Citation : HAMMOND -v- HEATH & ANOR [2008] WADC 138

Negligence - Duty to warn - Whether breach of duty of care by failing to warn of risks of maintaining Marlex mesh in place and failing to remove the Marlex mesh - Effect of not challenging relevant evidence at trial

Evidence Act 1996 (WA), s 79B, s 79C(2a), s 79C(3)(a)

Bolan v Friern Hospital Management Committee [1957] 1 WLR 582

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Scope Machinery Pty Ltd v Ross [2009] WASCA 100

Sheppard v Swan [2004] WASCA 215

1 The appellant, Mr Michael Hammond, appeals from the decision of a Commissioner of the District Court dismissing his claim against the first respondent, Mr Dougal Heath, a surgeon, and the second respondent, the Minister for Health. Mr Hammond claims that Mr Heath breached a duty of care owed to him as his patient, and that the Minister for Health, as Mr Heath's employer, is vicariously liable for those breaches of duty.

2 The context of the appeal is best set by a short summary of the facts found by the Commissioner, which are not in contention.

3 Mr Hammond has suffered from various conditions of the bowel since 1997. During that year surgery was performed on his bowel. However, he continued to suffer from various symptoms associated with bowel illness including vomiting, distension and tenderness of the abdomen. More bowel surgery was performed during 2000.

4 In early May 2001 Mr Hammond suffered further symptoms of abdominal pain and vomiting. Upon presentation to the Joondalup Health Campus, he was placed under the care of Mr Heath. On 10 May 2001, Mr Heath performed an operation on Mr Hammond's bowel, in the course of which he removed multiple adhesions of the small bowel. During the course of the surgery, Mr Heath found that as a consequence of the previous surgery which Mr Hammond had undergone, part of a loop of the small bowel had protruded or herniated through the lining of the peritoneum where an incision had been made during previous surgery. Mr Heath repaired that defect by the insertion of a section of Marlex mesh between the peritoneal lining and the muscle immediately outside the peritoneum. Marlex mesh is a form of polypropylene surgical mesh commonly used by surgeons to repair incisional herniae.

5 Notwithstanding the surgery, Mr Hammond continued to suffer severe abdominal pain. By 25 May 2001, the pain experienced by Mr Hammond and other associated symptoms led Mr Heath to conclude that further surgery was appropriate. During the surgery Mr Heath found that Mr Hammond's small bowel had herniated through a defect in the peritoneum and become affixed to the Marlex mesh. Part of the small bowel was removed and the remainder rejoined, and a colostomy inserted. This surgery was difficult and protracted, taking some six hours.

6 At the completion of the procedure, Mr Heath closed the upper end of the abdominal wound, but packed the lower end and left it open to enable cleaning and dressing. Mr Heath's evidence was that he did this because he intended to undertake a further laparotomy and peritoneal lavage 24 to 28 hours later and he did so on 27 May 2001. Some time after that surgery, Mr Hammond developed an abdominal fistula, which is an abnormal passage leading from one of the internal organs of the abdomen to the surface of the abdomen.

7 Mr Hammond continued to be unwell, and remained in hospital. By reason of his failure to recuperate, on 25 August 2001 Mr Heath again operated on Mr Hammond's bowel. Further adhesions were found and removed, in the course of which further perforations were made in the small bowel, which required repair. This surgery was also difficult and protracted, and occupied approximately five hours. Following that surgery, significant volumes of intestinal fluid continued to discharge from the wound, and by 28 August 2001 Mr Hammond continued to suffer severe abdominal pain and was feverish. On that day, further surgery was undertaken by Mr Heath.

8 By mid-September 2001, Mr Hammond's condition stabilised. However, during October-December 2001, he continued to suffer symptoms of bowel illness and presented himself at both Sir Charles Gairdner Hospital and Joondalup Health Campus on a number of occasions. On 14 December 2001, he presented himself to the Joondalup Health Campus, where he was seen by Mr Aitken, another surgeon who had assisted Mr Heath in the surgery conducted on 25 August 2001.

9 Mr Hammond's symptoms persisted during 2002, when he was referred by his general practitioner to Mr Kubacz, who is also a surgeon. Mr Kubacz was responsible for Mr Hammond's care during various parts of 2002 and January 2003. However, in light of his pending retirement, Mr Kubacz arranged for Mr Hammond to be referred to another surgeon, Mr Hool.

10 In early February 2003, Mr Hammond was admitted to hospital under the care of Mr Hool, as a consequence of his continuing abdominal pain. On 14 February 2003, Mr Hool performed further abdominal surgery, during which he found a fistula which was associated with the Marlex mesh. During the course of the surgery he removed so much of the mesh as had not become incorporated into the fistula. Follow up surgery was carried out by Mr Hool on 17 February 2003, after which Mr Hammond made a reasonable recovery. However, Mr Hammond suffered further symptoms of abdominal pain in 2005, which were treated conservatively by Mr Hool.

11 The statement of claim advanced on behalf of Mr Hammond, as amended during the course of the trial, asserted various particulars of negligence. As many were abandoned during the course of the trial, and others are not pursued on appeal, it is unnecessary to address them all. The only allegations of negligence that remain in contention are the allegation that Mr Heath breached his duty to Mr Hammond by failing to warn him of the risks of maintaining the Marlex mesh in place after the surgery on 27 May 2001, and by failing to remove the mesh during the surgery conducted on 28 August 2001.

12 The witnesses at trial were Mr Hammond, Mr Heath, Mr Kubacz, Mr Aitken, Mr Hool and another surgeon, Professor Faulkner. In his reasons, the Commissioner carefully reviewed the evidence given by each of the surgeons. For reasons which he carefully enunciated, he found the evidence given by Mr Kubacz to be unsatisfactory and concluded that where that evidence conflicted with the evidence given by other experts, the Commissioner would prefer that other evidence. He made no adverse findings in respect of the credibility of the other witnesses.

13 The Commissioner concluded that Mr Hammond had failed to make out any of the alleged breaches of duty. However, on the subject of causation, he found that the continued presence of the mesh, which had been inserted during the surgical procedure on 10 May 2001, had caused an infection and fistula to develop from late May 2001 and to remain until the situation was rectified by the surgery conducted by Mr Hool during February 2003.

14 There are four grounds of appeal. The first two are concerned with the alleged failure to warn Mr Hammond of the risks associated with allowing the mesh to remain in place after the surgery conducted in May 2001. The third ground concerns the failure to remove the mesh during the surgery conducted on 28 August 2001. The fourth ground is concerned with the rejection of the tender of a document produced by the Health Insurance Commission which contained a record of the claims for medical benefits made by Mr Hammond over the period of the claim.

15 The first ground of appeal associated with the alleged breach of duty by failing to warn Mr Hammond of the risks associated with allowing the mesh to remain in situ following the surgery in May 2001 challenges the Commissioner's finding that there was no duty to warn. The second ground asserts that the Commissioner failed to find, and should have found that if Mr Hammond had been warned of the risks involved, he would have directed that the mesh be removed. Counsel for Mr Hammond accepts that if the first ground fails, the second ground necessarily falls with it.

16 There is no difficulty in principle with the notion of a medical practitioner having a duty to warn a patient under his or her care of the risks associated with leaving a surgical appliance in place, if the circumstances warrant such a warning. It is a logical corollary of the well-established duty of medical practitioners to warn patients of the risks associated with surgical procedures prior to requesting the consent of the patient to undergo the procedure (Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 490 and 494). The Commissioner accepted this principle, but found that the facts of Mr Hammond's case, and the evidence adduced at trial, did not sustain the conclusion that Mr Heath had a duty to warn Mr Hammond of the risks associated with allowing the mesh to remain in place. There are a number of reasons why this conclusion was correct.

17 The first reason for this view arises from a consideration of the nature of the duty asserted. The duty to warn is asserted in a factual context in which Mr Hammond now accepts that there was no breach of duty by Mr Heath in allowing the mesh to remain in place during the surgical procedures which he performed on 25 and 27 May 2001. Rather, the duty to warn is said to have arisen following the completion of those procedures, and at a time when no other surgical intervention was contemplated. However, there was no evidence that at that time, and in those circumstances, allowing the mesh to remain in place would reasonably have been thought to pose any appreciable adverse risk to Mr Hammond. To the contrary, the evidence was that allowing such mesh to remain in place is commonplace and accepted surgical practice. While accepted surgical practice does not of itself define the scope of the duty of care owed by a medical practitioner (Rogers v Whitaker, 487; cf Bolan v Friern Hospital Management Committee [1957] 1 WLR 582), on the evidence in this case there is no reason to suppose that standard practice to be in breach of any relevant duty of care. The evidence of all the witnesses was to the effect that the mesh was a valuable surgical aid which provided support to the structure created during the course of surgery. Removal of the mesh following surgery would not ordinarily be contemplated, in the absence of evident complications. The question of the duties imposed upon Mr Heath when complications were apparent during August 2001 gives rise to rather different issues which I will address in due course.

18 Mr Hammond asserts that the relevant duty to warn arose at a time when no further surgical procedure was contemplated. However, the evidence of all the witnesses was to the effect that it would have been entirely inappropriate to undertake surgery solely for the purpose of removing the mesh, because the risks associated with such a procedure would have been entirely disproportionate to the benefit, if any, derived from the removal of the mesh. Again it is significant to remember that in the usual case, removal of surgical mesh confers no benefit upon the patient, but carries the risk of weakening the structures created by the surgery. The expert witness whose evidence was most favourable to Mr Hammond, Mr Kubacz, gave much evidence about when the mesh 'should' have been removed, but also gave evidence to the effect that he would not have operated upon Mr Hammond solely for the purpose of removing the mesh, and as a matter of fact he did not do so over the period of nine months or so during which Mr Hammond was under his care. The Commissioner's general finding with respect to the evidence of Mr Kubacz, which has not been challenged, must also be kept in mind.

19 It follows that the duty to warn for which Mr Hammond contends, being a duty unassociated with any particular complications or prospective surgery, is entirely unsupported by the evidence. A duty to warn of the risk inherent in a surgical procedure in the context of prospective surgery is, of course, well established. But that is a duty to warn of the risks associated with the procedure. As will be seen when I address this issue later, in truth Mr Hammond's case comes down to the proposition that in the context of prospective surgery, his views should have been sought as to the course that should be followed when decisions fell to be taken during the course of the surgery. That is quite different in nature to the asserted duty to warn of a continuing risk.

20 Second, as the Commissioner found (reasons [176]):

None of the experts, including Mr Kubacz, was asked whether a reasonable and prudent surgeon would warn a patient who had had Marlex mesh inserted, that there was a risk of visceral erosion and/or fistulation if the mesh remained in his or her body.

21 Counsel for Mr Hammond sought to overcome this gaping hole in the evidence necessary to sustain the asserted duty by reference to the proposition that the issue was one of evaluation for the court, rather than an issue which had to be sustained by evidence, relying upon the principle in Rogers v Whitaker. While it is undoubtedly correct that the ultimate delineation of the duties of care imposed upon a medical practitioner is determined by the court, and not by standards of practice adopted within the medical profession, the decision of the court in a case such as this must be based upon evidence of risk, the consequences if the risk eventuates and the risks associated with any remedial procedure. Further, while evidence of practices adopted within the medical profession will not necessarily be determinative, it is, of course, relevant (Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 439; Sheppard v Swan [2004] WASCA 215 at [41]). The failure of any of the expert witnesses to assert that they would have warned Mr Hammond of the risks of allowing the mesh to remain in place supports the conclusion of the trial judge. The failure of any of the experts to give evidence of the degree of risk associated with allowing the mesh to remain in place, which should have been assessed by a competent medical practitioner, having regard to Mr Hammond's condition and symptoms, and the degree of risk associated with surgery to remove the mesh in those circumstances, prevents the court from making its own evaluation of appropriate standards of care.

22 A third reason why the trial judge was correct to conclude that Mr Heath was under no duty to warn Mr Hammond of the possible consequences of allowing the mesh to remain in place is that during cross-examination of Mr Heath, counsel for Mr Hammond did not ask Mr Heath whether he gave any warning to Mr Hammond on the topic, nor suggested to Mr Heath the facts or propositions that would have created any such obligation. I do not suggest that there was any obligation to cross-examine Mr Heath in relation to the existence of the duty - that is a matter for the court. However, as Mr Hammond's case centred upon the existence of such a duty, in my view, procedural fairness required the facts and propositions said to give rise to such a duty to be put fairly and squarely to Mr Heath in order that he could provide his response. Mr Heath was, after all, the person responsible for the care and treatment of Mr Hammond at the relevant time. The duty to warn could only arise from facts and circumstances pertaining to Mr Hammond's condition and his appropriate treatment. It was therefore incumbent upon counsel for Mr Hammond to identify those facts and circumstances and put them to Mr Heath (Scope Machinery Pty Ltd v Ross [2009] WASCA 100 at [28] - [29]). Failure to comply with that obligation is a departure from basic principles of procedural fairness which precludes the proposition said to be drawn from them being put against Mr Heath.

23 I have referred to the possibility that a duty to warn might have arisen in the circumstances which existed in August 2001, in the context of the surgery then contemplated. That proposition suffers at least some of the difficulties associated with the more general duty asserted, but is in any case best considered in the context of ground 3 which focuses upon the circumstances which existed in August 2001, and to which I will now turn. However, subject to a duty to warn being enlivened by those circumstances, for the reasons I have given, ground 1 must be dismissed and ground 2 therefore falls with it.

Failure to remove the mesh on 28 August 2001

24 Through counsel, Mr Hammond now accepts that Mr Heath was not in breach of duty by failing to remove the mesh during the course of the surgical procedure he performed on 25 August 2001. That is because it is accepted that it would have been unwise to protract major and complicated surgery, and exacerbate the risks associated with that surgery, by undertaking the removal of the mesh as well as the other procedures that were performed on that occasion. However, it is asserted that different considerations applied three days later, on 28 August 2001, when the mesh could and should have been removed during the course of the laparotomy and lavage procedure carried out that day.

25 The Commissioner rejected the proposition advanced at trial (but no longer pursued) to the effect that Mr Heath breached his duty to Mr Hammond by failing to remove the mesh during the course of the surgical procedure conducted on 25 August 2001 for two reasons. First, he accepted the evidence given by Mr Heath to the effect that his primary concern on 25 August 2001 was for the survival of Mr Hammond, having regard to his condition and the extensive surgical procedure which was conducted on that day. Although Mr Heath did not recall giving active consideration to the removal of the mesh during the course of that procedure, his evidence was that there was no reason why he should have done so, given that his entire focus was upon minimising the degree of surgical intervention so as to minimise the risk of death. The second reason the Commissioner rejected the proposition that the mesh should have been removed on 25 August 2001, was his finding that removal of the mesh would have been difficult, because the mesh would have become integrated with the plaintiff's body tissue.

26 In relation to the proposition that the mesh should have been removed during the shorter procedure on 28 August 2001, the Commissioner concluded that the circumstances on 28 August 2001 were not materially different to the circumstances which pertained on 25 August 2001, with the result that it would have been equally unwise to protract the surgical intervention by removing the mesh. By ground 3 of the appeal, Mr Hammond challenges both reasons given by the Commissioner and further asserts that he failed to provide adequate reasons for his conclusion that there was no breach of duty by leaving the mesh in place on 28 August 2001.

27 The first area of challenge concerns the Commissioner's conclusion that the condition of Mr Hammond on 28 August 2001 was such that extending the surgical procedure conducted on that day for the purpose of removing the mesh was not justified by the risks which would have been associated with that procedure. The Commissioner made that finding based upon the direct evidence of Mr Heath (ts 413). His evidence was that the circumstances which mitigated against any surgical intervention over and above that which was essential to maintain life on 25 August 2001 persisted on 28 August 2001. In Mr Heath's words, Mr Hammond had been very unwell for three months and was malnourished because he had a small bowel fistula, with episodes of sepsis. After the stress of a major operation on 25 August 2001, he was being returned to surgery three days later. His concern was that Mr Hammond was in a 'life and death situation' in which the continued presence of the mesh was, at most, a 'major nuisance' which could be dealt with at a later date.

28 Mr Heath's evidence to that effect was not challenged in cross-examination. It follows that it is impossible for Mr Hammond to now assert, on appeal, that the evidence should be rejected for reasons not put to Mr Heath during his evidence (see Scope Machinery above). In any event, the evidence to which Mr Hammond points, through counsel, is quite insufficient to provide any proper basis for challenging the direct evidence given by Mr Heath as to the condition of Mr Hammond when he operated on him on 28 August 2001. The evidence to which reference was made during the course of argument on appeal was the clinical notes maintained by the hospital, which are in many cases at best cryptic, and which were unsupported by any oral evidence. Those notes provide no proper basis for challenging on appeal the direct testimony of Mr Heath, which in any event was not challenged by cross-examination.

29 It is pertinent to observe that this conclusion is sufficient to dispose of ground 3, because Mr Heath's evidence, which the Commissioner accepted, was to the effect that the reason he did not consider removal of the mesh on 28 August 2001 was because of his concern for the safety of Mr Hammond. Mr Heath did not suggest in his evidence that the removal of the mesh would have been unduly difficult because it was ingrained in body tissue, from which it follows that the additional reason given by the Commissioner for rejecting the contention that there was a breach of duty is, to some extent, irrelevant.

30 However, there is in any case no substance in the attack upon the Commissioner's conclusions in that respect. The evidence of each of Mr Aitken, Mr Kubacz and Professor Faulkner was to the effect that it was likely that the mesh would have been ingrained in body tissue by 28 August 2001, and therefore difficult to remove. Mr Hool gave evidence to different effect, and asserted that the infection around part of the mesh would have precluded body tissue forming in and around that part of the mesh. However, it was open to the Commissioner to accept the evidence given by the other experts, and no clear reason for accepting the evidence of Mr Hool in preference to that other evidence has been advanced.

31 In general terms, the evidence of Professor Faulkner strongly reinforced the evidence given by Mr Heath. His evidence (ts 340 - 343) was to the effect that the decision as to whether the possible benefit to be derived from the removal of the mesh on each of 25 or 28 August 2001 justified the increase in risk to the patient arising from protracting the surgery was a matter for clinical judgment best made by the surgeon who was able to assess the condition of the patient and the extent of the surgery required to remove the mesh. Mr Heath gave evidence of the assessment which he made, which focused predominantly upon the need to minimise surgical intervention because of the risk to the life of the patient. It was open to the Commissioner to accept Mr Heath's assessment was reasonably made in all the circumstances established by the evidence adduced.

32 It is appropriate to now apply these conclusions to the residual issue of whether the circumstances which prevailed in the latter part of August 2001 were such as to give rise to a duty to warn Mr Hammond of the risks associated with leaving the mesh in place. It follows from the conclusion that the question of whether or not the mesh should have been removed during one or other of the surgical procedures conducted in late August was a matter for clinical judgment to be made by the surgeon in all the circumstances which prevailed during the course of the surgery itself, that no point or purpose would have been served by alerting Mr Hammond to the issue in advance of the surgery, as it would have been inappropriate and contrary to his interests to refer the decision to him.

33 As I have foreshadowed, Mr Hammond's case with respect to the alleged duty to warn really comes down to the proposition that prior to conducting the surgery on 28 August 2001, Mr Heath should have advised him of the various decisions that might have to be taken during the course of surgery, such as whether the condition of his bowel was such that extending the surgery to remove the mesh was appropriate, and sought his views as to how such decisions should be taken should the occasion arise. The duty of care recognised in Rogers v Whitaker was a duty to warn of the risks if a surgical procedure is undertaken, and which are inherent in that procedure, in order that the patient may make an informed decision about whether to undertake the procedure. It is not a duty to delegate to the patient the responsibility for deciding, in advance of the surgery, the course that should be followed when any of the many contingencies which might arise during a surgical procedure eventuate.

34 In Rogers v Whitaker, the plurality observed (at 489):

There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. ...

Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive role to play - whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order ...

35 The responsibility for taking the course that best serves the interests of the patient when decisions fall to be taken in the course of surgery rests with the surgeon, to be exercised having regard to the condition of the patient and the observations made during surgery, applying the skill, training and experience of the surgeon. This is not to say that there may not be cases where all relevant circumstances can be predicted in advance, along with the relative risks associated with different courses of action, in which there might be a duty to seek the views of the patient prior to conducting the surgery. But the evidence did not establish this to be such a case. Rather, this was a case in which the decision as to whether or not to remove the mesh during the surgery conducted on 28 August 2001 was a decision as to the treatment to be applied having regard to all the circumstances of the surgery, and is not properly characterised as giving rise to any duty to inform with respect to the particular issue of whether or not the mesh should be removed.

36 Finally in relation to this ground, there is nothing in the proposition that the Commissioner failed to give adequate reasons for his conclusions in this area. His reasoning processes are perfectly lucid and clear.

37 The fourth ground of appeal challenges the trial judge's rejection of a document tendered during the course of Mr Hammond's evidence entitled 'medicare claims history statement'. The document was apparently generated by the Health Insurance Commission of Australia, and purports to list medical services in respect of which benefit was claimed by Mr Hammond between 1 May 2001 and 31 July 2006. The document takes the form of a series of headings, indicating the medical service provider, under which there are a series of columns indicating the date of the service provided, the item number in respect of which the claim was made, the charge made for the service, the benefit provided, the payment method utilised, and a brief description of the service, for example, 'urine culture'. It is a reasonable inference from the document that it presents records maintained by the Health Insurance Commission of claims made by Mr Hammond, in the course of which he presented to the Commission accounts rendered by medical service providers. It is reasonable to infer that the material presented on the statement has been taken from those accounts.

38 The copy of the statement tendered in evidence bears a number of ticks. Mr Hammond explained that he ticked each item which he considered had 'to do with the complications that had set in from the operations' (ts 61). The statement comprises some six closely typed pages, and many of the items on those pages have been ticked by Mr Hammond. After objection was taken, Mr Hammond was asked to specify the services provided in respect of a number of the items. Understandably, his recollection of individual items was poor, and the most he could say was that the items he had ticked would have related to his stomach because he had stomach problems at the time the service was provided. However, it is impossible from the face of the document to see any rational or coherent basis for distinguishing between those items which had been ticked, and those which had not, and Mr Hammond was unable to say any more than that it was his best estimate. The tender of the document was pressed on the basis that the ticked items should be taken to be medical services provided to Mr Hammond as a consequence of the complications he suffered following the stomach surgery conducted in May 2001.

39 In argument on appeal, it was asserted that the document was admissible pursuant to s 79C(2a) of the Evidence Act 1996 (WA). That section renders admissible a statement in a document that is, or directly or indirectly reproduces or is derived from a business record, irrespective of the rule against hearsay (s 79C(3)(a)). The expression 'business record' is defined to mean 'a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business' (s 79B). The document tendered in evidence is plainly a 'business record' of the Health Insurance Commission. Further, to the extent that the document contains the information to which I have referred, it is reasonable to infer that the information relating to the identity of the medical service provider, the service provided and the charge rendered is itself derived from or reproduces statements made in business records produced by those service providers, being accounts rendered to Mr Hammond. Accordingly, it seems to me that the document is admissible as a statement to the effect that a medical service of the character described in the document was provided by the medical service provider identified on or about the date shown in the document, for which the medical service provider charged the amounts shown, and in respect of which Mr Hammond received the benefit shown.

40 However, the only facts relevant to the matters in issue between the parties were the extent of the medical services provided to Mr Hammond as a consequence of the complications which he asserted were caused by Mr Heath's negligence. It follows that in order to make the statements contained in the document relevant and admissible, evidence was required to sustain the proposition that the services indicated were in fact provided as a consequence of complications arising from the alleged negligence of Mr Heath. The evidence given by Mr Hammond was at such a level of generality that it was incapable of sustaining the conclusion that any particular item, whether ticked or not, was a service provided as a consequence of the matters of which Mr Hammond complained. So, while in an appropriate case, a statement of this kind may be admissible if there is evidence linking the medical service provided to the injuries said to have been suffered as a consequence of the tort complained of, in this case the evidence necessary to make that link was not provided and the trial judge was correct to reject the tender of the statement.

41 For the reasons I have given, in my opinion, all grounds of appeal fail, and the appeal must be dismissed.