1 POWELL JA: I agree with Studdert J
2 HEYDON JA: I agree with Studdert J.
3 STUDDERT J: The appellant, Barbara Anne McCarthy, brought proceedings in the District Court against the first respondent, Iain Kidd, and the second respondent, the Hunter Area Health Service. Each respondent was sued in negligence and the appellant claimed damages for injuries allegedly sustained in the course of her treatment whilst a patient at Newcastle Western Suburbs Hospital.
4 It is common ground that the appellant was admitted to hospital in August 1984 under the care of the first respondent and that the appellant underwent a hysterectomy. The operation was performed on 9 August 1984 and the appellant remained in hospital until 17 August 1984. Whilst in hospital, the appellant had six injections of an iron supplement, Inferon. Whilst her claim was pleaded more broadly, it was the appellant's case at trial that the first defendant was negligent in not warning her of risks associated with the injections and that the second respondent was negligent in the giving of the injections. The site of the injections in each case was one or other of the appellant's buttocks and it was her contention that direct injury had been caused to her gluteal nerves by reason of the injections. Alternatively, it was contended that the injections caused fibrosis with or without compromise of the gluteal nerves. The appellant presented at trial and to many doctors before trial complaining of severe symptoms.
5 The appellant's case was heard by his Honour Judge Rolfe in October 2000 and judgment in favour of the respondents was delivered on 3 November 2000.
6 When this appeal was commenced, the appellant did not have the benefit of legal representation and the original notice of appeal and the first amended notice of appeal were prepared by her. The first notice expressed no grounds. Grounds were first stated in the first amended notice. However, ultimately, the appellant was represented by Mr Campbell of counsel and leave was given to the appellant to rely upon a further amended notice of appeal presented by counsel. Mr Campbell did not argue any of the grounds of appeal set out in the first of the amended notices of appeal. The grounds there expressed were bound to fail, although what was ground two originally was taken up in the amended grounds of appeal, and in particular in paras 3 and 4.
7 Before considering the various grounds of appeal upon which reliance was placed, it is desirable to record short details of the appellant's medical history. Judge Rolfe dealt with this extensively in the course of his judgment and no challenge was made to the accuracy of his Honour's judgment in this regard. I therefore propose to be somewhat briefer in this review of the appellant's history than I might otherwise have been.
8 The appellant was born on 23 February 1943 and is a married woman who has given birth to eight children, seven of whom survive. The appellant has also had two miscarriages.
9 Evidence disclosed, and his Honour found, that the appellant had a long term problem of anaemia diagnosed at least by January 1984 as being caused by menorrhagia. In the 1960s the anaemia was treated by the ingestion of iron tablets, but as long ago as January 1970 the appellant was given an injection of iron. The appellant had many injections of iron thereafter, although his Honour was unable on the evidence to determine how many injections of iron the appellant had had prior to her admission to hospital in August 1984. For a period of some years from 1973 onwards, the appellant lived in Queensland, returning to New South Wales towards the end of 1978. There is a gap in the medical history for those years in Queensland.
10 Having returned to New South Wales, the appellant came under the care of general practitioners at Nelson Bay and was given iron injections in the course of consulting Dr Pidcock and Dr Pacey of Nelson Bay.
11 Late in 1983 the appellant consulted a general practitioner at Warners Bay, Dr Wijesena. Dr Wijesena gave the appellant iron injections on several occasions in January 1984. He referred the appellant to Dr McMahon, a specialist gynaecologist. Dr McMahon advised the appellant on 11 January 1984 to have a hysterectomy but apparently the appellant was reluctant to have the procedure at that time. Following his consultation, Dr McMahon wrote to Dr Wijesena's locum, Dr Thine, reporting:
"I discussed the position of hysterectomy with her and she wasn't sure about this initially but said she wanted a D. and C. I told her that she already had six curettes and this hadn't done any good so I couldn't see the point in doing another one. The other option of course was to put her on the Pill but she wasn't too fussed about that.
Since then I have had several phone calls from her because she said the iron pills make her ill and she said would do much better on iron injections.
She is coming back to you for her iron injections.
In the mean time she has now decided that she wants a hysterectomy.
I have organised her for a haemoglobin in two weeks time and if this is satisfactory I can then organise her for hysterectomy."
12 In 1984 the plaintiff passed from the care of Dr Wijesena to Dr Marsh. Dr Marsh said that the appellant presented to him with a history of having iron injections and he was told by her that iron was "either poorly tolerated or ineffective in maintaining her haemoglobin levels". Dr Marsh gave the appellant at least one iron injection, although the appellant herself said that he gave her more than one injection.
13 Dr Marsh referred the appellant to Dr Kidd on 6 May 1984 to arrange for a hysterectomy procedure and this referral led to the appellant's admission to hospital the following August.
14 In summary then, it was apparent from the history that emerged on the hearing and which was reviewed by the judge in his judgment that the appellant had had many iron injections over many years prior to her admission to hospital in August 1984. Precisely how many injections the judge was unable to determine because there were what he described as "substantial gaps in the medical records" and the appellant "is not a good historian".
15 After the hysterectomy was carried out the appellant had six injections. The first respondent had proposed that the iron be administered intravenously but the appellant was unwilling for this to happen. According to Sister Kaczor, one of the hospital staff, she spoke to the resident doctor, Dr Cooke, who changed the medication, prescribing Inferon to be administered by way of injection. In referring to Sister Kaczor's evidence, I do so mindful that his Honour accepted her evidence and there can be no challenge to that finding. Intramuscular injections were given by nursing staff of the second respondent on 12 August, 13 August, 14 August, 15 August, 16 August and 17 August 1984.
16 The judge rejected the case presented by the appellant that direct injury to her gluteal or sciatic nerve had been occasioned as a result of one or more of the injections administered in August 1984. Evidence was given by Dr Hinde, a specialist obstetrician and gynaecologist, to the effect that had one of the injections caused nerve damage a complaint of pain would have been instantaneous, and his Honour accepted the evidence by the nurses who administered the six injections to the effect that there was no complaint at the time Dr Hinde would have anticipated.
17 Mr Campbell did not seek to challenge on this appeal his Honour's finding that none of the six injections administered in hospital had caused nerve damage. Mr Campbell accepted that the trial judge relied upon what he saw and heard from the witnesses called and that the judge preferred the evidence of the second respondent's witnesses to that of the appellant. Mr Campbell further accepted that this Court could not properly disturb this finding.
18 The judge made a finding against the first respondent (which the appellant also relies upon against the second respondent) that the doctor did not warn the appellant of any risks involved in intramuscular iron injections, but his Honour found that the appellant would not have heeded any warning had one been given by the first respondent.
19 Finally, his Honour was not satisfied that the appellant was suffering from fibrosis as a consequence of the injections administered in August 1984. It was for these reasons that the appellant's action failed.
20 I now turn to a consideration of the various grounds of appeal argued by Mr Campbell. They are as follows:
"1. In determining that the Appellant had not discharged the onus of proof (Red 38) on the causation issue his Honour erred in directing himself as to the factual question too narrowly.