State of Queensland v The Estate of the Late Jennifer Leanne Masson [2019] HCATrans 233 (15 November 2019)

Last Updated: 15 November 2019

[2019] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B31 of 2019

B e t w e e n -

STATE OF QUEENSLAND

Applicant

and

THE ESTATE OF THE LATE JENNIFER LEANNE MASSON

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 NOVEMBER 2019, AT 10.05 AM

Copyright in the High Court of Australia
MR R.N. TRAVES, QC: May it please the Court, I appear with MR C.J. FITZPATRICK, for the applicant. (instructed by Crown Solicitor (Qld))

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR D.R. CAMPBELL, SC, and MR A.S. KATSIKALIS, for the respondent. (instructed by RMB Lawyers)

GAGELER J: Yes, Mr Traves.

MR TRAVES: Thank you, your Honour. Your Honours, the appeal court overturned some important factual findings of the trial judge, and we will come back to those. At the heart of this application lies the proposition adopted by the court below that the care given by an ambulance officer, even if it be in accordance with a reasonable body of medical opinion, is negligent if it does not comply with the officer’s clinical practice manual. That finding is at the application book, page 93, paragraph [163], and may we invite the Court to go there. The finding in the last four lines:

Had there been a body of medical opinion that adrenaline should not be used in a case such as this, and had Mr Peters been aware of it, and followed that opinion, where adrenaline was the indicated drug according to the CPM, that would have involved a failure to take reasonable care.

That reasoning is accompanied by observations which find that the training and experience of the ambulance officer is such as to be so limited to mean that an ambulance officer should not, effectively, in any circumstance, depart from the manual.

GAGELER J: Is that part of the dispositive reasoning of the court?

MR TRAVES: It was, in our submission, yes. His Honour found, in effect, that although the manual provided that the consideration was to be given to adrenaline, on its proper interpretation, it followed that, had consideration been given to it, it had to be administered, in effect. So, it was determinative. May we take the Court to the application book page 91, paragraph [149], the first four lines, and ask the Court to read those, and then the last three lines.

GAGELER J: Do you dispute the last three lines?

MR TRAVES: Yes, your Honour, yes. We would submit that an ambulance officer of necessity must from time to time bring to bear his or her own experience and judgment. And one of the difficulties with the cases presented by the Court of Appeal was in effect what should those circumstances be? Is it automatically a matter of following the manual, is it necessary on occasions to apply judgment, and where does that finish and start?

GAGELER J: Did the ambulance officer here apply independent judgment or purport to follow the ‑ ‑ ‑

MR TRAVES: Yes, he did.

NETTLE J: He gave extensive evidence about it, did he not?

MR TRAVES: There was extensive evidence about that, that he considered the – he arrived, as your Honours would know, late at night, at 11 o’clock, that Ms Masson was on the ground, presenting with respiratory arrest. She was in a state of extremis. He was faced with a decision at that point as to whether to administer adrenaline or something else. He determined to administer salbutamol, which is the same substance as one might use in a nebuliser for an asthmatic, on the basis that Ms Masson was both tachycardic, that is high blood rate – high pulse rate – and hypertensive, that is high blood pressure. And on that basis, at that point in time, he administered that. So, yes, he did.

GAGELER J: What is the point then being made in the last four lines of paragraph [151]?

MR TRAVES: The point being made is that an ambulance officer really is not in a position ‑ that is, not properly trained ‑ to make a choice, that the ambulance officer is bound, in the discharge of his duty to the person under his care, to apply the practice manual. And that we say gives rise to the question in accordance ‑ is that right, because in the particular circumstances of this case there was evidence, which the trial judge accepted, that the application of the salbutamol was in accordance with good medical practice or ‑ ‑ ‑

NETTLE J: If the Court of Appeal were correct that the trial judge was wrong in holding that the ambulance officer on the basis of his original statement believed that he had no choice but to avoid adrenaline, then you are left with your second proposition, are you not, that even if that were the case it was still not negligent because there is a respectable body of authority that salbutamol was equally efficacious in the circumstances?

MR TRAVES: That is correct. We say that question of importance arises whether or not the Court of Appeal factual finding that the manual was not followed is upheld.

NETTLE J: Because he believed he could not do anything else but go to salbutamol.

MR TRAVES: Yes.

NETTLE J: That is a fairly difficult holding or finding of the Court of Appeal over which to get, is it not?

MR TRAVES: Well, the factual finding is something we need to confront, and I will take your Honour to some of the references in that regard later. But we would say that it was an impermissible interference with the trial judge’s analysis of the evidence for the Court of Appeal so to find. The earlier statement of Mr Peters, the ambulance officer, was itself seven years after the event. His Honour directly questioned Mr Peters about his reasoning, and accepted having done so, that he considered whether or not to use adrenaline.

NETTLE J: So that is Fox v Percy, and then we have got the point about the respectable body of authority.

MR TRAVES: Correct.

GAGELER J: There seems to be a difficulty with this word “consider”. It seems to be being used in different senses.

MR TRAVES: Well, on reflecting on preparation for this case, if one asks a lawyer, is that a contract or not, one immediately is trained to say, well, it is for these reasons. Has one in that circumstance considered whether it is not a contract? And that, we submit, is a process which the trial judge understood in finding that he considered the use of adrenaline in the process of deciding to use salbutamol. And the mind is not so ‑ we would respectfully submit, the decision‑making process not so precise as to require, or even likely have in that circumstance, a deliberate consideration, as it were, now I must consider adrenaline as opposed to, in the circumstance of emergency that the ambulance officer faced, identifying the circumstances necessary in his view.

GAGELER J: At page 65, paragraph [24] there is a definition of “consider” in the manual. Do you say the evidence supports a finding that the ambulance officer considered adrenaline, in that sense?

MR TRAVES: Yes, it does. Yes.

NETTLE J: The trial judge found that it did.

MR TRAVES: Indeed, indeed. After careful consideration of the evidence found it did so. So we would submit that the ‑ in respect to the factual findings, we would submit this broadly, that the decision of the Court of Appeal in two important respects, the responsible body of a medical opinion, and whether or not there was consideration of the use of adrenaline, are not sufficiently clearly correct as to prevent a successful application in leave, if your Honours were to find otherwise that the leave questions raised by the standard of care to be applied, or that the content of the duty of care of an ambulance officer were of sufficient interest to justify the grant of leave.

NETTLE J: Do you still contend that if the correct view of the evidence was that, at the time of the incident, professional opinion was that adrenaline was the way to go, he is still not negligent because it can be seen, in light of subsequently formed opinions by the profession that salbutamol is equally efficacious? Is that still part of the argument?

MR TRAVES: We have not raised that at this point, no. I would need to consider that, your Honour, I am sorry. But the fundamental proposition is that there was a body of medical evidence in 2002 which justified the finding, and that the ‑ and bearing in mind, of course, that there were contrary findings in the court below, the trial court, that the findings of the Court of Appeal, we would submit, impermissibly interfere with the trial judge’s findings. But, in any event, they are not so clear as to stand in the way of a grant of leave on a point which, we say, is of general importance, and for lots of reasons, because an ambulance officer, in a circumstance of, well, a circumstance of emergency, it might be another circumstance, but ought be not totally bound, in effect, by the application of manual.

That is not to say he must not consider it, or that she must not consider it. And, of course, in the context of a suggestion that an officer has been negligent, it will be of importance. But what we do not want as a community, in our respectful submission, is an ambulance officer so obsessed with process that they are unable to bring to bear what is, in fact, significant training and often significant experience in the treatment of emergencies. So that is the point of importance, we say.

GAGELER J: All right, I think we follow that.

MR TRAVES: Thank you. Does your Honour wish us to address the factual matters? We are prepared to do so but our proposition remains in effect that there is enough there.

GAGELER J: Perhaps in reply.

MR TRAVES: Thank you.

GAGELER J: Mr Walker.

MR WALKER: Your Honours, factually and as to the issues both at trial and in the Court of Appeal, this was not a contest ever between a person in the position of the ambulance officer considering competing bodies of opinion among specialist medical practitioners, in relation to first or later resort to adrenaline or salbutamol. There was no evidence and no finding that the ambulance officer was a participant, and forming decisions concerning the rival merits of any such competing schools of medical specialist thought. That is the first point.

Secondly, your Honours perhaps will not be surprised to hear that the applicant did not conduct his case at trial or on appeal on the basis of discrediting or exploding the correctness of its own clinical practice manual. True, there is expert evidence about things having moved on, but none of that mattered, as my friend has perhaps frankly suggested today. None of that mattered because of the causation findings which were not challenged in the Court of Appeal, and have not sought to be challenged in this Court pursuant to special leave.

NETTLE J: But if there was divergence from the manual, but professional opinion were that what was done was appropriate, wherein lies the negligence?

MR WALKER: Your Honour is there talking about a later expression of view.

NETTLE J: If you like.

MR WALKER: Yes. The negligence lay in the combination of the finding of causation.

NETTLE J: What, post hoc, propter hoc?

MR WALKER: No, what we have here is a finding that, had there been the earlier administration of adrenaline than when it was actually administered ‑ and it was the lifesaver when it was administered.

NETTLE J: It was more likely that she would live. I follow that.

MR WALKER: And that finding must be a finding that treats, as between these parties, adrenaline at an earlier time, as superior to salbutamol. There is no post hoc, propter hoc there; salbutamol was persisted in to an unauthorised excess over maximum.

NETTLE J: Surely the question is not whether it would have been more efficacious, but whether it was negligent not to do it?

MR WALKER: Those are two questions, one informing the other. The first question does not determine the second, but it most informative of it.

NETTLE J: Well, it might be, or it might not.

MR WALKER: Well, bearing in mind that the protocol, the clinical practice manual, required consideration weighing up of pros and cons, not an a priori prohibition which is what this unfortunate officer actually ‑ ‑ ‑

NETTLE J: What the Court of Appeal held, yes.

MR WALKER: Yes. That is how he misunderstood the manual, which as your Honours will recall, that is the way in which the Court of Appeal reasoned at page 95, paragraph [151].

GAGELER J: Therein lay the negligence, said the Court of Appeal.

MR WALKER: Therein lay the negligence – a matter given substance – in answer to Justice Nettle’s questions to me – given substance to the finding at trial, not challenged below or sought to be challenged here, that had adrenaline, in accordance with the manual, been administered when it should have been administered according to the manual, then the harm would have been avoided.

Now, those are the findings. That, in our submission, means that it left only a question which was never really in play below, namely, should ambulance officers be regarded as being required, pursuant to the duty of care that they are discharging, to enter into a controversy which has presumably, if it existed, informed those who prepared the CPM for guidance of the ambulance officers.

We would have thought that if there were ever a case so framed, the answer is compellingly to the effect, no. But, this case was never framed in such an important way – that is, in a socially important way – as to whether the promulgation of protocols by medical experts for paramedical attendance at common law requires that there be liberty for the paramedical staff to differ from the consensus view promulgated for their official guidance by reference to rival schools of thought – rival schools of thought not by ambulance officers, but by medical specialists. It has no anchoring in fact in this case because there is no evidence that and there could be no finding that this ambulance officer was participating in some learned discourse involving opposite views by medical specialists.

NETTLE J: He was exercising his judgment as to whether adrenaline was appropriate or too risky.

MR WALKER: No, he was not. The findings by the trial judge do not go beyond the consideration by the ambulance officer that in the circumstances he found himself in, adrenaline was prohibited, not available. In other words, the word “consider” was not either in accordance with the face of the manual and its diagram or, according to the glossary to which attention is drawn in the Court of Appeal, page 65, paragraph [24], was not the process that this ambulance officer undertook.

He did not weigh up the merits and demerits of adrenaline. He closed adrenaline off. No doubt that explains why he administered so much more salbutamol than authorised to do. It was not working, keep going ‑ that is, not considering adrenaline. Now, the finding on causation is really conclusive of what the medical evidence suggests as to the superiority of adrenaline at that earlier stage.

NETTLE J: Mr Walker, at paragraph [148] of the trial judge’s reasons for judgment his Honour found that:

On a careful consideration of the whole of Mr Peters’ testimony [he was] satisfied he did make such a clinical assessment ‑

MR WALKER: Yes. And, in our submission, when one looks, for example, at the material excerpt at [145] that cannot be supported and was appropriately overturned in the Court of Appeal.

NETTLE J: That is the first point.

MR WALKER: Yes.

NETTLE J: If it were overturned – as it might be, arguably under a Fox v Percy analysis if the arguments presented by the applicant were correct – we would be then into the question of principle which is said is agitated by this application that whether an ambulance officer is entitled to exercise a degree of judgment in the circumstances he faced here.

MR WALKER: Can I make this clear. The CPM calls for judgment, the CPM is not mechanistic. The judgment I was referring to earlier was a judgment about a controversy, in which there might be rival schools of thought amongst specialists.

NETTLE J: I know you keep saying that, but what he did was, at least on the trial judge’s findings, exercise a choice between two medications. The question, subsequently, when the lady dies is, was that choice negligent? And that is surely to be answered by reference to responsible thinking within the profession.

MR WALKER: Well, it is responsible action by the ambulance officer.

NETTLE J: Yes, as to whether it was an appropriate thing to do, was it negligent or was it acceptable practice?

MR WALKER: Now, the protocol is something that he had to follow. If he did not follow the protocol then, in our submission, there is the negligence.

NETTLE J: I understand the point. That is what is put against you ‑ ‑ ‑

MR WALKER: Quite so.

NETTLE J: ‑ ‑ ‑ as being an error.

MR WALKER: Quite. The careful consideration of the evidence in the Court of Appeal required by the nature of that appeal emphasises that which, in our submission, should have been clear to the trial judge from what the trial judge excerpts, at [145], plus the other material to which the Court of Appeal draws attention ‑ ‑ ‑

NETTLE J: I do understand that point.

MR WALKER: ‑ ‑ ‑ namely, that there was not in fact a weighing up of adrenaline against salbutamol ‑ ‑ ‑

NETTLE J: I do understand, that ‑ ‑ ‑

MR WALKER: ‑ ‑ ‑ with an open mind as to adrenaline.

NETTLE J: ‑ ‑ ‑ you prefer the Court of Appeal’s findings to the trial judge’s ‑ ‑ ‑

MR WALKER: Yes.

NETTLE J: ‑ ‑ ‑ but if the trial judge is correct, and it is contended that there was not liberty to depart from his finding, then we face the issue.

MR WALKER: No, your Honour, [148], when referring to the ‑ to use the rather odd wording of his Honour, quote:

The fact that he considered the administration in the context of rejecting it –

in fact captures, in a slightly ambiguous fashion, the fact that his Honour has in fact pointed out, unwittingly or otherwise, in [145], namely that the only form of so‑called consideration was to say, I cannot use it. That means that there was not the weighing up that the manual called for, and there was certainly no participation in what I will call some medical science controversy. And it is for those reasons, in our submission, that some broader question as to the liberty or even requirement of ambulance officers to enter into medical controversy will never arise in this case. He simply did not. It will be, as it were, a fluke or coincidence if it turns out that his mistaken reading of the manual caused him not to do something which, a decade later, is thought perhaps not to be warranted.

And, by the way, there is no finding that that is the proper approach nowadays, there are only references to, as I say, the development of divergent views. This is not a case where the protocol was sought to be exposed after the event as an unjustified and unfortunate promulgation of a dangerous course of action. To the contrary, and the causation finding of this case rather cements that, practically speaking, in the contest between these parties about the conduct of that officer on that evening.

Now, your Honours, it is for those reasons that this case presents essentially nothing more than an inquiry into whether the Court of Appeal crossed the line of the proper performance of its function in an appeal by way of rehearing. For the reasons that we have written and that I have already touched upon, no, this was not the unjustified or unsubstantiated reversal of a finding of fact where the regard for the trial judge’s advantage should have precluded any such reversal.

This was attending to the way in which the witness had in fact presented his evidence, both in writing originally and later when taxed upon it where there was never any indication. The trial judge does not point to it and the Court of Appeal makes a note of this: there was never any indication that he was departing from the way in which he had put it in‑chief. And your Honours are familiar with the critical passage at page 74, paragraphs [61] to [65] in the Court of Appeal’s reasoning. The fact of the matter is that Mr Peters, unfortunately, misconstrued both where Ms Masson was in the scale of severity and misunderstood the proposition, or the question, whether adrenaline was available; that is permitted by the protocol.

Now, that is an approach by him which is quite at odds with his truly presenting for this Court the no doubt important issue whether, when there is such a protocol, albeit it calls for judgement from case to case, over and above that the officers required to follow that protocol are permitted to exercise what I will call unlicensed medical judgment. And, in our
submission, that is obviously of great social importance, just as what my friend raises is of social importance: should people be, as it were, process obsessed. And one would have thought, no, of course not. No one is suggesting there was process obsession here; there was an unfortunate mistake, in all good faith, by somebody trying to save somebody else’s life.

So, in our submission, this is a case where one can see in the far distance, in the offing, some matters of social import which never became concrete so as to be material in the issues for that trial and then considered in an appeal by way of rehearing in the conventional way that the Court of Appeal is required to conduct a careful review of the evidence.

And it is for those reasons, in our submission, that neither the interesting social issues are raised nor were they the subject of real issue below, nor is there any error of process in the Court of Appeal in reversing the critical finding as to whether or not within a sense or the meaning of the word “consider” it could be said that this unfortunate officer did consider adrenaline when he should have. It is for those reasons, in our submission, it is not an apt case for special leave.

GAGELER J: Thank you, Mr Walker.

There will be a grant of special leave to appeal in this matter. Is it a one‑day case, gentlemen?

MR TRAVES: Yes.

GAGELER J: The parties should obtain from the Registrar the set of directions that have been slightly modified to accommodate the Christmas break.

MR TRAVES: Thank you, your Honour.

AT 10.31 AM THE MATTER WAS CONCLUDED