Lib No: 970069C

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CORAM : MALCOLM CJ
ROWLAND J
WALLWORK J

HEARD : 13 JUNE 1996

DELIVERED : 26 FEBRUARY 1997

FILE NO/S : APPEAL FUL 130 of 1995

BETWEEN : THE BOARD OF MANAGEMENT OF ROYAL

PERTH HOSPITAL
First Appellant (First Defendant)

JANE MARGARET WHITAKER

Second Appellant (Second Defendant)

AND

JAMES SELWYN FROST

Respondent (Plaintiff)

Representation:

Counsel:
Appellants : Ms J H Smith
Respondent : Mr P A Monaco

Solicitors:
Appellants : State Crown Solicitor
Respondent : Godfrey Virtue & Co

Library Number : 970069C

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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.

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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

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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 I

think I may well have admitted him to hospital despite the other
findings mentioned above. It may be unreasonable to expect the

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staff in the accident and emergency department to have the same

level of suspicion as a cardiologist."
He went on to say:

"On the basis of probabilities I think I would have to agree that it

was really very unlikely that this represented a heart attack and
therefore it was reasonable for a resident at that level to have not
made 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 would
be classed as reasonable. It certainly was not ideal but I don't
believe it fell outside the grounds of what was reasonable ... We
only had the one [ECG] at 4.05 and if there had been one done at
7.00am - I hope I'm allowed to speculate there - but its much more
likely 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 individual

patient and particularly with their knowledge of the normal
coronary arteriogram I think that it would fall within the
parameters of reasonableness, the limits of reasonableness."
He later went on to say:

"... and my own view is that I wouldn't find it unreasonable for

somebody to have discharged him. I would not regard it as ideal
treatment 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 of

infarction of that part of the heart not covered by the ECG. It is
possible 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 an

ECG because one usually hasn't been done before and I
automatically do blood tests as well and preferably I like to see
the patient later on to do another ECG and to follow up blood
tests."

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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 that

the doctor must exercise reasonable care and skill in his treatment
of him: and that is so whether the doctor is paid for his services
or not. But if the doctor is unable to treat the man himself and
sends him to hospital, are not the hospital authorities then under a
duty of care in their treatment of him? I think they are. Clearly, if
he is a paying patient, paying them directly for their treatment of
him, they must take reasonable care of him; and why should it
make any difference if he does not pay them directly, but only
indirectly 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 the

treatment? I see no difference at all. Even if he is so poor that he
can pay nothing, and the hospital treats him out of charity, still the
hospital authorities are under a duty to take reasonable care of him
just as the doctor is who treats him without asking a fee. In my
opinion authorities who run a hospital, be they local authorities,
government boards, or any other corporation, are in law under the
selfsame duty as the humblest doctor; whenever they accept a
patient for treatment, they must use reasonable care and skill to
cure him of his ailment. The hospital authorities cannot, of
course, do it by themselves: they have no ears to listen through
the stethoscope, and no hands to hold the surgeon's knife. They
must do it by the staff which they employ; and if their staff are
negligent in giving the treatment, they are just as liable for that
negligence as is anyone else who employs others to do his duties
for him..."
Further on in the same decision, Lord Denning said:

"...the hospital authorities accepted the plaintiff as a patient for

treatment, and it was their duty to treat him with reasonable
care...If those surgeons and nurses did not treat him with proper
care and skill, then the hospital authorities must answer for it, for
it 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 an

obligation to treat its patient, an obligation which carries with it a
duty to use reasonable care in treatment, so that the hospital is
liable, if a person engaged to perform the obligation on its behalf
acts without due care: Gold (59). Accordingly, the duty is one
the performance of which cannot be delegated, not even to a
properly 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 in

Australia of the doctrine of independent or non-delegable duty, it
seems to me that, so far as the responsibility of hospitals to their
patients is concerned, the matter has been well stated, if I may say
so, by Houlden JA in the second dissenting judgment in
Yepremian. His Lordship said (at 581):

' First, a general hospital may function as a place where

medical care facilities are provided for the use of a
physician and his patient. The patient comes to the
hospital because his physician has decided that the
hospital's facilities are needed for the proper care and
treatment of the patient. This use of the hospital is made
possible by an arrangement between the hospital and the
physician by which the physician is granted hospital
privileges. Where a hospital functions as merely the
provider of medical care facilities, then, as the trial Judge
pointed out, a hospital is not responsible for the negligence
of the physician. The present case does not, of course,
come within this classification.

Second, a general hospital may function as a place

where a person in need of treatment goes to obtain
treatment. Here the role of the hospital is that of an
institution where medical treatment is made available to
those who require it. The present case falls in this second
classification. Tony Yepremian was brought to the
Scarborough General Hospital because he was in need of
treatment. Does a hospital in these circumstances have the
duty to provide proper medical care to a patient? In my
judgment, it does.' "
At 604 Samuels JA continued:

" In my opinion therefore while proof of the relationship of

hospital and 'patient' will generate a special duty of some kind,
closer scrutiny of the facts (cf the analysis proposed by Mason J
in Stevens v Brodribb Sawmilling) is necessary in order to
establish its scope. It is a question of what medical services the
hospital has undertaken to supply. In a case such as Albrighton
where the patient went directly to the hospital for advice and
treatment 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 had
undertaken to render, and that duty arose as soon as the plaintiff
resorted to the hospital's out-patients' clinic; it did not wait upon
admission. In such a case the hospital, by accepting the patient,
undertakes to make available all the therapeutic skill and devices
which it is reasonably able to deploy. The patient's choice is
determined by his or her decision to knock at the door of the
defendant's hospital, as Lord Greene put it in Gold (at 302). If the
hospital's response is to open the door and admit the patient to the
benefits of the medical and surgical cornucopia within, it remains
responsible to ensure that whatever treatment or advice the horn
disgorges is given with proper care; its duty cannot be divested by
delegation.

But the evidence in a particular case may establish that the

hospital's undertaking was of a more limited kind. As Morris LJ
pointed out in Roe (at 89) and (at 91) the nature of the obligation
which a hospital has assumed becomes ultimately a question of
fact, a proposition which the Court of Appeal adopted in
Albrighton.

...

My conclusion does not impose differential duties on a hospital.

Following Kondis a hospital owes an independent non-delegable
duty to ensure that the treatment it undertakes to provide is
performed with reasonable care. The question in every case is the
nature of that undertaking.

Complaint has been made of the absence of judicial exposition

of the policy reasons for applying the non-delegable duty to the
hospital-patient relationship, eg, W P Whippy, 'A Hospital's
Personal and Non-delegable Duty to Care for Its Patients - Novel
Doctrine or Vicarious Liability Disguised?" (1989) 63 ALJ 182 at
201. That application merely represents the wider operation of a
principle of considerable flexibility whose basic rationale has been
explained in Kondis, and Commonwealth v Introvigne (1980) 150
CLR 258. It arises from a relationship which combines the
dependence of A upon the reasonable care, skill and judgment of
B with the legitimate expectation that B will ensure that those
qualities will be exercised in protection of the person or property

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of A. A further policy decision will be required to determine

when 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 of
the 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 the

defendant. When all is said and done he sustained damage to his
heart muscle which has produced a variety of consequences but
which may have been reduced if there had been timely medical
attention. There is no evidence to assist me on the question of the
extent to which the plaintiff suffered more disability than he
otherwise would have if there had been a late but correct
diagnosis. There is no certainty that the cause of the plaintiff's
myocardial infarction was a thrombosis which might have been
relieved by the timely administration of thrombolytic therapy. It is
only in that specific circumstance that the plaintiff's heart muscle
damage 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 spasm

thrombolytic therapy almost certainly would not have been
helpful. ... It is speculative to say whether this could be either a
spontaneous thrombus, perhaps occurring on a microscopic
abnormality 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 reliably
distinguish 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 swift

administration of thrombolytic therapy which may have minimised
or reduced heart muscle damage."
His Honour also found:

"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 and I am accordingly of
the view that the second defendant's negligence caused damage to
the plaintiff."
His Honour went on to say:

"Perhaps in other words, the plaintiff has proved on the balance of

probabilities that his life expectancy may have been decreased and
his non-pecuniary loss may have been exacerbated as a result of
the negligence of the defendant in excluding a diagnosis of
myocardial infarction and failing to keep him in hospital for
further 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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 Lib No: 970069C

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 -

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 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 to
twelve hours, I guess is the answer, because that is when the clot
dissolving drug doesn't appear to have any further value. So we
have learnt that from the use of these thrombolytic drugs. If you
give them after 12 hours, the benefits seem to be very modest
indeed. That perhaps is to be modified for patients who are
continuing to have chest pain and it's 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."
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, I

believe, at 10.00 or 10.30 that morning, were abnormal suggesting
there had been damage at that time. Certainly, his later course
suggested that he had a significant myocardial infarction and that
he 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:

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 Lib No: 970069C

"With hindsight it does seem plausible that an ECG later in the

morning could have identified myocardial infarction. Subsequent
events, however, also indicate that the coronary arteries remain
patent and that the most likely cause of infarction was a spasm of
the appropriate coronary vessels ... it is doubtful whether
thrombolytic therapy has any value in cases of spasm of vessels in
contrast 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

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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, I
understand again from reports from other hospitals, that the
patient sustained a heart attack late last year and on that occasion,
the coronary arteriogram showed a blockage due to the normal
likely causes of clots on an atherosclerotic plaque ... I think, going
on the balance of probabilities, the fact that he has, some years
later, developed clear cut evidence of atherosclerotic heart
disease, the usual form of heart disease, it would be a much more
logical presumption to assume that he had atherosclerotic heart
disease previously, but it simply had not been possible to
demonstrate that on the coronary arteriogram and we know that
fact 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

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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 on
the morning of 6 April 1988 prior to 9.00am. It appears to have
been a well known fact on the evidence that it was not uncommon
for an initial early ECG of a person having a myocardial infarction
to be normal. With the continuation of symptoms another ECG
ought to have been administered. 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 seems likely
on the evidence that the ECG would have been abnormal.
Abnormality of the ECG would be likely to have resulted in a
swift administration of thrombolytic therapy which may have
minimised or reduced heart muscle damage. By reason of the
second defendants negligence the plaintiff has lost the chance of
having his heart muscle damage minimised or reduced by timely
thrombolytic therapy and I am accordingly of the view that the
second 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 was

emphasised in Hotson v East Berkshire Area Health Authority
[1987] AC 750. There Lord Ackner stated that the first issue that
fell to be determined was that of causation. This was to be
determined on the balance of probabilities. Once liability was
established, the assessment of the plaintiff's loss could proceed,
taking into account any reductions arising from the uncertainty of
future events."
At 355 their Honours said:

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

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 Lib No: 970069C

sustained some loss or damage. However, in a case such as the

present, the applicant shows some loss or damage was sustained
by demonstrating that the contravening conduct caused the loss of
a commercial opportunity which had some value (not being
negligible value), the value being ascertained by reference to the
degree 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 of

duty and any harm suffered by the person to whom the duty is
owed is a question of fact to be decided on the balance of
probabilities. The existence of the cause or connection is to be
determined in accordance with common-sense notions of
causation and not in accordance with any philosophical or
scientific theory of causation or any modification or adaptation of
such 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 medical
attention. There is no evidence to assist me on the question of the
extent to which the plaintiff suffered more disability than he
otherwise would if there had been a late but correct diagnosis.

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 Lib No: 970069C

There is no certainty that the cause of the plaintiff's myocardial

infarction was a thrombosis that might have been relieved by the
timely administration of thrombolytic therapy. It is only in that
specific circumstance that the plaintiff's heart muscle damage may
have 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

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 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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