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Carver, Tracey --- "Medical negligence, causation and 'exceptional cases' under the civil liability legislation: Powney v Kerang & District Health [2014] VSCA 221 (11 September 2014)" [2015] PrecedentAULA 28; (2015) 127 Precedent 58


MEDICAL NEGLIGENCE, CAUSATION AND ‘EXCEPTIONAL CASES’ UNDER THE CIVIL LIABILITY LEGISLATION

Powney v Kerang and District Health [2014] VSCA 221 (11 September 2014)

By Tracey Carver

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities,[1] the claimant can prove that the defendant’s negligence was ‘a necessary condition of the occurrence of the [claimant’s] harm’.[2] Causation will then be satisfied by showing that the harm would not have occurred ‘but for’ the defendant’s breach of their duty of care.[3] However, in an exceptional or appropriate case,[4] sub-section 2 of the legislation provides that if the ‘but for’ test is not met, factual causation may instead be determined in accordance with other ‘established principles’. In such a case, ‘the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed’ on the negligent party.[5]

According to the Review of the Law of Negligence (Ipp Report),[6] the instances falling within sub-section 2 would include cases involving ‘evidentiary gaps’ such as Bonnington Castings v Wardlaw[7] and Fairchild v Glenhaven Funeral Services.[8] Such situations arise where two or more separate factors, or breaches, operate either cumulatively or individually in a way such that neither science nor medicine can determine their relative contribution to a claimant’s harm in a manner that satisfies the ‘but for’ test. Nevertheless, a sufficient causal connection is established by showing that the defendant’s wrongful act or omission has instead materially increased the risk of the harm occurring.

In Powney v Kerang and District Health, the Victorian Court of Appeal considered the application to negligence actions of the ‘evidentiary gap provision’ in s51(2) of the Wrongs Act 1958 (Vic).

FACTS

In August 2008, Mr Powney was admitted for nasal surgery to a hospital operated and controlled by the respondent. He experienced nasal pain post-surgery and was given an intramuscular injection of pethidine in his left arm. Following discharge from hospital the next day, Mr Powney ‘developed a severe infection in his left upper arm, which progressed to septicaemia with a significant abscess in the arm’.[9] The abscess ultimately required surgical drainage.

Mr Powney claimed that his pethidine injection had been performed through the use of an uncapped and unsterile needle, and that this negligent administration of the injection had caused his infection, leading him to sustain ‘significant permanent injury to his left arm with an associated psychiatric condition’.[10] He also alleged that prior to discharge, hospital staff had failed to act upon ‘complaints that he was suffering pain and symptoms in his left arm’ as a consequence of the infection.[11] The respondent, while accepting that the injection was the source of the infection, denied any negligence or that any such negligence had caused Mr Powney’s harm.[12]

DECISION AT FIRST INSTANCE

At trial[13] before a jury on the issue of causation, it was accepted that performance of the injection without negligence carried a small risk of infection. Nevertheless, Dr Hudson gave evidence for Mr Powney ‘that the risk of infection from an intramuscular injection would have been reduced if appropriate steps had been taken in [its] administration’.[14] However, upon cross-examination ‘[h]e accepted that he could not conclude that but for the failure to take precautions the infection would not have occurred’.[15] Dr Eisen, for the respondent, similarly concluded that:

‘if the injecting nurse used a needle which had been uncapped for a period of minutes, and which had been placed and transported in a kidney dish without a cap, the risk of infection would not be significantly increased ... it would take a period of months to years for an uncapped needle to become overtly contaminated.’[16]

However, the experts disagreed ‘as to the time required between the administration of the injection by which bacteria were inoculated into a patient’s body and the development of clinical manifestations of infection’.[17] This was relevant to the issue of whether any failure to address Mr Powney’s complaints was causative of his harm, in terms of whether, if addressed, it would have been possible to diagnose and treat the infection at that time.

Consequently, on the 9th day of the 12-day trial and at the conclusion of evidence, the appellant’s counsel submitted that if the jury considered the ‘but for’ test to be unsatisfied, it should be open for them to consider whether it was an appropriate case for the application of s51(2) of the Wrongs Act 1958 (Vic). This submission was stated to be ‘critically important’ on the ‘needle stick aspect’ of causation[18] and appears to have been made in an attempt to suggest, contrary to Amaca Pty Ltd v Booth,[19] that causation may be established on the basis of ‘expert evidence suggesting reasonable precautions which may reduce the risk of injury’.[20]

The trial judge rejected counsel’s submission and the jury returned a finding of no liability. The decision to confine the jury to a consideration of factual causation according to the ‘but for’ test under s51(1)(a) of the Wrongs Act 1958 (Vic), and to preclude the jury’s consideration of sub-section 2, was appealed as an error of law.[21]

DECISION ON APPEAL

While recognising that factual causation under s51(1)(a) was a question of fact for the jury (or judge sitting as the arbiter of fact),[22] in relation to the specific issue on appeal, the Victorian Court of Appeal (Osborn and Beach JJA and Forrest AJA) held that the trial judge was ‘correct in refusing to permit the jury to consider the requirements of s51(2)’.[23] A number of reasons were given for this decision.

Firstly, to engage sub-section 2, it is at the outset necessary to determine that factual causation under sub-section (1)(a) cannot be shown. However, in Powney, counsel ‘went to the jury on the basis that factual causation was established’.[24] Secondly, and reflective of the High Court in Adeels Palace Pty Ltd v Moubarak,[25] although the legislation does not define when a case will be exceptional or ‘appropriate’ for the purpose of sub-section 2,[26] it does specify that this is to be determined ‘in accordance with established principles’. Accordingly, whether or when the provision is relevant can be resolved only following ‘judicial scrutiny’[27] of the prior authority allowing departure from the ‘but for’ test; and the normative, or legal policy, issue of whether or not and why liability should be imposed. As such, it is a question of law for the judge, not the jury as the trier of fact. However, at no time in Powney had it been submitted that the trial judge resolve this issue.[28] Thirdly, the court also held that ‘there would have been a sound basis for the trial judge to reject’ the appellant’s submission on the application of sub-section 2 ‘on the basis that it was unheralded and made too late in the case’.[29] Their Honours further stated that if reliance is to be placed upon s51(2) ‘as providing the appropriate causal link between a negligent act and attributing responsibility for the alleged consequential harm to a defendant, the basis of the claim should be set out in the pleadings, or at the very least, raised as an issue at the commencement of the trial’.[30]

Finally, the court confirmed that sub-section 2 was not intended to apply as some sort of backup provision whenever a claimant cannot establish factual causation via conventional means. Rather, as supported by the Ipp Report, Parliamentary Debate[31] and Explanatory Memorandum:[32]

‘[the subsection] was designed to accommodate cases quite out of the ordinary – particularly those involving exposures to a particular agent on multiple occasions, all of which contributed to a disease process but factual causation could not be attributed to a specific exposure. Alternatively, it was to be employed where scientific evidence may be developing in identifying the level of exposure to a particular agent necessary to produce injury.’[33]

If otherwise available, it was therefore considered inappropriate, in accordance with established principles, to apply s51(2) to impose responsibility upon the respondent in circumstances such as those of Mr Powney – where there was ‘one alleged tortious act and no question of multiple causes or unknown aetiology of the alleged damage’.[34] Instead the case was regarded as amounting to a simple ‘failure to prove what was in truth a very weak case’ on the issue of factual causation.[35]

Despite this conclusion, the Court of Appeal’s decision does not conclusively determine the types of cases falling within sub-section 2 of the causation provisions enacted via Australia’s civil liability legislation. Indeed, the court considered it ‘inappropriate’ to engage in such a task.[36] It is therefore doubtless that this will be the subject of further litigation both in and outside the medical negligence area. Nevertheless, the case does confirm a cautious approach to the future application of the sub-section.

Tracey Carver (B Bus(Accy) (Dist), LLB (Hons) (QUT); LLM (Cantab)) is a senior lecturer and member of the Australian Centre for Health Law Research, Faculty of Law, Queensland University of Technology. PHONE (07) 3138 4341 EMAIL t.carver@qut.edu.au.


[1] Civil Liability Act 2002 (NSW) s5E; Civil Liability Act 2003 (Qld) s12; Wrongs Act 1958 (Vic) s52; Civil Liability Act 1936 (SA) s35; Civil Liability Act 2002 (WA) s5D; Civil Liability Act 2002 (Tas) s14; Civil Law (Wrongs) Act 2002 (ACT) s46.

[2] Civil Liability Act 2002 (NSW) s5D(1)(a); Civil Liability Act 2003 (Qld) s11(1)(a); Wrongs Act 1958 (Vic) s51(1)(a); Civil Liability Act 1936 (SA) s34(1)(a); Civil Liability Act 2002 (WA) s5C(1)(a); Civil Liability Act 2002 (Tas) s13(1)(a) (necessary ‘element’ of the occurrence of the harm); Civil Law (Wrongs) Act 2002 (ACT) s45 (1)(a) (necessary condition of the ‘happening’ of the harm).

[3] See, for example, Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375, 383.

[4] Rather than in ‘exceptional’ or ‘appropriate’ cases, s34(2) of the Civil Liability Act 1936 (SA) and s45(2) of the Civil Law (Wrongs) Act 2002 (ACT) apply where a claimant is ‘exposed to a similar risk of harm by a number of different persons’.

[5] Civil Liability Act 2002 (NSW) s5D(2). See also Civil Liability Act 2003 (Qld) s11(2); Wrongs Act 1958 (Vic) s51(2); Civil Liability Act 2002 (WA) s5C(2); Civil Liability Act 2002 (Tas) s13(2).

[6] David Andrew Ipp, Australian Treasury, Review of the Law of Negligence: Final Report (2002) 109-11. See also Strong v Woolworths Ltd (t/as Big W) [2012] HCA 5; (2012) 246 CLR 182, 193-4; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, 442-4; Powney v Kerang and District Health [2014] VSCA 221, [46]-[61], [81]-[83].

[7] [1956] UKHL 1; [1956] AC 613.

[8] [2002] UKHL 22; [2002] 3 All ER 305.

[9] [2014] VSCA 221, [12].

[10] Ibid [13].

[11] Ibid [15]. See also [4].

[12] Ibid [16].

[13] Powney v Kerang and District Health (unreported, County Court of Victoria, Judge Parish, 19 September 2013).

[14] [2014] VSCA 221, [27].

[15] Ibid.

[16] Ibid [28].

[17] Ibid [29].

[18] Ibid [33].

[19] [2011] HCA 53; (2011) 246 CL R 36, 53 (French CJ) (‘Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and the cause of the occurrence are quite different things’) referring to Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870, 898 (Kiefel J).

[20] [2014] VSCA 221, [98].

[21] Ibid [5]-[6], [41].

[22] Ibid [80]. See also [93].

[23] Ibid [7]. See also [84].

[24] Ibid [95]. See further [102]-[109].

[25] [2009] HCA 48; (2009) 239 CLR 420, 443.

[26] As mentioned at above note 4, an exception may be found in s34(2) of the Civil Liability Act 1936 (SA) and s45(2) of the Civil Law (Wrongs) Act 2002 (ACT).

[27] [2014] VSCA 221, [85]. See also [86]-[93].

[28] Ibid [94].

[29] Ibid [100].

[30] Ibid.

[31] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1427 (John Brumby).

[32] Explanatory Memorandum, Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic) 4-5.

[33] [2014] VSCA 221, [96]. See also [97].

[34] Ibid [99].

[35] Ibid [98].

[36] Ibid [99].


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