Fol, Appl Ai Foll Appl Cons/Appl "Maxakis v Ke Cal 'hy ily faxakisy est

Fol, Appl Ai Foll Appl Cons/Appl "Maxakis v Ke Cal 'hy ily faxakisy est - [1945] HCA 16 - HCA 1945 case summary — Zoe

[32]

that the thing alleged by the appellant had happened. There was evidence which, if believed, supports the verdict. The fact that there may be very strong evidence for the respondent is irrelevant for the purpose of considering whether there is evidence which would support the verdict. The story told by the appellant in respect of the drainage tube is not an impossible story but, on the contrary, is a probable one. The respondent's version of his method of pro- cedure in and about the operation varied from time to time in an endeavour to meet the allegations made by the appellant. That variation was significant. The jury was entitled to find that there was no proper or other inference to be drawn other than that the tetany was caused by a foreign body. It is worthy of note that immediately the foreign body was extruded as described by the appellant the tetany ceased. Upon the evidence given by the respondent himself the jury was entitled to say that what was described by the appellant had been done by the respondent. Admissions by a medical practitioner are not in a category different from that of a layman. The science of anatomy is not an exact science. The credibility of the respondent's witnesses, particularly his medical witnesses, was affected by reason of variations which appear in the evidence given at the various trials, therefore the jury was entitled to say that it did not accept their evidence. It may be that the respondent was faced with a dilemma, but, if so, it was a dilemma of his own making. The respondent, doubtless, offset the knowledge that the trouble was caused by the tube by the hope that it would be extruded, or, if it were not, that the infection would become quiescent. The evidence shows that, although he denied it originally the respondent thought throughout that the appellant's condition was one of true tetany. The evidence given by the appellant's " family " doctor is such that the jury would be justified in utterly disbelieving it and also in assuming that a certain letter written by the respondent and sent to that doctor was written and sent in bad faith. The final result of the condition of the appellant's tonsil is that the respondent's evidence provides no explanation. That is the only inference and certainly is one the jury is entitled to draw. If, as here, there is some evidence which supports the verdict of a jury, that verdict should not be disturbed by an appel- late court. The nature of the tests made and the treatment admitted by the respondent and other medical witnesses to have been given and prescribed following upon the reporting by the appellant of the extrusion of the tube, support the allegations made by the appellant. As far as a question arises between true and hysterical tetany there were available in October 1939 tests well known to

[39]

something vital, e.g., the structures in the vascular compartment. Reference to medical text-books and treatises shows that there are not any muscles situate between the thyroid and the tonsil, thus the passage of the tube would be practically unimpeded. A likely explanation is that the tube flowed or moved along a channel of infection. The medical witnesses differ as to their opinions and some agree with the representations made on behalf of the appellant. The jury might reasonably infer, once the jurymen were satisfied that the tube entered the wound, that the tube aggravated the infection. The power conferred by s. 7 of the Supreme Court Procedure Act 1900 upon the Court below is limited to the granting of a new trial and does not empower the Court to enter a verdict for the respondent : See Phillips v. Ellinson Brothers Pty. Ltd. (1). There was some evidence before the jury ; the verdict of the jury should not be set aside unless reasonable men could not have arrived at the con- clusion. The only existing means whereby a verdict can be entered for the defendant is under the common law that if the Full Court is of opinion that on the evidence the plaintiff or the defendant is entitled at law to a verdict, such a verdict may be entered. The principle applicable is as enunciated in Dublin, Wicklow and Wexford Railway Co. v. Slattery (2) - see also Shepherd v. Felt and Textiles of Australia Ltd. (3) and Driver v. War Service Homes Commissioner [No. 1] (4). There was not any conflict of evidence in De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd. (5). In Adelaide Stevedoring Co. Ltd. v. Forst (6) there was a lack of unanimity in the medical evidence and, having regard to the facts, a conflict as to the inference to be drawn. In conclusion it is submitted that there is evidence upon which reasonable men could find that the appellant's case was established, and, therefore, that she is entitled to have the verdict of the jury restored. The most the Court below was empowered to do was to grant a new trial; therefore the decision of that Court should be set aside and, in that event, a new trial granted. Having regard to the fact that there have been four trials of the matter and that twelve out of the sixteen jurymen have decided in favour of the appellant the Court should allow the verdict of the jury to stand (Goodwin v. Gibbons (7) ).

[42]

conflict between the evidence given by witnesses, medical and other- wise, for the appellant. Some of the evidence so given is based not upon established facts but upon theories and inferences incorrectly drawn. Upon the evidence the allegations made by or on behalf of the appellant are not only improbable but are also impossible. The charges so made involve a charge of criminal malpractice on the part of the respondent which is entirely without foundation. The story told in support of those allegations could not reasonably be accepted by any jury of reasonable men. The evidence given by the appellant herself during the course of the various trials varies to a greater or lesser extent in many material respects. The evidence so given does not agree in many respects with facts indisputably established. A finding that a tube was or could have been left in the wound is negatived by the weighty evidence of medical and other witnesses and this evidence is supported by hospital and other records. No reasonably minded person who approached the case free from prejudice or wrong considerations could come to the conclusion that a tube with or without a swab could have been left in the position described by or on behalf of the appellant. The evidence given by the appellant as to the alleged eruption and disposal of the tube does not stand up to test and, it is submitted, is merely imagina- tion or hallucination on the part of the appellant. The basis of hallucination exists in this case because it is an accompaniment of the condition of thyrotoxicosis and also of the condition of angio neurotic oedema associated with the appellant. The evidence relating to the appellant's blood count is of vital importance as further supporting the improbability of the allegations made by the appellant. The existence or otherwise of tetany is a comparatively small matter. It is not decisive as to the alleged omission to remove thetube. There is a large body of evidence which supports a medical theory that after a certain date the condition of the appellant was one of hysteria and not of tetany. Under s. 7 of the Supreme Court Procedure Act as a matter of law the respondent was entitled to a verdict. A court must satisfy itself that there is credible evidence that can be put to the jury and on which the jury are entitled to make a finding as to what is charged. It is the function of the court to determine whether or not there is credible evidence in the case (Banbury vy. Bank of Montreal (1) ). Section 7 empowers the Full Court of the Supreme Court to enter a verdict. De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd. (2) is applicable to

[105]

The Quirindi Hospital records, together with the evidence of the plaintiff, show that the wound in the neck was frequently fomented, and was kept open in order to permit an effective discharge. Pieces of catgut came out from time to time. (Catgut lasts longer in pus than in healthy tissue.) The hospital records also show that the nurses were directed to watch carefully for and report any tetanic spasms, and several spasms are recorded. Intravenous injections of calcium chloride were given. The wound improved, but tetany spasms are recorded up to Ist June. The records also contain references to swelling in the plaintifi's neck. On 9th June the plain- tiff left the hospital and went home. The wound did not finally close until the end of June or the beginning of July. On 29th June the defendant wrote to the plaintifi's husband, saying that he was sorry the news was not better about the muscle spasms, and that he had informed Dr. O'Hanlon about some recent methods of treat- ment and had sent him up some special injections for him to use. During the succeeding months the plaintiff was treated by injections, sometimes of calcium and sometimes of paroidin - a parathyroid extract. The medical evidence for the plaintiff and for the defendant was that this treatment was essentially a treatment for tetany. On 17th January 1939 Dr. O'Hanlon wrote to the defendant saying that the plaintiff was improving, and that the major attacks, though not less frequent, were becoming less severe, though she had frequent minor spasms which did not leave the muséles involved as sore as before. He reported that she was not able to tolerate the large doses of calcium lactate for more than a month or so, and that she was haviny occasional doses of paroidin and also of morphia. Dr. O'Hanlon saw the plaintiff in February 1939. The plaintiff, her husband and Dr. O'Hanlon gave evidence that the latter stated that he could do nothing further for the plaintiff. He did not see her again until September 1939. In the meantime her husband adminis-

[144]

Dr. G. S. Thompson, another witness for the plaintiff, appears to have extensive medical and surgical knowledge, but no special qualifications with reference to the thyroid gland or the operation of thyroidectomy. He gave evidence supporting that of Professor Welsh, stating that in his opinion the history of the plaintiff's case immediately after the operation, particularly in relation to her temperature, showed that the wound was infected. The hospital records showed a long continuance of that infection, the discharge not ceasing until July 1938; the illness of the plaintiff during 1938 and 1939 was undoubtedly parathyroid tetany ; if a piece of tube were left inside the wound made by the operation it could set up suppuration, as a result of which the tube could become located in an abscess in the tonsil. He gave evidence with respect to the anatomy of the neck, agreeing with witnesses for the defendant that the thyroid gland was located in a particular compartment (the visceral compartment) of the neck which was separated by fascia from a (muscular) compartment containing certain muscles and another (vascular) compartment containing blood vessels, &c. The compartment containing the thyroid gland ended in its anterior upper portion at the hyoid bone and no suppuration could take a foreign body past that anterior portion of the compartment without some destruction of the infrahyoid muscles, but in the rear the compartment extended to the base of the skull. In Dr. Thompson's opinion it was possible for a piece of rubber tube to travel from the thyroid gland to the tonsil - a distance variously estimated by witnesses at from about one inch to as much as five inches (and actually measured in court in the case of the plaintiff as being two and a half inches). Reference was made in evidence to the descrip- tion in Cunningham's Teat Book of Anatomy of the visceral com- partment and the statement therein as to the presence of loose areolar tissue and fat in the neck near the tonsil. The relevant references in the 7th edition are to pp. 1372, 1373, 1374. See also Jamieson, Mlustrations of Regional Anatomy, figure 50, and Tonsil Surgery by R. H. Fowler, (1930), pp. 34 and 49, as to the tonsil lying in a bed of loose areolar tissue separating it from adjoining muscles. The quantity of connective tissue and fat varies with

[145]

71 C.L.R.] OF AUSTRALIA. 457 Dr. Thompson gave evidence that in his opinion the Quirindi 4 ©: oF a Hospital records showed conclusively that the plaintiff had true oe tetany. He said that it was quite possible that. the tube could jockixe travel from the neck to the tonsil without destroying any vital v 3 . Brin, organs and that a psoas abscess provided an example of the travelling rz of pus in an abscess which illustrated in a comparable manner the Latham o.3 effect of pus. He also was of opinion that the fact that the calcium content of the plaintiff's blood in October 1939 was 7.2 milligrams per cubic centimetre, instead of 10 milligrams, supported the opinion that the plaintiff was suffering from tetany brought about by some interference with the parathyroid glands. He said that he was unable to see any other explanation of the calcium deficiency. The hospital records showed that the plaintiff became unconscious on some occasions, and she gave further evidence of unconsciousness during spasms. In Dr. Thompson's opinion unconsciousness did occur in tetany in severe cases. He agreed with Professor Welsh that the wound might close notwithstanding the presence of a foreign body. He gave evidence that it was possible, if stitching were done after a tube was inserted in a wound, for a stitch to catch up the rubber so as to hold it. Dr. Thompson examined the plaintiffs tonsil before the first trial and gave evidence that there was a punched-out canal in the tonsil } inch in diameter and # inch long, and that this indicated that the tonsillar tissue had been killed in some way and had sloughed away. This hole was not the supra-tonsillar recess or fossa or any other of the crypts of the tonsil which appeared in a normal tonsil. A great deal of Dr. Thompson's evidence was attacked in cross- examination, and by contradictory evidence. The plaintiff's case was that the inner end of the tube, at or about the small hole in the tube, was accidentally caught in a stitch ; that the tube, possibly being somewhat perished, broke when it was being removed and that what appeared to the plaintiff, in a condition of exhaustion and distress, to be wire and a piece of swab, were pieces of catgut and a deposit of some kind within the body of the tube ; that the illness of the plaintiff after the operation was explainable by the presence of the tube in tissues of the neck affected by suppura- tion, resulting in an abscess which ulcerated through the tonsil, the piece of tube having moved in the affected tissues and along fascial planes without permanently destroying any vital organs; that Dr. O'Hanlon and the defendant treated the plaintiff for true tetany and that she suffered from true tetany which could be explained only by injury of some kind to the parathyroid glands; that suppuration within and about the capsule of the thyroid gland would produce

[152]

signs. One witness, however, said that, though highly improbable, it was "a remote possibility," and another admitted that it was "a very vague possibility." Some evidence for the defendant was carefully limited to what was described as " anatomical possibility " apparently as distinguished from pathological possibility - and the plaintiff was suffering from a pathological condition. Some of the defendant's witnesses were of opinion that the illness of the plaintiff after the operation was in the first place true parathyroid tetany, but that after about June the condition was not true tetany, but was a condition of hysteria, simulating tetany. It was not disputed that the plaintiff was in fact treated as for true tetany and not as for hysteria. The defendant's witnesses differed to some extent in selecting a point of time at which the true tetany ceased and the hysteria commenced. One witness for the defendant, however, was of opinion that the witness never suffered from true tetany, but was at all relevant times a victim of hysteria. I think I am right in saying that there was no evidence that hysteria would affect the calcium content of the blood. There was much evidence that the plaintiff did sometimes lose consciousness. The defendant's wit- nesses gave evidence that tetany due to parathyroid injury was marked by the feature that the patient did not lose consciousness during spasms, while during hysteria consciousness might be lost on occasions. But these witnesses had to agree that a considerable number of leading authorities expressly stated, as Dr. Thompson had done, that in severe spasms of true tetany consciousness might be lost. Some of the witnesses for the defendant did not agree with statements or diagrams contained in what were admitted to be leading works of authority. I refer to these divergences of opinion as matters which a jury was entitled to take into account, though, as I have already said, if I had to determine the case according to my own opinion, I would have no doubt whatever in deciding for the defendant. It is, however, as I have already said, most important that a judge should not usurp the function of the jury, even if he regards the evidence against the verdict as most cogent, and, indeed, overwhelming in character.

[155]

But it is unnecessary for me to base my decision in this case upon the view which I have just stated, because, in my opinion, there was evidence which, if believed by the jury, can reasonably support the answer given by the jury to the question submitted to them by the trial judge. The answer to this question shows that the jury substantially believed the story of the plaintiff, however improbable that story may appear to be. The description of the piece of rubber tube is based upon the drawing made by the plaintiff, which is a remarkable feature of the case. That drawing shows what looks like a rubber tube with a '' V " cut in it, the tube being torn across the " V" cut, with lines projecting which the plaintiff says looked like wire, " but of course were not wire." 'There was evidence that it was the practice to make a cut in the inner or distal portion of a drainage tube to facilitate drainage. The finding of the jury may legitimately be read, not as stating that there was actually wire in the tube or an actual swab in the tube, but that there projected from the tube some material which looked like wire and which looked like a swab. The jury, believing the plaintiff, only describes what the plaintiff said she believed she saw. As to the size of the tube, much evidence was given to the effect that the whole of a tube would not be longer than 2 inches, but there was also evidence that the length of tubes used varied from time to time, as would naturally be expected, and an illustration of a thyroidec- tomy operation in a book used by the defendant's witnesses - Binnie's Treatise on Regional Surgery, (1917), vol. I., p. 497 - shows a tube in position, the visible projecting part of which appears to be considerably over an inch in length. Some evidence for the defendant admits that a tube used in a modern thyroidectomy operation may be as long as 2 inches. The evidence for the defen- dant as a whole is that tubes used in such operations are practically never longer than 2 inches. But this question of fact was a matter for the jury, and the answer of the jury is " somewhat less than 2 inches." Thus, in my opinion, there was evidence to support the answer of the jury, though I should not have given that answer

[159]

it as highly improbable evidence, upon which a verdict could reason- ably be found for the plaintiff. In his reasons for judgment on this last occasion Davidson J., examining the evidence called for the defendant, expressed the opinion that it established that it was "anatomically and pathologically " impossible for a piece of the tube to travel from the position of the thyroid gland to the tonsil, because vital structures would necessarily have been damaged in the course of such a passage. He was of opinion that the defendant's evidence supplied an explanation of the alleged hole or depression in the tonsil. I agree that there was very strong evidence for the defendant that it was impossible for a piece of rubber tubing to travel from the thyroid gland to the tonsil without destroying important, if not vital, organs. But the evidence was in conflict on this point and also on the question of the existence and probable origin of the hole in the tonsil. It is for a jury, where there is a conflict of evidence, to say which evidence they will accept. This is not a case where, even if the evidence for the plaintiff is accepted, some other undisputed evidence for the defendant explains away the first apparent effect of that evidence, as in De Gioia's Case (1), so that, when the evidence for the plaintiff is supplemented (not contradicted) by the other evidence, it can be seen that there is no evidence to support the plaintifi's case. This is a case of direct conflict of evidence. The conflict was extensive and vigorous. Whatever may be thought of the weight of the evidence given on behalf of the plaintiff, it cannot be described as a mere scintilla. That evidence was, actually held by the Full Court to be more than a scintilla in the case of a prior trial (see (2) ), and it is not suggested that any less evidence was given for the plaintiff at the last trial. But on this occasion it has been decided by the majority of the Full Court that there was no evidence for the plaintiff to go to the jury. It was said, quite accurately, that more evidence was given for the defendant at the fourth trial than at the previous trials. But more evidence for the defendant is not the same thing as no evidence for the plaintiff. No amount of additional evidence for the defendant can have the result of reducing the evidence for the plaintiff to zero.

[214]

This story is strongly criticized and said to be inherently impro- bable. First that a skilled surgeon in order to remove a drainage tube should use considerable force. Ordinarily the difficulty is to keep the tube in position, and Dr. Bell, according to his evidence, secured the tube by one horsehair stitch and a safety pin through the outer end of the tube. The stitch is just snipped with a pair of scissors on the removal of the tube, which is lifted out with a pair of forceps. It was suggested that Dr. Bell must have caught up the tube in some stitching necessary in the course of the operation : hence the necessity of using force to remove the tube. But the neck was in a very sensitive and delicate condition at that time and any violence would break the wound down and tear the muscles or the tissues to which the stitches were attached and cause intense pain. And there was no practical difficulty in removing the broken tube. The wound had not healed and the patient could have been taken up to the operating theatre in proper sterile surroundings and the tube removed, using at most a little anaesthetic in the skin. True it is that a medical witness called for the appellant said that it would have been madness to go after the tube in the circumstances then existing, but fortunately that statement has little relevance to the case and is quite opposed, as experienced surgeons indicated, to elementary surgical principles. And the story is quite inconsistent with the report kept by the nursing sisters in the hospital. There is an entry on 17th March "Tube removed and three sutures." It is true that the nursing sister who was present when the tube was removed could not be identified, but Sister Will (now Helen Melville), who signed the report, stated the routine and the duties of the sisters. "The theatre (i.e. the operating theatre) people say that the tube was put in and we have to see that it comes out. When the tube is removed the sister with the doctor brings it to another sister prefer- ably the senior one just to look it over and get it checked, to check that it is out of the wound. It goes into the report after the check- ing." And finally we find that Dr. Bell was in daily attendance on the appellant after 17th March - and this is confirmed by the nursing sisters' reports - probing the wound to keep the drainage track open and dressing it himself or satisfying himself that the sister had carried out his instructions. All this conduct is inexplicable if any portion of the drainage tube remained in the wound to the knowledge of Dr. Bell or any of the nursing staff. The stinging sensation in the throat to which the appellant above referred, she felt on the left side. And it is also important in the history of the

[239]

The appellant's husband said that on this day (2nd October) he remembered a most desperate spasm, that the appellant was almost black in the face and appeared to be choking, her teeth were locked, clenched, that he could not see inside the mouth but by the action of the throat it looked as if something had come up into the throat. In cross-examination the appellant, I think, made it clear that the "something " which she spoke of burst through her tonsil on the left side, but whether that was made clear in her evidence is imma- terial, for her case was conducted on that footing and medical evidence called on her behalf was directed to the same end. Dr. O'Hanlon, who, as already stated, had been called to see her on 6th October, did not examine the appellant that night, and he did not then notice any external swelling or inflammation. The next day he examined the inside of her mouth back to the base of the tongue, but nothing was revealed, no swelling or any sign of an abscess. On 7th October, however, he sent a report to Dr. Bell which was to this effect, that on the 6th he had been called to see Mrs. Hocking, who was complain- ing of a pain in her left chest and down the middle of the chest, that: clinical examination revealed nothing definite; that Mr. Hocking had given him the following history - that last Monday the appellant had as bad an attack of tetanic spasm as she had ever had, com- plained of the neck, which was swollen, and until Wednesday com- plained of pain and soreness from the neck to the stomach; that swallowing was painful, that he thought she had symptoms of indigestion and gave her castor oil, salts, &c., that on the Thursday she had a bowel action and passed a piece of grey rubber tubing squarely cut on one end and ragged on the other, the tube was partially split up, and stuck in the lumen was what she took to be a small piece of marine sponge about which was twisted a piece of wire, that the appellant had emptied the tube along with the bowel action result in the w.c.

[240]

And he enclosed the sketch of the tube made by the appellant. Dr. 0'Hanlon added that neither he nor Hocking saw the tube but he thought that the appellant's description was too vivid for the article to be imaginary and that he was nonplussed when asked to explain it all, And he discussed the possibility of a piece of drainage tube being accidentally left behind. Ultimately Dr. O'Hanlon in his evidence said that, after consulting books of reference and being satisfied that a surgeon like Dr. Bell would not leave a tube in a wound, he rejected the story. Dr. O'Hanlon, in his letter to Dr. Bell, also stated that the attacks of tetany had become fewer but, nevertheless, that the appellant was still far from well and very unsteady when she tried to walk. On 11th October the appellant herself wrote to Dr. Bell referring to "' the piece of drain tube that was left in my neck " and suggesting that it was at the time she had a tetany spasm that the "tube burst into my gullet " and that she almost choked. On 15th October Dr. Bell wrote to the plaintiff saying that he had heard from Dr. O'Hanlen and found it difficult to explain her last illness or " the piece of drain tube " which she said had passed by the bowel, and he suggested the appellant should come to Sydney for medical investigation in order to see if some medi- cal treatment could not be advised to improve her health. Accord- ingly the appellant went to Sydney, but Dr. O'Hanlon did not see her again before she left. On 25th October the appellant was admitted to St. Luke's Hospital. In hospital she complained of pain in the throat and chest, and inhalations were ordered. She was examined by both Drs. Bell and Ritchie. Dr. Bell found a super- ficial pharyngitis, which looked slightly red, but no swelling or any sign of ulceration of the throat or anything to suggest that any- thing had come through or burst into the throat. Dr. Ritchie found that there was very little wrong with the mouth and throat ; that the appellant had mild tonsilitis on the left side. Dr. Marsh, an experi- enced throat specialist, was requested by Dr. Bell to examine the appellant's throat. He did so on 30th October 1939 and found no evidence of swelling, inflammation or anything of that sort, no sign of ulceration or scarring of the throat, no evidence of a " punched out hole in the tonsil" sufficient to let the tube through, nothing whatsoever consistent with the eruption of a tube through the tonsil or into the throat. But there was evidence of chronic follicular tonsilitis. He prescribed a well-known gargle, Glyco-Thymoline, and a simple paint for the throat, which is confirmatory of his state- ment. Dr. Tebbutt, a pathologist experienced in blood tests, was also requested by Dr. Bell to make a blood test. He did so about 28th October and reported that the results showed no anemia and

[249]

to be observed, is some two years after the appellant said something had burst into the left side of her face, Professor Welsh stated that he had examined the left tonsil and that "' there was a distinct shallow oval depression about half an inch in diameter and about one-eighth inch deep and a distinct scar at the foot of that depression. The tonsil was very ragged, strips of tonsillar tissue were running from the tonsil to the back of the throat which indicated some kind of vol- canic eruption had taken place from the tonsil, it was consistent with an abscess having burst from the tonsil." In August 1942 he also had a visual examination, and in about the beginning of December 1943 he saw a probe put in the tonsil by Dr. Thompson and pass right through the tonsil to the back of the throat. Dr. Thompson also examined the appellant shortly betore the first trial - December 1941. In answer to the question : "" When you first examined the tonsil what did you see ?"" he said: " Nearly at the upper end of the left tonsil there was a punched out canal. It was a quarter of an inch in dia- meter three-quarters of an inch long going down to the pharyngeal wall through the tonsil. I ascertained the length with a probe and glass" (which he produced). He also said that what he saw was consistent with an abscess having burst through and consistent with a rubber tube having come through. Since that time he had made several examinations - half a dozen - but the canal had at the time he was giving evidence - December 1943 - considerably retracted. All this points to the bursting of some abscess about 1941 and not the bursting of an abscess in October 1939, which must have con- siderably contracted by December 1941. The observations of Drs. Bell, Ritchie, Marsh and Tebbutt in October 1939, which I have already set forth, do not directly conflict with this evidence, for they refer to a time within a few weeks of " something bursting into the left side of the appellant's face." But the observations of Dr. Thompson cannot be reconciled with the observations of other medical witnesses, though I do not think those of Professor Welsh are so clearly inconsistent with those other observations, for he only speaks of a distinct shallow oval depression on the left tonsil one eighth of an inch deep and a distinct scar at the foot of that depres- sion.

[406]

According to this witness there are anatomical obstacles in the region of the thyroid capsule and at the level of the hyoid bone ; and the arrangement of muscles forming the pharyngeal wall in the region of the tonsil was another obstacle. Dr. Thompson gave an account of the course by which, in his opinion, the object about which the plaintiff gave evidence moved from the thyroid capsule into her mouth, His evidence does not agree with the evidence which Professor Shellshear gave about the anatomy of the neck and, as I have said, the evidence of Professor Shellshear was accepted by the plaintiff's only other expert witness, Professor Welsh. The jury could not possibly get as adequate an account of the anatomy of the neck from Dr. Thompson's evidence as from Professor Shellshear's evidence or the pictures and drawings which are in evidence. The jury could not possibly have any reasonable justification for declining to give credit and weight to the evidence of Professor Shellshear. It may be observed that Dr. Thompson's evidence is that the tube penetrated the pharynx. It is not clear that he said precisely that it went through the tonsil. No reliance was placed on any medical condition at any other place than the tonsil to support the hypothesis that the foreign object came into the mouth. The evidence of the expert witnesses called by the defendant, read from the transcript, is a refutation of the evidence of Professor Welsh and Dr. Thompson. But I decide the matter not on the weight of the evidence on the defendant's side, but on the question of the sufficiency of the evi- dence on the plaintiff's side, that is as a matter of law. The nature and arrangement of the many parts of which the neck consists are facts established by the pictures and drawings in the evidence. Having regard to these facts, I think that the jury could not reason- ably find on the evidence which Professor Welsh and Dr. Thompson gave in this case, that the object which the plaintiff says that she

At a glance

Court

Decision date

Before

Source

Judgment (411 paragraphs)

Parties