KIEFEL CJ, BELL AND KEANE JJ. On 21 July 2002, Jennifer Masson, a 25-year-old chronic asthmatic, suffered a severe asthma attack while visiting friends in Cairns. Asthma is a disease that is characterised by constriction of the bronchial passages and which, in severe cases, may lead to life-threatening deprivation of oxygen. Ambulance officers treated Ms Masson at the scene before conveying her to Cairns Base Hospital. Unfortunately, Ms Masson sustained severe, irreversible brain damage as the result of deprivation of oxygen before she arrived at the hospital. She lived in a vegetative state for the next thirteen and a half years while being cared for at home by her parents.
Background and procedural history
Proceedings were commenced in the Supreme Court of Queensland (Henry J) on Ms Masson's behalf by her litigation guardian claiming damages in negligence against the State of Queensland ("the State") as the provider of ambulance services under the name Queensland Ambulance Service ("QAS"). It was alleged that the ambulance officers' failure to promptly administer adrenaline to Ms Masson was a negligent omission for which the State was vicariously liable. The failure was said to be contrary to the instructions in the QAS Clinical Practice Manual ("the CPM"). Alternatively, it was alleged that, if the officers were not themselves negligent, the training and instruction given to them by the QAS was inadequate such that the State bore direct liability for the failure to administer adrenaline to Ms Masson earlier. Following Ms Masson's death, the claim survived in the hands of her estate. The trial was confined to the question of liability, the parties having agreed on damages in the sum of $3,000,000.
At the time ambulance officers arrived at the scene, Ms Masson was in respiratory arrest. Clinton Peters, an intensive care paramedic, was the officer who was responsible for making the treatment decisions. Mr Peters elected to administer intravenous ("IV") salbutamol in the initial phase of Ms Masson's treatment. Salbutamol, like adrenaline, acts as a bronchodilator.
The CPM's asthma flowchart ("the flowchart") listed pre‑hospital treatment options for asthmatic patients in three categories, which, in descending order of severity, were labelled "Imminent Arrest", "Severe Asthma" and "Moderate Asthma". Ms Masson was within the "imminent arrest" category. The guidance that the flowchart provided in relation to patients in this category was to "[c]onsider adrenaline". The guidance for patients in the "severe asthma" category was to "[c]onsider [s]albutamol".
A critical factual issue at the trial was whether Mr Peters had considered administering adrenaline to Ms Masson at the outset. The trial judge found that he had and that he had decided against doing so because Ms Masson had a high heart rate (tachycardia) and high blood pressure (hypertension). His Honour found that in 2002 there was a responsible body of opinion within the medical profession which supported the view that Ms Masson's high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to adrenaline at the time of initial treatment. The treatment of Ms Masson was held not to have fallen below the standard of care to be observed by ambulance officers. The claim was dismissed.
The respondent appealed to the Court of Appeal of the Supreme Court of Queensland (Fraser and McMurdo JJA and Boddice J). Contrary to the trial judge's finding, the Court of Appeal found that Mr Peters departed from the guidance of the CPM by failing to consider the use of adrenaline and was negligent in not administering adrenaline to Ms Masson at the outset. In their Honours' view, it was inconsistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM even if following that guidance would have entailed risks in the circumstances. In any event, their Honours held that the trial judge's finding, that in 2002 there was a responsible body of opinion in the medical profession supporting the administration of salbutamol to a patient in Ms Masson's condition, was not supported by the evidence. Moreover, had there been such a body of opinion, and had Mr Peters been aware of it, given that adrenaline alone was identified in the CPM for an asthmatic patient in imminent arrest, the decision not to administer adrenaline would nonetheless have amounted to a want of reasonable care. The appeal was allowed, and judgment given for the respondent in the sum of $3,179,384 (inclusive of interest to the date of judgment).
On 15 November 2019, Gageler and Nettle JJ granted the State special leave to appeal. The State contends that the Court of Appeal departed from settled principle by treating the CPM as determinative of the standard of care. It is also contended that the Court of Appeal was wrong to overturn the trial judge's findings that: (i) Mr Peters considered the administration of adrenaline in accordance with the CPM; and (ii) in 2002 there was a responsible body of opinion within the medical profession supporting the administration of salbutamol to a patient in Ms Masson's condition.
For the reasons to be given, both findings should be restored. The trial judge was correct to hold that the administration of IV salbutamol to Ms Masson in all the circumstances was within the range of reasonable clinical judgments that an ordinary skilled intensive care paramedic might make. Restoration of the first finding makes it unnecessary to address the State's further submission, that even if Mr Peters did not consider administering adrenaline as the CPM required, the actual treatment was within the range of reasonable responses to be made by an intensive care paramedic to Ms Masson's presenting conditions. It follows that the appeal must be allowed, the orders of the Court of Appeal be set aside and those of the trial judge dismissing the respondent's claim be restored.
The standard of care
These events took place before the enactment of the Civil Liability Act 2003 (Qld) and so the determination of the claim was governed by the common law. Mr Peters commenced full-time employment as an ambulance officer in 1996 having worked as a volunteer ambulance officer for the preceding six years. In 1996 Mr Peters became authorised to administer salbutamol. In 2000, following further study, Mr Peters became authorised to administer adrenaline. In 2001, he qualified as an intensive care paramedic. His training in the intensive care paramedic program included study in the pharmacological treatment of asthma.
The standard of care expected of Mr Peters was that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency. Self-evidently, this is a less exacting standard than that expected of specialists in emergency medicine. The Court of Appeal correctly observed that intensive care paramedics cannot be expected to make fine professional judgments of a kind that require the education, training and experience of a medical specialist. This is not to say, however, that an intensive care paramedic is not expected to exercise clinical judgment. The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.
The Court of Appeal was wrong to say that had there been a body of opinion that adrenaline should not be given to a patient in Ms Masson's condition with a high heart rate and high blood pressure, and had Mr Peters been aware of that opinion and acted upon it, where adrenaline was the drug indicated in the CPM, then by reason of that guidance he would have failed to take reasonable care. The CPM was not expressed to be, and was not, determinative of the range of reasonable responses for an intensive care paramedic treating an asthmatic patient in imminent arrest who presented with Ms Masson's symptoms.
The evidence of the treatment
On the night of 21 July 2002, Ms Masson drove to the home of her friend, Jonathon Turner, in Brinsmead, Cairns. She was wheezing badly as she walked into the house. She announced that she was returning to her car, apparently to look for her Ventolin puffer. When she returned to the house, she asked Mr Turner to take her to the hospital. As they walked outside, she collapsed on the front lawn. Another friend who was present, David Denman, contacted emergency services while Mr Turner performed mouth-to-mouth resuscitation.
Mr Denman's call was received at 22:52. Ambulance officers arrived at the scene six minutes later at 22:58. Two ambulance crews attended. Mr Peters was assisted by third-year paramedic Tanya Stirling. The second crew comprised an advance care paramedic and a first-year paramedic. At the time of Mr Peters' arrival, Ms Masson was lying supine on the grass while a male was performing external compressions on her. The lighting was poor, and bystanders were enlisted to assist by holding torches to enable Mr Peters and his colleagues to carry out their work. Mr Peters was told that Ms Masson was an asthmatic and that she had suffered an attack after using her Ventolin puffer to no effect.
Mr Peters observed that Ms Masson's eyes were open, and her pupils were responsive to light. She had lockjaw (trismus), her face was blue (central cyanosis) and she was flaccid and unresponsive. Her respiratory rate at the time the ambulance officers arrived was only two retracted or laboured breaths per minute. Mr Peters described her respiratory rate as being almost non-existent. The entry recorded on the Ambulance Report Form ("ARF") described Ms Masson as being in respiratory arrest at the time of the officers' arrival at the scene. She had a score of six on the Glasgow Coma Scale ("GCS"). Her blood pressure was high, 155/100 (systolic/diastolic readings). Mr Peters checked her carotid pulse and detected a very high heartbeat of 150 beats per minute.
At Mr Peters' direction, Ms Masson was connected to a heart monitor, which revealed that her sinus tachycardia was the same rate. Tachycardia is a rapid heartbeat of greater than 100 beats per minute. It is a condition that is the opposite of bradycardia, which describes a heart rate of less than 60 beats per minute.
Mr Peters concluded that Ms Masson was "hypoxic and deprived of oxygen and required oxygen immediately". He arranged to ventilate and oxygenate her by the application of a bag valve mask. At the same time, Mr Peters applied an intravenous cannula into Ms Masson's elbow pit, and at 22:59 he commenced administering salbutamol by this means. Between 22:59 and 23:20, Mr Peters administered eight doses of salbutamol - amounting to a total dose of two milligrams. This was twice the maximum dose recommended by the CPM.
Mr Peters considered that the salbutamol improved Ms Masson's condition; initially upon auscultation (listening for sounds within the lung fields), after hearing one expiratory wheeze with a single breath, officers "were unable to detect any breath sounds ... basically, her chest was very silent with no breath sounds and she was very difficult to ventilate". With the administration of multiple doses of salbutamol Ms Masson "went to an inspiratory/expiratory squeak, then from an inspiratory squeak to an expiratory wheeze, then an inspiratory wheeze/expiratory wheeze" and Mr Peters was informed that she was becoming easier to ventilate. Mr Peters assessed that Ms Masson's respiration was improving because the salbutamol was effective in bronchodilating her airways and allowing air movement in and out of her lungs.
The apparent improvement in Ms Masson's symptoms continued through to, and beyond, the point at which she was placed in the ambulance and transportation to the hospital commenced. The ARF records that just before departure, at 23:14, Ms Masson had a regular pulse rate of 94, improved, but still high blood pressure of 140/100, and a respiratory rate of 14, which was still retractive, and her colour was normal, rather than cyanosed. Her GCS score remained at six. Transportation from the scene commenced at 23:15, seventeen minutes after the ambulance crew arrived.
Mr Peters noted that after transportation commenced there was an unexpected increase in Ms Masson's heart rate to 136 beats per minute. This was at 23:17. At this time, Ms Masson was cyanosed and her GCS score was down to three. By 23:19 her heart rate had dropped markedly to 40 beats per minute, her respiratory rate had reduced to 12 retractive breaths per minute and blood pressure was absent. Mr Peters assessed cardiac arrest as imminent. At 23:20, Mr Peters administered 300 micrograms of adrenaline. He explained his reason in these terms:
"I then changed my pharmacology. I changed from IV salbutamol to low dose IV adrenaline … in accordance with the clinical practical manual for adrenaline at that time. … Her vital signs had deteriorated to the point where adrenaline was the most appropriate drug for her clinical presentation … [S]he was now [bradycardic]. She had a slow heart rate; less than 60. And - although it's not recorded there, she either was or about to be hypotensive."
Mr Peters administered adrenaline in three 100-microgram aliquots (portions), 60 seconds apart. The initial dose had no effect. Intubation commenced in the meantime. A second dose administered at 23:24 produced some return of cardiac output but only for 30 seconds or so. Mr Peters diagnosed that Ms Masson was suffering bilateral tension pneumothoraces, a condition in which air is trapped in the pleural space causing the lung to collapse. Mr Peters directed the ambulance to stop and he conducted an emergency left-side thoracostomy (an incision of the chest wall allowing the trapped air to escape). This achieved the decompression of the left lung and was accompanied by immediate improvement in Ms Masson's heart rate and blood pressure. Given this improvement and the advice that the ambulance was within a minute of arrival at the hospital, Mr Peters decided against attempting a right-sided thoracostomy, in favour of the ambulance proceeding directly to the hospital.
On arrival at Cairns Base Hospital, Ms Masson was centrally and peripherally mottled and cyanosed. She had no respiratory effort. There was no carotid pulse. She was bagged with resistance with inspiration. Adrenaline was administered at 23:41, 23:43 and 23:45, and this provoked an immediate response with a carotid pulse becoming discernible and increasing. Hospital staff attended to other measures, including relieving the right-sided pneumothorax. Ms Masson was transferred from the Emergency Department to the Intensive Care Ward at 00:30.
The CPM
The stated object of the CPM was the provision for ambulance officers at all levels of clinical practice with a comprehensive guide to pre-hospital treatment and care. Notably, the CPM was said to depart from earlier "Clinical Protocols" in its emphasis on the exercise of officers' "good judgement". It incorporated sections on Patient Care Principles, Case Management Guidelines, Clinical Pharmacology and Clinical Procedural Competencies.
The Patient Care Principles incorporated a section titled "Clinical Judgement / Problem Solving". In this section it was explained that the ambulance officer's "clinical judgment relies on a mix of knowledge, skill, experience, attitudes and intuition". Ambulance officers were advised to "weigh up the pro[s] and cons of each treatment option and decide what is best for this particular patient". The reader was advised that:
"The [CPM] is designed to assist clinical judgment, using the problem solving approach, to achieve best practice. It is acknowledged that every situation is different. Deviations from the guidelines will occur but must be documented and audited, and officers must be able to justify that their treatment was in the patient's best interest."
The Case Management Guidelines identified diagnostic patterns for a range of conditions and were designed to assist ambulance officers in making a provisional diagnosis. Flowcharts for each condition set out the appropriate patient care options. Diamond shaped icons represented key clinical decision points and arrows to the right of each diamond icon directed the reader to a shaded text box that listed treatments and the drug or drugs to be considered.
The asthma flowchart was central to the respondent's case. It suffices for present purposes to explain that the flowchart listed, in descending order of severity, three key clinical decision point diamond icons. The first diamond icon was headed "Imminent Arrest". Inside this icon was the text "GCS 50% O2." The arrow to the right pointed to a shaded text box, which provided:
"- High concentration O2 therapy