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Sparks v Hobson [ 2018] HCATrans 191  (14 September 2018)

Last Updated: 19 September 2018

 [2018] HCATrans 191 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S77 of 2018

B e t w e e n -

CHRISTOPHER SPARKS

Applicant

and

BRENDAN HOBSON

Respondent

Application for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2018, AT 11.06 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friends, MS K.E. BURKE and MS Z.C. HEGER, for the applicant. (instructed by Avant Law)

MR P. MENZIES, QC: If your Honours please, I appear with my learned friend, MR R.J. DE MEYRICK, for the respondent. (instructed by Grieve Watson Kelly Lawyers)

BELL J: Yes, Mr Kirk.

MR KIRK: Your Honours, in our respectful submission, the legal issues which arise in the case, particularly those relating to section 5O and section 5I are fairly plainly apt for a grant of special leave and in relation to 5O we do not understand that my learned friends really dispute that there is an important issue of principle. Rather, what they say is it is not a suitable vehicle and it does not really arise on the facts. So, can I turn and deal directly with the facts?

BELL J: Do.

MR KIRK: The core issue was captured by Justice Basten and if I could take your Honours to page 153 in terms of what was found against my client at paragraphs 56 and 57. So, during the course of the operation - and I will take it as read that your Honours understand the nature of the operation - my client relied primarily on arterial blood pressure and oxygen saturation in the blood and until those fell below acceptable limits he allowed the surgery to continue. The challenge to his decision-making was that there was also a concern which he felt about carbon dioxide in the bloodstream; sometimes referred to as PCO₂, plasma CO₂, but he prioritised the other two matters. If your Honours turn over the page to 154, paragraph 58, there is a quote from the trial judge, paragraph [124]:

Mr Hobson submitted that a failure to consider factors beyond oxygen saturation and blood pressure was indicative of a standard of medical practice –

Now, as I will come to, there is no doubt that Dr Sparks did consider factors beyond those. That is in fact why he called up Dr Barratt at about 8.50 to seek some further advice but there is also no doubt that he was prioritising the other two factors.

Justice Basten, effectively in relation to negligence, upheld the trial judge’s view and your Honours will see that at page 159, paragraph 68 and his Honour said that the trial judge’s view – his “conclusion was sound”. Justice Macfarlan similarly upheld the trial judge’s view and offered two further reasons which I will come back to, but can I now jump to the trial judge’s reasoning and grapple directly with the reasoning by his Honour Justice Harrison?

Can I put that in context first - because the context is critical - by taking your Honours to page 64 of the application book, paragraph 142? Your Honours would recall that this – that there had been an operation on the 13 November, it was the first of a series of two. The second operation was planned for 10 days later but problems were arising with Mr Hobson. He was in the ICU and he was going downhill and, in particular, he was having problem maintaining blood oxygen levels. His left lung was not operating properly and he was getting pneumonia.

GORDON J: There is no dispute that the operation was required, is there now?

MR KIRK: No. There was at first instance but not now.

GORDON J: I understand, but not now.

MR KIRK: Correct. But it is important – the reason I am emphasising this is just to explain very much the context in which Dr Sparks’ decision to focus on those two factors rather than PCO₂ was made. So, if I could take your Honours briefly to page 68, paragraph 161, four lines from the end, Justice Harrison said:

I am satisfied that both Dr Gray –

That was the surgeon:

and Dr Sparks considered that there was a considerable risk that Mr Hobson might die if the surgery were not immediately performed.

If I can then go to his Honour the trial judge’s reasoning. If I can start at page 86 of the application book and focusing on this core issue, at paragraph 226 down the bottom his Honour says:

Fifthly, even if there was arguably no single unambiguous indication for stopping the surgery before the decision to do so was made, there were several factors which together certainly gave that indication.

His Honour then elaborates. If I could take your Honours to page 88, paragraph 230 there is a quote there from one of the reports of Dr Westbrook who was the anaesthetist expert called by Mr Hobson - - -

GORDON J: From England.

MR KIRK: From England, correct. He practices at the John Radcliffe in Oxford. Your Honours, could I draw attention to the first two sentences:

“A PCO₂ of 65 –

Pausing there, that was one of the readings which prompted the call to Dr Barratt:

is significantly above normal limits and well above that which was achieved on the ICU. The clear difficulties in achieving adequate ventilation due to this patient’s distorted anatomy and prone position were the cause of this inadequate ventilation . . . Therefore at the outset of this long and difficult operation the anaesthetist already had to use maximal ventilation and inspired oxygen concentration. This lack of reserve is reflected in the subsequent episodes of severe hypoxia and hypercarbia.

Now, we actually invoke that in support, in a sense, in that it illustrates that the problems with ventilation that were occurring during the operation were inherent in the nature of the distorted anatomy of Mr Hobson. He had a curved-over back and that compresses on the chest and he had the other particular issues that I have mentioned and so the fact that there were going to be problems was always the Rubicon to be crossed with this operation. Of course, the operation has to be performed prone, lying down on what they call a Jackson table, itself pressing on the chest and compressing the heart and the lungs. It was a very difficult and dangerous operation.

Now, at paragraph 231 it is recorded that Dr Westbrook ended up conceding that some particular episodes of problems with O₂ and low blood pressure were transient but 232 captures the - - -

GORDON J: Are they the two events where the cause of the unfavourable reading, in effect, had been identified and was relieved?

MR KIRK: Yes.

GORDON J: Yes.

MR KIRK: Then at 232, the nub of the disagreement in the end – by the end of the evidence was this point about whether it was reasonable for Dr Sparks to focus on blood pressure and oxygen in terms of continuing up until about 21.20 or 21.28 and he maintained it should have stopped at about 20.37. Now, what is then recorded is some key bits of evidence and it is a useful way of just pulling out the key evidence.

So, at 233, Dr Forrest, who was the anaesthetist expert my client called, indicated that blood pressure and oxygen were the routine ones and it was reasonable to continue to make further efforts to alleviate the plaintiff’s respiratory and metabolic acidosis. Now, acidosis is referring to, in effect, a side effect of the increase in PCO₂. It makes the blood somewhat more acidic.

Just to explain the significance of PCO₂ increase, it itself has that effect of being more acidic but that is not a particular problem because as other evidence shows that tends to fall away but it can be an indicator of poor ventilation and that was always going to be problematic here. It can also have a causative effect in terms of a sort of feedback mechanism with the body that itself increases for various reasons vascular resistance to blood flow. But Dr Forrest’s view was clearly that it was right to focus on those two factors.

Dr Manasiev referred to in 234 was the anaesthetist called by Dr Gray, the surgeon, and he also supported the decision of Dr Sparks. At 235 to 236, Dr Sparks’ evidence is referred to but can I take your Honours to a better version of that. If I can go to page 80 - your Honours might keep your finger, perhaps, on 89 and go back to 80 and there is an extract from cross-examination of my client and if your Honours look at about line 13, page 80:

then why did it stop ever?

Dr Sparks says:

I was having difficulties with the anaesthetic and I made a decision that whilst the systolic blood pressure and the oxygen were normal to high, I would continue. If that changed, then I was obliged to stop because it was impossible to continue. Those are the two things that you can’t – if they become abnormal, the oxygen or the low blood pressure, the patient will definitely suffer permanent damage. The other factors you can survive and get through and still have a normal outcome.

So that illustrates the point about the acidosis itself is not harmful. If your Honours jump to just above line 40:

Q. Well, why did you stop?

A. Well, I just said that when I agreed to do the – go ahead with the procedure, the risk of not going ahead -

interpolating there, likely death:

exceeded the risk of going ahead and at that moment when the blood pressure and the oxygen dropped, that changed. The risk of proceeding exceeded the risk of not proceeding.

Now, to explain that, the reason he actually stopped is at about 21.25 there was a fairly significant drop off in - - -

GORDON J: “Crash” it was described as.

MR KIRK: Yes, crash, in O₂ saturation and in blood pressure. In other words, his whole body was starting to shut down and there was first a warning to hurry up at about 21.25 and at 21.28, stop.

GORDON J: Can I ask you about what you have just taken us through in the context of the evidence that Dr Barratt gave which is set out - the entire transcript at pages 92 and 93 of the application book. Does that change what you have just put to us?

MR KIRK: Can I take your Honours to that and make some submissions about Dr Barratt’s evidence?

GORDON J: Especially the passage that appears at the top of 93 which is at the end of the examination by the judge.

MR KIRK: Yes. I was going to say Dr Harrison – Justice Harrison does a lot of medical negligence work in his practice as a judge. If I could start, your Honour, actually at paragraph 241, the first sentence:

In my opinion, the evidence of Dr Barratt is critical in this respect.

So, Dr Barratt was there called as a witness of fact, in effect, but he was also an anaesthetist in Royal North Shore Hospital. Then, if your Honours turn to page 91 and at about line 25 a question:

Q. Then you discussed his position –

So this is referring to the phone call at about 8.50 pm:

on the Jackson table and you suggested that if the breast plate of the Jackson table was pressing on Mr Hobson, the cardiac compression would generate potential for hypertension?

A. Yes, yes, it would.

Q. How does that occur?

A. If it’s pressing on the main arteries . . .

Q. If that occurs, what’s the downside risk of that occurring?

A. There might be critical organs which don’t get perfused adequately.

Now, that illustrates that this was inherent to the operation. If your Honours then jump to about the last 10 lines:

Q. So your response was that probably, or maybe, a pulmonary artery was compressed along with possible cardiac compressions . . .

A. That is exactly correct.

Then, if your Honours turn over the page, and this is the portion, I think, your Honour Justice Gordon was referring to – at the top:

Q. And the consequence of that is what?

A. A carbon dioxide level of 65 is not a problem physiologically –

That supports the point I made earlier:

but for that to happen, you have to be pressing on a pulmonary artery in such a significant way that it’s going to impede cardiac output and organ perfusion.

Q. And the consequence of that is what?

. . .

Q. If uncorrected?

A. Critical end organ ischemia -

meaning:

End organ perfusion –

that is the blood supply coming to the organ bringing oxygen:

or inadequate perfusion to an organ, damage, organ damage.

Q. And the consequence of that in a longer term sense if these organs are damaged was what?

Well, it could damage various organs. So there is no doubt that all these things could occur and ultimately what did occur, of course, was damage to the spinal cord but, as I have sought to show, even by reference to Dr Barratt’s evidence, that was intrinsic. But then if you can come to page 93 and this last - - -

GORDON J: It is really the last little bit, is it not?

MR KIRK: Yes, absolutely. The question was:

Q. Then in those circumstances, it really wasn’t appropriate, was it, to look at the blood pressure and blood oxygen levels alone when making a decision whether to persist or abandon surgery?

A. I agree with that statement.”

Now, can we say a couple of things about that? First, looking at blood pressure and blood oxygen alone was not what Dr Sparks was doing. He was attempting a whole range of other things including calling Dr Barratt and there is a description at page 20 of what he did. He got down on the floor at various points to check ventilation and to look at the procedure. He administered a drug called, I think, vecuronium at a particular stage.

GORDON J: That itself was a critical issue because that stopped the spinal monitoring.

MR KIRK: That is true. That was held not to be negligent in the end.

BELL J: We are getting very deep into the facts. I wonder if I can just take you - your first point is the construction of 5O. Now, as I understand it, Justice Basten considered he was not bound by McKenna, so applying common law considerations – I am sorry, so I think Justice Basten was prepared to accept that 5O is not – does not require a particular practice and had Justice Simpson not felt constrained, her Honour would have taken the same approach.

MR KIRK: Correct.

BELL J: The difficulty lies, does it not, in the circumstance that Justice Basten, not feeling constrained by McKenna, nonetheless considered your evidence fell short. So I just think it would be useful to direct attention to that, if you would, Mr Kirk.

MR KIRK: Yes, certainly.

GORDON J: I think it is summarised at application book 161 at paragraph 75 where his Honour, in effect, sets out his two grave concerns about the way in which the case was conducted.

MR KIRK: Yes, mainly by the plaintiff, described as an immoveable feast, I think – a moving target for my client. But can I grapple with the point raised? The first and simpler answer is to say that conversely Justice Simpson in, with respect, a strong dissenting judgment, in what might be said to be obiter because she considered herself bound by McKenna, thought it was a pretty clear case for application of section 5O and she pointed out that, as your Honour Justice Gordon noted, Dr Westbrook was not an Australian practitioner - section 5O focuses on that - and never actually expressed a view in terms of section 5O. But then can I grapple more deeply with what Justice Basten said?

BELL J: Yes.

MR KIRK: So, his analysis continues from page 161 and he has various quotes from the evidence, particularly of Dr Forrest. If I could then go to page 164, paragraph 82, first sentence, his Honour says:

The submission that Dr Forrest’s views were not challenged was only partly true -

which is perhaps damning with faint praise, and then referred to some evidence, referred to some questions and answers and then paragraph 83, first sentence, said:

Neither the questions nor the answers given by the witness were entirely clear.

Then five lines into that paragraph 83, his Honour said “That” – that is, section 5O:

required taking into account the need for the corrective surgery, and the deterioration in the patient’s condition as at about 9pm, given the expectation that it would be relieved by ceasing the operation and returning the patient to the supine position. To the extent that the evidence did address that proposition, it is by no means clear that Dr Forrest expressed a clear view about it.

Now, insofar as that is a criticism about not addressing 9.00 pm specifically, that had not been pleaded, it was where Justice Harrison landed on but Forrest and Manasiev and, of course, Sparks said it was proper and standard and competent practice to go till 9.28 pm or so. So, the greater encompasses the lesser.

Insofar as it is a criticism that it was not sufficiently grappled with - and that point is made also, I think, at paragraph 88 on page 167. His Honour says in the third line it was a “bald statement by a practitioner” – in our respectful submission that is not a fair characterisation of the evidence because even just going through the evidence quoted by Justice Basten - and I do not have time to do so at length - Dr Forrest was expressing the conclusion that it was legitimate to go till 9.28 pm or so.

An explanation of the emergency nature of the operation, an explanation of the fact that the risks were connected with the nature of the operation because of the pressing down on the heart and so forth, combined with the inherent problems that Mr Hobson suffered from, combined also with – and, of course, all the evidence has to be seen in light of the cross-examination. Your Honours would know that often doctors’ reports tend to be fairly brief, try to get them to be expressed in terms that the law expects is not easy and so they put in brief reports but then there is a joint report process and extensive oral evidence, so one also has to see the conclusions in light of the oral evidence.

So, to give your Honours a little bit of the flavour of that, if your Honours go to – well, for example, page 306 in the application book at lines 25 to 30 in relation to the PCO₂ issue, Dr Forrest said:

Well, yes there is because there’s no absolute value at which you would say, “This surgery must stop . . . The thing that you would be relying on would be the patient’s blood pressure, their heart rate, the level of systemic oxygenation and whether they’re requiring any other support.

Dr Westbrook never identified any point of PCO₂ where you had to stop save that his initial position was that the operation should not have been conducted or, alternatively, that it should not have gone past 8.37 pm.

BELL J: Mr Kirk, before we dig down any deeper into the medical evidence, is this a difficulty for you? You say 5O plainly raises an issue suitable for the grant of special leave and I do not understand Mr Menzies to suggest the contrary but here you have two members of the Court expressing severe reservations about the McKenna test and in terms of the close factual analysis coming to different conclusions as to the merits.

In the way the case was conducted, as I understand it, there was no reliance, I think, from the respondent in terms of the way the submissions were put on 5O. I understand that it was raised by your client in written submissions before the primary judge but then as a defence, which is not the argument that you seek to put, and we have no analysis by the intermediate court about it. So, what – the grant of special leave would involve this Court poring over considerations of the medical evidence concerning each of the five parameters?

MR KIRK: I know the time, your Honour, but if I can just be one minute to answer your Honour’s question.

BELL J: Yes, do.

MR KIRK: Thank you. First, inevitably in something like medical negligence the facts throw light on the law and so there is always a need to go through facts to some extent. Her Honour Justice Simpson’s dissent was strong. It is true it was raised a defence but that is the way it has tended to be seen in New South Wales and that is one of the reasons special leave is important because it tends to have been seen as a defence and Justice Basten said, well, that is not the right way to see it, it interlinks with the standard of care, which is what we say. A trial judge now will be probably still bound by McKenna because, given the position of Justice Simpson and Justice Macfarlan, McKenna will still be seen to prevail, at least arguably.

GORDON J: I think the point is more specific than that and that is having regard to the way in which this trial was conducted - and it is not a criticism, it is just a fact of life, I think anyone who is now running one of these matters will know that they have to address particular things whether it is the McKenna approach or the view adopted by Justices Basten and Simpson. I mean, both of them expressed serious concerns about the way in which questions were asked, what was adduced, what was not adduced, whether you need to establish a practice or not a practice.

MR KIRK: Yes, in relation to the criticisms of the questions asked, to be fair, that was mainly directed to the plaintiff’s side of the case, not to the respondent’s side of the case.

GORDON J: It is also about the evidence adduced in terms of - directed to the 5O issues, to put them in neutral terms.

MR KIRK: In relation to the point your Honour raises about what a trial judge might now do, the effect of that is where there are very clear issues about 5O and also 5I which I have barely touched on - and 5I, we say, is applicable here because it was an inherent risk in the way I have sought to explain - is that first there is going to be a state of uncertainty for two years or so, two or three years until a matter works its way up to this Court to be resolved where there is a perfect, sort of, factual substratum.

Secondly, that is going to require cases where these things arise to have everyone running every permutation on the theme, the McKenna permutation, the non-McKenna permutation with a view potentially to coming to the High Court. The facts here are not overly complex. It is a one-day matter, in our respectful submission. It took about a day and half in the Court of Appeal but Dr Gray pushed into a second day, I think. So it

could and will be dealt with appropriately by this Court and that the uncertainty should be brought to an end. If it please the Court.

BELL J: Thank you, Mr Kirk. Yes, Mr Menzies.

MR MENZIES: Your Honour, in particular response to my learned friend, he referred to Justices Basten and Macfarlan agreeing with the proposition that it was okay to go to 9.28. That is not what they found. Your Honours will find the references to Justice Basten at application book 202 to 203, paragraph 83, and to Justice Macfarlan at paragraph 84 – I am sorry, yes, he asserted Forrest and Manasiev said it was okay to go to 9.28 and that is not the evidence. That is not what is found in the judgments of Justice Basten and Justice Macfarlan. But that is an aside.

I do not resile from the proposition that the plaintiff’s case was a moveable feast nor that there is some implied criticism in it. It does not matter except I have been criticised. This was a case where the evidence - where it was cited, I hasten to say not by me - with five defendants and evidence brought in and during the course of the trial or immediately before it further evidence came along. It is not for our part to continue to try and kick along the road a case that is not going anywhere, obviously. It is contrary to my obligations and also contrary to trying to resolve the matter as efficiently as possible.

So, inasmuch as there were comments made in the reports which were no more than a ritual incantation of the words of the statute, not for the plaintiff to be concerned about that other than well, is that enough evidence to support the proposition – if it is entirely unsupported with any particularity then as the plaintiff submitted to the trial judge, as the trial judge accepted, as did the judges of appeal, on the facts the evidence just did not get there.

BELL J: Well, if one looks at Justice Simpson’s analysis, there was Dr Forrest and Dr Manasiev, both of whom accepted that Dr Sparks’ anaesthetic management of your client was conducted in a way widely accepted in Australia by peer professional opinion as competent professional practice. In that respect, those opinions were not challenged.

Now, it seems to come down to an issue as between the analysis that Justice Simpson made of the evidence and Justice Basten’s that, as I read Justice Basten, it was necessary to look with somewhat greater particularity to what proper professional practice required at whatever time it was – was it 9 o’clock or - - -

MR MENZIES: It boils down to a degree of generality at any particular time. Now, there was no issue ever taken – it was taken but ultimately abandoned, there was no issue that the process, that is, two-stage surgery, first stage with the patient supine, a few weeks for the patient to rest, then second stage dealt with prone, that was accepted as competent professional practice in a general sense. There is no issue about that. I do not think there ever was.

BELL J: But it went further than that.

MR MENZIES: Yes.

BELL J: Dr Forrest’s opinion was an opinion based, as I understand it, on the whole of the course of anaesthetic management. To the extent that there is a criticism of the conduct of the applicant’s case it was that Dr Forrest’s opinion was not directed to the precise period of time that the judge ultimately determined on the basis of his Honour’s assessment of the evidence as the time when the operation should have been stopped.

MR MENZIES: It does not really matter who should have directed the doctor’s attention to those issues. The doctor’s attention was not directed to those issues. Therefore, there is insufficient evidence to support the proposition.

GORDON J: Just to test that, can I ask you to go to application book 232 to 233 which sets out Justice Simpson’s analysis of Dr Forrest’s evidence?

MR MENZIES: Yes. Remember, of course, two things – one is that Justice Simpson was in dissent and, secondly, that her basal proposition was that she did not accept McKenna but felt obliged to do so on the then present state.

GORDON J: I accept that. I would just like you to look at and understand what it is about Dr Forrest’s evidence that you complain about in the sense of why you say it does not get to the requisite standard, whether it is the McKenna standard or some other standard which is propounded by Justices Basten and Simpson.

Here, you have questions asked where the evidence is given by Dr Forrest which, as I understand it, explains that the steps taken by Dr Sparks were appropriate; section 5O opinions asked – set out in paragraph 294 giving rise again to a positive answer – “Appropriate, appropriate, appropriate”, therefore, widely accepted. Is that your complaint - that is that what is given in answer to that question is inappropriate or is insufficient?

MR MENZIES: My answer to that complaint is it is not consistent with other evidence and it was a matter initially for the trial judge to decide which evidence the trial judge accepted or rejected and it was open to him.

BELL J: But the trial judge did not purport to be determining that critical question by reference to the construction of section 5O for which the applicant contends. Indeed, I think his Honour did not purport to be applying 5O. But on the analysis for which the applicant contends, why is it not right that the opinions expressed by Dr Forrest and Dr Manasiev sufficed?

MR MENZIES: Because the contrary position was explained by Justice Basten and Justice Macfarlan in a fair amount of detail and the point was that they did not address the specific issue. But let it be assumed they did, let it be assumed that those doctors did. It still remains a question of fact open to be accepted or rejected. Once it is accepted, unless one is in Fox v Percy territory, that is the end of it.

BELL J: As I understand it, 5O was raised by the applicant in the applicant’s submissions before the primary judge.

MR MENZIES: Yes.

BELL J: But in the event, the matter was determined without reference to it.

MR MENZIES: The trial judge dealt with 5O.

BELL J: By applying it - - -

MR MENZIES: The curious thing that occurred – the more curious thing that occurred was that the applicant before the trial judge said McKenna was wrong and that it should not be followed. That became the subject then on appeal. Although section 5O was raised, McKenna was not specifically a ground of appeal. Now, this issue could have been simply solved at that point and the appellant chose not to do it, that is - - -

GORDON J: They raised it in their oral submissions, did they not, so it was not the subject of a - - -

MR MENZIES: No.

GORDON J: Justice Simpson sets this out and explains that it was not and, therefore, if it could have been raised earlier there may have been a reconstitution of the panel.

MR MENZIES: Had it been raised earlier - I mean, what should have happened to deal with this issue and would have solved it at that point is that the applicant should have applied – should have sought, under the rules, that a five member court be constituted and then that issue could have been dealt with then and section 75A of the Supreme Court Act could have been applied for the purpose of getting into evidence – fresh or further evidence. It would have been resolved then. It is inappropriate now, having not taken that course, to come up here and say, well, you fix it, when it is entirely unnecessary.

BELL J: Can you just point me to where the trial judge dealt with section 5O and the approach that he took?

MR KIRK: Pages 97 to 99.

BELL J: Thank you.

MR MENZIES: He sets the section out and then at 259 he repeats what he has already said about Dr - - -

GORDON J: About Dr Manasiev and Dr Forrest.

MR MENZIES: Yes, effectively. So, he did not ignore it.

BELL J: It is not entirely clear whether his Honour saw the evidence of Drs Manasiev and Forrest as failing on a McKenna application of 5O or not?

MR MENZIES: He does not deal with it, with respect, on a McKenna application as I understood it. If your Honours go to page 87 at paragraph 226 - or 225 and 226 is where he deals with the timeframe issue and he says, effectively, at 226, well, if you take a number of factors into consideration then plainly there was a breach of duty in not considering these other matters. You see - - -

BELL J: That is his Honour taking a view of the evidence as his Honour saw it as distinct from determining that the standard is the standard set, not under 5B but under 5O, and then looking to the evidence of Dr Forrest and Dr Manasiev and anything that stood against - - -

MR MENZIES: Well, if one looks at it in that context, let it be assumed that he proceeds under 5O – Justice Basten must be correct, one cannot have two standards.

BELL J: Indeed.

MR MENZIES: So, his Honour considers it and in the light of his findings concerning this – the looming catastrophe - and it must be borne in mind that the evidence fairly plainly set out that from the time – that even at the time when Dr Barratt was consulted, sure, there was a problem occurring. But Dr Barratt makes plain that one just cannot sit around forever in an expected sense, that is, well, hopefully something will turn up and the problem will be solved and that is where the trial judge’s judgment and - - -

BELL J: Mr Menzies, I see now at page 99 of the application book, paragraph 258, it is quite clear that the primary judge approached the matter on the basis that the applicant bore the onus of establishing a defence under 5O. Now, if the applicant’s argument were successful, that would be plainly the wrong approach to have adopted, albeit the complicating factor is, as I understand it, the applicant was not advancing the construction of 5O before the primary judge for which he now contends.

MR MENZIES: I accept that. Now, can I just deal with the way forward? If, as my learned friend now has it, that this is a matter of significance bearing on – I need to deal with two things: first, McKenna. McKenna is not authority for anything. I do not think there is any issue about that so when the Supreme Court judge in New South Wales – this issue was raised in front of him, one would hope it would be pretty plainly put whoever is concerned about it, that one does not follow McKenna because it is not authority, so the issue about a problem caused by McKenna is a furphy - forget about it.

The other matter is this, that if the – despite what the applicant said in a letter to the Court a few days ago that this is really just a piece of litigation between two parties and, therefore, no special costs orders are required which, of itself, rather runs against the proposition that there are special leave points here, but if, contrary to our submissions, your Honours grant leave then we would seek the not uncommon order that all the costs below be preserved regardless of the outcome and that the costs of the appeal be costs in favour of the respondent regardless of the outcome. Those are my submissions, if your Honours please.

BELL J: Thank you, Mr Menzies. Mr Kirk, just looking at the primary judge at paragraph 258, his Honour approaches it on the basis that it was incumbent on your client to establish a defence under 5O and that, as I apprehend it from something, I think, in either Justice Simpson or Justice Basten’s reasons, is the position that was adopted by your client in his written submissions.

MR KIRK: Well, I am not sure, to put it this way, from what I understand the contrary was put, namely, that it was not a defence but that was, of course, reflecting the approach taken in New South Wales conventionally at the time and that is reflected in what Justice Basten said at page 159, paragraph 69. If your Honour looks at that paragraph 69, page 159, his Honour said the proper course is to treat it as part of the standard of care:

The trial judge did not take that approach but rather, in accordance with what was understood to be the appropriate course at the time, considered s 5O as a defence –

That problem will affect all such cases until the law is clarified. Now, my friend is obviously not right, with respect, to say that the McKenna point is a furphy. Insofar as there is a ratio of this case in relation to McKenna it is that McKenna is to be followed albeit with reluctance by Justice Simpson.

To then come back to the core of the 5O point, if I could take your Honours briefly to page 167 in his Honour Justice Basten’s decision, and this, in a way, illustrates that - and this is also a further answer to your Honour’s question in a way. His Honour Justice Basten at paragraph 89, for example, says:

That is not to say that any of the evidence was “irrational”.

As your Honours know, his Honour had been through Manasiev and Forrest. His Honour did not rely there on Westbrook because Westbrook did not address the issue. There was no countervailing evidence of competing practice or professional judgment.

GORDON J: Well, he could not rely on Westbrook because Westbrook was from England.

MR KIRK: Exactly, there was no countervailing evidence. So, implicit - - -

GORDON J: You have to deal with 85 and 86, do you not, whereas I thought the way Justice Basten dealt with it was to explain that they just did not address the critical issue?

MR KIRK: In our respectful submission, that is not right because the critical issue was the one I started with which was prioritising - - -

GORDON J: I accept that is your position but you have Justice Basten, at least, saying from his perspective - it comes back to the point raised by the presiding Judge with you, we are in the facts rather than in the principle, are we not?

MR KIRK: But even as I started with, his Honour Justice Basten identified the core issue as that one, namely, prioritising O2 and blood pressure, that is pages 153 to 154 over PCO₂. That was the core dispute, the core finding of negligence against my client by the primary judge. To draw all of those points together, in a sense, if I could take your Honours to page 101 and this is also a response to what my friend said about, well, you cannot sit around forever. In the culmination of Justice Harrison’s reasoning at paragraph 267, last five lines, his Honour said:

They –

that is Gray and Sparks:

failed at the very least to provide a proper standard of care by not immediately terminating the operation after the completion of Dr Sparks’ telephone call with Dr Barratt in the face of the abnormalities shown on the anaesthetic record and with Mr Hobson evidently in uncorrectable respiratory and cardiovascular difficulties for as long as he remained in the prone position.

Just to drive that point home - - -

GORDON J: You are talking about retrospectivity.

MR KIRK: Yes, but also that the problem could only be solved by turning him over and that point is made clear at 269 down the bottom, his Honour says:

I repeat and specifically accept what Dr Askin had to say –

and quotes from Askin and then if you look – if your Honours look at the second quoted paragraph, third line:

MEP monitoring –

that is the spine monitoring:

in this case would not have allowed remedial action given that the only remedial action that allowed the patient to restore blood pressure and PCO₂ was to turn the patient supine -

i.e. to end the operation. So that is the nub of it. It comes back, in a way, to the inherent risk point. The section 5I point, in a way, is the simplest way home for us to say this risk was always there. The only way to avoid the risk, as Justice Harrison found, was to end the procedure where the risk was

always there and that point is at the heart of the case and it is ultimately a very simple one. May it please the Court.

BELL J: The Court will adjourn briefly to consider the matter.

AT 11.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.56 AM:

BELL J: In our opinion, given the conduct of the proceedings below, the application is not a suitable vehicle in which to consider the issues of construction that are raised. Special leave is refused with costs.

Adjourn the Court to 10.00 am on Tuesday, 9 October in Canberra.

AT 11.56 AM THE MATTER WAS CONCLUDED