, his later coursesuggested that he had a significant myocardial infarction and thathe had suffered quite extensive damage to his left ventricle."

He went on to say that the ECG which was normal suggested that the damage

had occurred later than when it was taken. Doctor Cope said that the

respondent may have derived some benefit if thrombolytic treatment had been

given within four to six hours of the onset of his pain.

Professor Hamilton, in his certificate dated 15 February 1995, said:

Lib No: 970069C


"With hindsight it does seem plausible that an ECG later in themorning could have identified myocardial infarction. Subsequentevents, however, also indicate that the coronary arteries remainpatent and that the most likely cause of infarction was a spasm ofthe appropriate coronary vessels ... it is doubtful whetherthrombolytic therapy has any value in cases of spasm of vessels incontrast to occlusion of vessels by thrombis."

His Honour found that if the second defendant had administered a

second ECG upon the plaintiff at any time up until about 9.00am (that is, six

hours after the onset of chest pain) then, the chance increasing the later it was

administered, it seemed likely on the evidence that the ECG would have been

abnormal. Abnormality of the ECG would have been likely to have resulted in

swift administration of thrombolytic therapy which may have minimised or

reduced heart muscle damage. By reason of the second defendant's negligence

the plaintiff had lost a chance of having his heart muscle damage minimised or

reduced by timely thrombolytic therapy. He was accordingly of the view that

the second defendant's negligence caused damage to the plaintiff.

Counsel for the appellants conceded that Dr Woollard had said that it

would seem that the plaintiff's condition would be more likely to be of a

thrombolytic kind. However it was submitted that the trial Judge did not

appear to have accepted that evidence because Dr Woollard was not the

treating doctor at that time who had examined the coronary arteries of the

angiogram. That was done by Dr Cope, who had administered the angiogram

before and after the heart attack. Doctor Cope's evidence was clearly to the

contrary. It was said that from the above finding of his Honour, he had really

accepted that there was a conflict. He had not accepted Dr Woollard's

evidence on this point.

With respect to the cause of the myocardial infarction at the relevant

time, Dr Woollard had said that that would be pure speculation. With two

normal arteriograms both before and after the heart attack, the respondent was

Lib No: 970069C


a most unusual case. Doctor Woollard said that to suggest that a spasm had

blocked the artery temporarily and had caused a heart attack would be

speculation. He said that subsequent events:

"... perhaps suggest that would not be the case ... Subsequently, Iunderstand again from reports from other hospitals, that thepatient sustained a heart attack late last year and on that occasion,the coronary arteriogram showed a blockage due to the normallikely causes of clots on an atherosclerotic plaque ... I think, goingon the balance of probabilities, the fact that he has, some yearslater, developed clear cut evidence of atherosclerotic heartdisease, the usual form of heart disease, it would be a much morelogical presumption to assume that he had atherosclerotic heartdisease previously, but it simply had not been possible todemonstrate that on the coronary arteriogram and we know thatfact situation does occur."

Doctor Woollard said that in 1988 the aspirin, the Beta-blocking drug

and the thrombolytic drug agent for selected patients, were the three essential

components of treatment at that time. In 1988 many people quite reasonably

believed that it was up to about six hours after the onset of the symptoms that

the thrombolytic agents would be administered. The doctors believed that the

damage to the heart was all complete usually within a matter of six to twelve

hours after the onset of the attack, because that was when the clot dissolving

drug doesn't appear to have any further value. If the thrombolytic drugs are

administered after twelve hours the benefits seem to be very modest indeed.

That, perhaps, is to be modified for patients who are continuing to have chest

pain. It is generally believed that if the patient is continuing to have chest pain

then it is likely that there is continuing damage occurring and there is a

possibility of preventing some of that damage.

When dealing with the evidence in this case, the learned Judge said that

Dr Woollard was a specialist cardiologist of equal eminence to Dr Cope.

Doctor Woollard was far less certain about the question of whether it was

Lib No: 970069C


reasonable for the plaintiff to be discharged. His Honour said: "I was

impressed by Dr Woollard's demeanour in the witness box and he seemed to

me to be doing his very best to be objective." As stated above, a little further

on in his reasons the learned Judge said:

"In my view the plaintiff should have been given a second ECG onthe morning of 6 April 1988 prior to 9.00am. It appears to havebeen a well known fact on the evidence that it was not uncommonfor an initial early ECG of a person having a myocardial infarctionto be normal. With the continuation of symptoms another ECGought to have been administered. If the second defendant hadadministered a second ECG upon the plaintiff at any time up untilabout 9.00am (that is six hours after the onset of chest pain) then,the chance increasing the later it was administered, it seems likelyon the evidence that the ECG would have been abnormal.Abnormality of the ECG would be likely to have resulted in aswift administration of thrombolytic therapy which may haveminimised or reduced heart muscle damage. By reason of thesecond defendants negligence the plaintiff has lost the chance ofhaving his heart muscle damage minimised or reduced by timelythrombolytic therapy and I am accordingly of the view that thesecond defendant's negligence caused damage to the plaintiff."

In Sellers v Adelaide Petroleum NL (1944) 179 CLR 332 at 353,

Mason CJ, Dawson, Toohey and Gaudron JJ said:

"The distinction between proof of causation and damages wasemphasised in Hotson v East Berkshire Area Health Authority[1987] AC 750. There Lord Ackner stated that the first issue thatfell to be determined was that of causation. This was to bedetermined on the balance of probabilities. Once liability wasestablished, the assessment of the plaintiff's loss could proceed,taking into account any reductions arising from the uncertainty offuture events."

At 355 their Honours said:

"On the other hand, the general standard of proof in civil actionswill ordinarily govern the issue of causation and the issue whetherthe applicant has sustained loss or damage. Hence, the applicantmust prove on the balance of probabilities that he or she has

Lib No: 970069C


sustained some loss or damage. However, in a case such as thepresent, the applicant shows some loss or damage was sustainedby demonstrating that the contravening conduct caused the loss ofa commercial opportunity which had some value (not beingnegligible value), the value being ascertained by reference to thedegree of probabilities or possibilities."

In Bennett v Minister of Community Welfare (1992) 176 CLR 408 at

428, McHugh J said:

"Whether or not a cause or connection exists between a breach ofduty and any harm suffered by the person to whom the duty isowed is a question of fact to be decided on the balance ofprobabilities. The existence of the cause or connection is to bedetermined in accordance with common-sense notions ofcausation and not in accordance with any philosophical orscientific theory of causation or any modification or adaptation ofsuch a theory for legal purposes."

In this case, in my view, the respondent had to establish on the balance

of probabilities that the contravening conduct caused the loss of an opportunity

for treatment which had some value, that value being ascertained by reference

to the degree of probabilities or possibilities. His Honour found that the

respondent lost the chance of having his heart muscle damage minimised or

reduced by timely thrombolytic therapy. The respondent did not have to prove

on the balance of probabilities that the treatment would have been effective,

because in such a case as this that is too theoretical. Once it was established

that the respondent should have been given a second ECG, which was not

given to him, he had established on the balance of probabilities that he had lost

a valuable chance of getting some treatment which may have improved his

position. He had therefore suffered loss or damage. His Honour said that the

damage to the respondent's heart muscle:

" ... may have been reduced if there had been timely medicalattention. There is no evidence to assist me on the question of theextent to which the plaintiff suffered more disability than heotherwise would if there had been a late but correct diagnosis.

Lib No: 970069C


There is no certainty that the cause of the plaintiff's myocardialinfarction was a thrombosis that might have been relieved by thetimely administration of thrombolytic therapy. It is only in thatspecific circumstance that the plaintiff's heart muscle damage mayhave been reduced."

His Honour was entitled to come to that finding and he came to it after

a consideration of all the evidence. In my view it has not been established by

the appellants that that finding is wrong. The appeal by the first appellant

should therefore be dismissed.

The learned trial Judge awarded $2,000 for loss of expectancy of life

due to the damage to the heart. Doing the best he could, his Honour said he

found it difficult to see how the respondent could be entitled to anything more

than a modest award of damages for loss of enjoyment of life and for perhaps

having to suffer more pain during 6 April 1988 than he should have done.

His Honour assessed general damages in the sum of $10,000.

Doctor Woollard had given evidence that, on the presumption that the

respondent might at some stage have been appropriately treated with

thrombolytic therapy, the delay in treatment would have added a small

proportion to his reduced long-term life expectancy brought about by the heart

attack itself. Earlier treatment might have improved the heart: "Again, partly

back towards normal and he missed out on that possible improvement in his

life expectancy from early treatment."

With respect to the other $10,000, it was submitted for the appellants

that the respondent suffered much the same pain as would have occurred had

he remained in hospital so that the award of the $10,000 was quite plainly

excessive. Doctor Esselmont had told the respondent to take some more

disprin and go back to bed.

In answer to the appellants' submissions on the question of damages, it

was submitted for the respondent that the learned Judge's assessment of the

plaintiff's damages both with respect to loss of life expectancy and loss of

Lib No: 970069C


enjoyment of life was not excessive, bearing in mind the fact that the heart

muscles, if damaged, are irreparable. There had been an opportunity for the

respondent to have had that damage reduced or minimised by some timely

intervention which did not occur. As a consequence of that he has been left

with certain problems. His Honour had discussed those in his reasons and had

come to the conclusion that the respondent should only be entitled to a modest

award of damages for loss of enjoyment of life and for, perhaps, having to

suffer more pain during 6 April 1988 than he should have. He had assessed

those general damages in the sum of $10,000. It was a modest award.

I agree that the damages in the sum of $12,000 for loss of life

expectancy and loss of enjoyment of life was a modest award. In all the

circumstances, I do not think it should be disturbed. The appeal against

damages in my view should be dismissed.

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