Loustos v Krishna S267/2000 [2001] HCATrans 509 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S267 and S271 of 2000

B e t w e e n -

NOULA LOUSTOS

Applicant

and

VENKATA BOMAREDDY KRISHNA

Respondent

Applications for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 2001, AT 11.57 AM

Copyright in the High Court of Australia

MR M.S. JACOBS, QC: If it pleases your Honours, I appear together with my learned friend, MR P.J. BAMBAGIOTTI, for the applicant. (instructed by Xenos Jordan)

MR A.J. SULLIVAN, QC: May it please the Court, in each of those matters I appear for the respondent. (instructed by Yeldham & Associates)

GAUDRON J: Yes, Mr Jacobs.

MR JACOBS: Your Honours, this case concerns a very tragic set of circumstances where Mr Loustos undergoes what is obviously a routine operation on his neck and dies from hypoxia, once irreversible brain damage sets in.

Your Honours will have seen from the judgments of the Court of Appeal that the approach was to take his Honour Judge Goldring's judgment, and with no intention of sounding any note of disrespect, that judgment was de-constructed in regard to the times that his Honour Judge Goldring found. Once having de-constructed his Honour's judgment in regard to those times, they then went on and they came to the conclusion that there was insufficient time for Dr Krishna to have performed a tracheostomy, and on that basis they granted judgment in his favour, there was a verdict in his favour on appeal. Our primary submission is that there has been a failure of justice.

GAUDRON J: Tell me about an error of law or error of logic, if you would.

MR JACOBS: The error of logic, which is also, in our submission, an error of law, is that when the Court of Appeal de-constructed his Honour Judge Goldring's judgment they should have had regard to all of the evidence. All of the evidence was before them and it matters not, in my submission, that that evidence - - -

GAUDRON J: You say all of the evidence or all of the judge's findings, because there is a difference, is there not?

MR JACOBS: All of the evidence.

GAUDRON J: Why? The trial judge made specific findings, one of which was not controverted in the Court of Appeal, that is to say that effectively there had been respiratory arrest at the time when Dr Krishna arrived.

MR JACOBS: A minute or so before Dr Krishna entered the ward.

GAUDRON J: Yes. That is critical, is it not? That was a finding and it was not challenged.

MR JACOBS: It was challenged in an oblique way in a timing schedule that was placed before their Honours at the end of the submissions. Can I take your Honours to page 129 of the supplementary book. Your Honour will see that this is a timing schedule that was submitted to their Honours, either at the end of the oral submissions - or my learned friend will correct me - or shortly thereafter. Their Honours reserved judgment for five weeks. There was no challenge to anything that was said in this timing schedule. The second item says:

Sister Jones described that Dr Krishna continued to try and intubate Mr Loustos and at some stage during this process he stopped breathing.

So clearly before their Honours - before they gave judgment.

GAUDRON J: But there was evidence that there can be breathing notwithstanding respiratory arrest.

MR JACOBS: Yes, that was not referred to in - - -

GAUDRON J: That is the problem. That presumably is why the finding of respiratory arrest was not challenged.

MR JACOBS: Can I go to the anterior question where your Honour said "Should the Court of Appeal have looked at the evidence?", and I have said, "Yes", and your Honour then said, "Why?" The evidence that respiratory arrest can take place even though there is shallow breathing - and my learned friend will correct me if I am wrong - was not referred to by his Honour Judge Goldring in his judgment. Nevertheless, the Court of Appeal found that evidence. In finding that evidence they ignored entirely what Sister Jones had said in her evidence, as pointed out in the timing schedule, that respiratory arrest had not taken place until Dr Krishna was involved in the intubation process.

If that is correct, if Dr Krishna was bending over the patient attempting to intubate him and at that point of time there was respiratory arrest, cadit quaestio, there was sufficient time to perform the tracheostomy. But one must read that in conjunction with what Dr Vinen said, your Honour, because the Court of Appeal quotes substantial slabs of Dr Vinen's evidence not referred to by his Honour Judge Goldring. If I could just take your Honours to that. He said that respiratory arrest took place when the patient stopped breathing, when there was a complete cessation of breathing.

We then have other slabs of Dr Vinen's evidence quoted by the Court of Appeal, but what they do not do is as follows - and can I just summarise my basic submission to your Honours. What they do not do is this. They take other slabs of evidence, reconstruct the facts after having de-constructed his Honour's - - -

GAUDRON J: Would that not be precisely what you would be asking this Court to do too? One of your great difficulties in a case such as this is that you really, to succeed, as I understand it, seek an appellate court to make factual findings which are in significant respects different from both the findings of the trial judge and the Court of Appeal. You seek to have that done on the papers.

MR JACOBS: I seek to put that on a slightly different basis. I say that once the Court of Appeal was persuaded that his Honour Judge Goldring's reasons could not stand and your Honours will see they actually found two things in that regard. They found that he had not given sufficient or any reasons for a certain aspect of his holdings. If I could take your Honours to page 82 of the application book, from line 5 to 10, where the Court of Appeal says that:

Goldring DCJ did not give any reasons for his conclusion that the Appellant arrived within a minute of respiratory arrest. Specifically he gave no indication that any aspect of the evidence concerning Mr Loustos' physical condition enabled him to identify the time of entry of the Appellant with such a degree of precision.

Also, on the previous page his Honour the Chief Justice said at line 5 or 6:

It is not clear how his Honour came to a conclusion by which he referred to specific times.

Then he says - I am sorry I am going backwards - on page 80, lines 5 to 20, his Honour says there was an "inconsistency" in Goldring DCJ's judgment. Having regard to the inconsistency, no specific times found, the inability to give - or the lack of reasons for certain findings, they then refer to the evidence and make certain findings. My submission is that that is an error in approach and what should have happened was when they were faced with a timing schedule - and that was a clear indication to them that there was evidence that this man was still breathing - when they were faced with the evidence by Dr Vinen that respiratory arrest takes place only when there is a complete cessation of breathing - and I will give your Honours that - - -

GAUDRON J: But that was not the opinion of the other experts, was it?

MR JACOBS: No.

GAUDRON J: No.

MR JACOBS: But then they are faced with the conflict. They have not resolved that conflict. The error in approach of the Court of Appeal, in our submission, is that when faced with that position they cannot select that piece of Dr Vinen's evidence and ignore his evidence where he says respiratory arrest takes place when there is a complete cessation of breathing. They should have said there is a conflict and the matter must be remitted for the conflict to be - - -

GAUDRON J: Why?

CALLINAN J: Did two other doctors attempt intubation after the respondent attempted it?

MR JACOBS: Yes, about five minutes afterwards.

CALLINAN J: This doctor, the respondent, was pulled out of the operating theatre. He was a plastic surgeon. He was called upon to do something very quickly in a frightening situation. He did something and two other doctors did the same thing immediately after he attempted to do it.

MR JACOBS: Yes.

CALLINAN J: And you say he was negligent?

MR JACOBS: Your Honour, it is conceded that there was a duty of care. The sole question was whether there was a breach of the duty.

CALLINAN J: Yes, I know, but duty of care is not the end of the matter.

GAUDRON J: It is the content of the duty in this particular case.

MR JACOBS: May I take your Honours to page 21 of the application book where the very Dr Vinen whose evidence was accepted says at about line 25:

For this reason a person who has stopped breathing, or whose breathing is obstructed severely, may continue to have a pulse for a few minutes after effective breathing has stopped.

GAUDRON J: He seems to distinguish between breathing and effective breathing.

MR JACOBS: Yes. The passages that my learned friend has quoted to the effect that there was other evidence from Raftos, Cowling, et cetera, that there may be a distinction between breathing and effective breathing, are all predicated upon assumptions. If I could take your Honour to page 111 of the supplementary book. The evidence is predicated upon a complete obstruction. The evidence my learned friend relies on to say that there should be an alternative scenario is all predicated upon assumptions such as a complete obstruction, and this is clear from the passage which he actually quotes. Nevertheless, we have Dr Vinen who says that there is no respiratory arrest until such time as breathing actually stops.

Now, they were faced with that conflict. The Court of Appeal selects part of the evidence and ignores the rest. We say that that is an error principle. Faced with that conflict their obligation was to remit the matter so that the conflict could be resolved.

One must also remember that Sister Jones was considered by his Honour Goldring DCJ as a very impressive witness in all respects and upon whose evidence his Honour was prepared to place a great deal of weight. That finding was not challenged in the Court of Appeal. So we have the evidence of a witness whose evidence is accepted by his Honour at first instance saying that, "This is a witness upon whom I can rely", and he goes on further to say, "Her evidence was more likely to be accurate". Your Honours will find this at page 6 of the application book and also at pages 29 and 30. Perhaps I can just pause there for a minute. If your Honours will turn to page 6, line 10, his Honour Judge Goldring says:

As I shall indicate later, I found Sister Jones an extremely impressive witness in all respects, and put a great deal of weight on her evidence.

CALLINAN J: Is she the one whom he accepted because she had recently finished her nursing training?

MR JACOBS: Your Honour is perfectly correct.

CALLINAN J: So because she had recently finished her nursing training she necessarily knew more and was a better observer than a doctor of some 20 or 30 years standing? That was the proposition of his Honour, was it not?

MR JACOBS: His Honour's finding in that regard was not challenged.

CALLINAN J: I do not know about that because as I read the notice of appeal to the Court of Appeal factual findings were challenged. It simply became unnecessary, I thought, for the Court of Appeal to look at those findings because of the view that the Court of Appeal took - I may be wrong about that but that was my impression - such that it would be open, I would have thought, if special leave were granted, for the respondent to put on a notice of contention about the facts.

MR JACOBS: There was no notice of contention, I concede that. But our submission in that regard is that - - -

CALLINAN J: There might be if special leave were granted by the respondent here, there might be a notice of contention.

MR JACOBS: Yes. I am just reminded of the fact that not only did Sister Jones say that he was still breathing when Dr Krishna was bending over him - and I have given your Honours that reference - but she also said that she could see the obstruction and the swelling in his throat. That evidence was not referred to by the Court of Appeal at all. It does not appear as if the Court of Appeal considered the following or gave any consideration to the following evidence, nor did they attempt to reconcile that evidence with any of the other evidence. One, Sister Jones' evidence that the man was still breathing. Two, Dr Vinen's evidence to the effect that respiratory arrest means where the patient actually stops breathing. It is sufficiently important for me to take your Honours to that passage.

GAUDRON J: Does it mean that for everyone?

MR JACOBS: He made that as a general statement. He was cross-examined and he said - this is in the supplementary book. Can I just take your Honours to that? This is at page 17, and it does not appear to have been challenged. If your Honours will see at line 40, just about two lines before that, he says:

Well, the haematoma compressed the airway extrinsically from outside, resulting in the airway becoming inadequate for air oxygen transfer, leading to a respiratory arrest and that means where the patients actually stops breathing.

Nothing could be clearer. I have one more point to make. Can I make that very quickly, and that is in regard to the loss of a chance. Your Honour in Naxakis held that this did not apply to a past event such as this.

GAUDRON J: I do not see how it can apply to a Compensation to Relatives Act where the compensation is for death, not for loss of a chance of living, and I have some difficulties to see how it can apply in a nervous shock case.

MR JACOBS: The point is not finally determined. Your Honour Justice Callinan held that there was a qualified possibility of getting damages for a loss of a chance having regard to a percentage. If there was very little chance, then I think your Honour held in Naxakis, by way of an obiter judgment, that it was - - -

CALLINAN J: I think I was the only one who said anything to that effect in Naxakis.

MR JACOBS: Yes, I think 1 to 5 per cent your Honour said.....anything about that, well, perhaps. His Honour Chief Justice Gleeson left the point open; his Honour Justice Kirby left the point open; and I think his Honour Justice McHugh left the point open. Our submission is that this is of sufficient importance - - -

GAUDRON J: Yes, but how does it arise in this case? It might be important in a particular case, but your Compensation to Relatives Act cause of action is compensation for death, not loss of a chance.

MR JACOBS: Had this man not died - let us assume he had survived even with severe brain damage. The impact of that catastrophic event on the mind of Mrs Loustos could well have been completely different.

GAUDRON J: We are talking about the nervous shock claim, are we?

MR JACOBS: That is right.

GAUDRON J: Do I take it that your answer concedes that the issue could not arise under Lord Cairns' Act? It could not arise.

MR JACOBS: Yes.

GAUDRON J: So we are talking about it only in relation to I think it is S271 of 2000, is that right?

MR JACOBS: Yes.

GAUDRON J: What are the elements of nervous shock? Again, you see, the discussion in Naxakis is about compensation to the person affected on the basis that he or she lost a chance rather than suffered an injury. But we are in a different field of discourse here. The person who is seeking compensation was not injured, did not suffer a loss of a chance in any relevant sense, but is seeking compensation for something specific, and I would have thought the loss of chance argument just - I mean, apart from the point never having been taken below and no case ever having been conducted on that basis, I would have thought it just could not arise in these cases.

MR JACOBS: Our submission is that it does because the loss of a chance is the loss to have a husband alive or - - -

GAUDRON J: Excuse me, what is your damage?

MR JACOBS: The psychological damage which is measured - - -

GAUDRON J: Yes, all right. It has to be psychological damage arising out of?

MR JACOBS: The loss of the prospect of having her husband alive, or even brain damaged alive - - -

GAUDRON J: No. Tell me what are the elements of a cause of action for nervous shock.

MR JACOBS: It is the shock occasioned by somebody in close relationship with the person who has suffered the injury having observed or sustained that injury.

GAUDRON J: That is right, yes. Not by having suffered the loss of a chance. It is the point I am putting to you, that these cases just do not seem to permit even of an argument with respect to loss of chance.

MR JACOBS: Our submission is, your Honour, that it is sufficiently important for a definitive decision to be given on that aspect by this Court, if your Honours please.

GAUDRON J: Yes, thank you. We need not trouble you, Mr Sullivan.

The Court is of the opinion that the actual decision of the Court of Appeal in these matters was inevitable. Accordingly, although time will be extended for the bringing of application No S271 of 2000, both applications are dismissed.

Mr Sullivan, we are not minded to grant your application for indemnity costs.

MR SULLIVAN: If your Honour pleases.

GAUDRON J: The applications are dismissed with costs.

Now, I might just mention, there seems to be this growing practice of people coming along and asking for indemnity costs. We have to read it all all the more carefully when you do that. I mean, there should really be some careful attention to whether it is a proper case for it.

CALLINAN J: I said something about indemnity costs in a taxation matter recently to the effect that the cases in which indemnity costs should be granted will be exceedingly rare.

MR SULLIVAN: I do not wish to canvass what your Honour has said. On one aspect of it, particularly with the fact that we have had to put on three separate arguments because - - -

GAUDRON J: Yes. I appreciate that. I just wish to make the remarks more generally than direct it particularly to you.

MR SULLIVAN: Yes, your Honour.

GAUDRON J: There seems to be a growing trend now to make these applications and they ought not be made as of course.

CALLINAN J: They encourage extravagance I think, Mr Sullivan.

MR SULLIVAN: Flourish, your Honour.

GAUDRON J: Yes, thank you, Mr Sullivan.

AT 12.22 PM THE MATTERS WERE CONCLUDED