Primary judge's response to the medical evidence
59Hoeben J has extracted all of the relevant passages in a comprehensive fashion. As I read the extensive judgment at first instance, the material passages occur in two separate sequences. The first sequence concerns an examination of the evidence of Professors Iredell and Eisen. Particular attention in the appeal focussed on paragraphs 29 to 33. They have been set out in Hoeben J's judgment, but, for my purposes, I will repeat them here:
29. Associate Professor Eisen said:
"It appears highly likely that there is a direct relationship between the injection of anti inflammatory and local anaesthetic into the region of the latero epicondyle of the right elbow on 25 November 2005 and subsequent intra muscular abscess in the same region that became symptomatic around 12 December 2005."
30. However, notwithstanding these findings he then said, without clear explanation, that he thought it was more likely that the bacteria arose from a gastrointestinal source and localised to the region of the pre-existing inflammation.
31. Associate Professor Eisen's opinion incorporated information provided to him by the defendant's solicitors.
32. Neither Dr Iredell or Associate Professor Eisen gave oral evidence. Despite the view of Associate Professor Eisen that the bacteria arose from a gastrointestinal source there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November.
33. I find on the balance of probabilities that the infection was caused when the defendant gave the plaintiff a cortisone injection on 25 November 2005. I reach this conclusion because of the opinions of both Associate Professor Eisen and Dr Iredell. I am also satisfied on the evidence of the plaintiff of the contemporaneous nature of the development of the condition to the injection itself.
60The principal issue at trial was ultimately considered and determined by the primary judge at paragraphs 83 to 86. I shall set these findings out in full:
83. I have found that the plaintiff's recollection of 25 November should be preferred to those of the defendant where those recollections conflict. I accept that the plaintiff's version is more likely. I observed the plaintiff carefully as she gave her evidence and I am satisfied that I can rely upon her recollection.
84. It was submitted on behalf of the plaintiff that the defendant's breach of duty was touching an area that had not been swabbed or disinfected and that in doing so the defendant transmitted into the injection site bacteria which caused the infection streptococcus milleri. It was submitted that the defendant thereby failed to adhere to his usual procedure.
85. I find that the evidence of the plaintiff was consistent with the letter of instruction sent to Dr Iredell. Therefore, the opinion of Dr Iredell was given on the basis of accepted facts. I accept that the infection occurred when the injection was being administered. I am satisfied that as submitted by counsel for the plaintiff the defendant did not use the material in exhibit 3 described as a bluey. I am also satisfied that after he swabbed the area he proposed to inject he felt around that area, including an area that had not been cleaned. In my opinion, on the probabilities he did not use his usual procedure to keep the area where the injection was to be given properly disinfected. In this respect, he breached his duty of care.
86. In view of the findings I have made as to the evidence of Dr Walsh the defence under section 5O is rejected. The risk could have been avoided by the use of reasonable care. There will be a verdict for the plaintiff on liability.
61His Honour then stated that he was satisfied that, but for the failure of the defendant to properly disinfect the area where the injection was to be inserted, the plaintiff would not have suffered the infection (section 5B Civil Liability Act 2002 ).
62The principal question, as I see it, is whether the primary judge was factually wrong in dismissing the opinion of Professor Eisen on the basis that "there was no medical evidence that supported this finding" and "that the weight of the medical evidence supported" Professor Iredell's opinion. More broadly stated, the issue is whether his Honour failed to analyse properly the competing opinions of the infectious disease specialists and, if possible, reach a conclusion on the basis of that analysis. In both these respects, Hoeben J believes that error has been demonstrated.
63In the examination of this issue it is, as always, necessary to read the primary judge's decision fairly. It is important not to read passages in isolation, or to read the decision selectively: Dobler per Giles JA at [71].
64There could have, of course, been no error in his Honour's finding that the infection was caused at the time the defendant gave the cortisone injection to the plaintiff on 25 th November 2005. Both experts were, as the primary judge noted, in agreement on this point. But the central medical issue was whether the infection arrived by blood stream seeding, or contamination as a direct consequence of faulty technique in giving the injection. Contrary to Hoeben J's views on this point, I consider that the primary judge did not misunderstand or overlook the fact that this was the issue raised in Professor Eisen's reports. He expressly recognised it as such. Although his Honour's conclusions on this central medical issue are expressed sparingly, a fair reading of his decision is that he intended to convey the proposition that he accepted Professor Iredell and rejected Professor Eisen, because the latter could not point to any symptoms or signs exhibited by the plaintiff so as to justify the blood stream seeding conclusion Professor Eisen favoured. After all, that was the view that had been expressed by the plaintiff's expert. As well, the primary judge, it seems to me, intended to convey, when the judgment is read as a whole, that his acceptance of the plaintiff's version (and his rejection of the defendant's version) persuaded him that it was much more likely, on the probabilities, that Professor Iredell was right in selecting faulty technique as the direct cause of the contamination. After all, the very event had happened (according to the factual findings) that Professor Iredell thought most convincing on the causation issue.
65In addition, the primary judge, although he did not expressly say so, may have intended to convey the proposition that Professor Eisen's statement in his report of 10 th December 2009 - "if the plaintiff's version as set out in the briefing letter to Professor Iredell is accurate, this does not alter my opinion" - was not sufficient to outweigh the matters relied on by Professor Iredell. After all, Professor Eisen had said no more in his second report than that "SM is not a member of the normal skin flora and would not have been present on the plaintiff's arm unless it was contaminated with saliva. This is not indicated by the plaintiff's version of events". Professor Iredell adequately responded to this, and to other matters, in his last report of February 2010. As I say, it is likely that the primary judge thought that this response was a complete answer to the earlier opinion expressed by the defendant's expert. For my part, I think there was sufficient material in Professor Iredell's reports to enable the primary judge to accept the opinions he expressed on causation in preference to those stated by Professor Eisen. To that extent, I am in disagreement with Hoeben J. It was, of course, necessary for the primary judge to state that this was the situation and to give reasons which exposed why he came to the view he did.
66The question which arises in the present matter may be simply stated: whether the reasons given by the primary judge, on the medical issues, were sufficiently adequate in that regard ( Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 per Mason P; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278, 279 per McHugh JA).
67The extent and scope of a trial judge's duty to give reasons depends upon the circumstances of the individual case ( Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). It is no doubt, to some extent, a valid criticism of the trial judge's reasons on the medical issue that they were sparingly expressed. The central issue in the trial, however, was the method of giving the injection. The primary judge made it quite clear why it was that he accepted the plaintiff in this regard, and why it was he rejected the defendant. The medical issue fell to be largely determined as a consequence of this finding. As I have said, the plaintiff's expert thought that the more likely cause of the abscess was direct contamination if the injection had been given in the absence of a clean technique. The defendant's expert thought that remote seeding was more likely because infection by inoculation was uncommon. The plaintiff's expert said, however, that there would need to be evidence of some symptoms or signs, if Professor Eisen's views were to prevail. It was against this background that the primary judge held "there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November". I accept that more could have been said, but, on the other hand, the defendant could be in no doubt as to why it was he lost this case. The proper administration of justice requires that reasons be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and secondly, that will not, effectively, frustrate the losing party's right of appeal ( Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666 - 667). The reasons given by the primary judge in this case, although briefly stated, were sufficient, in my opinion, so as to satisfy these criteria. In my opinion, the verdict in favour of the plaintiff should stand.
68The orders which I propose are as follows:
(1) That the appeal be dismissed;
(2) That the appellant pay the respondent's costs of the appeal.
69HOEBEN J:
It is with considerable regret that I am obliged to differ from the conclusions arrived at by Beazley and Whealy JJA in this appeal. My reasons for so differing are as follows.
Subject matter of appeal
70At all material times the applicant (Dr Sarian) was the opponent's (Ms Elton) treating general practitioner. At that time Dr Sarian had been a general practitioner for over 30 years. His doctor/patient relationship with Ms Elton had existed since 2002.
71Ms Elton was a married woman born in 1964. Having raised her children, she re-entered the workforce in 1990 and thereafter worked as a cleaner and a shop assistant, sometimes on a fulltime basis and sometimes on a part-time basis. Through no fault of her own, she lost her job in August 2005 and thereafter was looking for work.
72By way of further background, Ms Elton had injured her neck in a motor vehicle accident in 1987 and in 2005 was continuing to experience some symptoms from that injury. She had also suffered from arthritis in various parts of her body for many years and from time to time required medical treatment to reduce the pain and discomfort caused by that condition.
73On 31 August 2005 she consulted Dr Sarian complaining of a painful right elbow. Dr Sarian injected her right elbow with cortisone and the pain in the elbow subsequently reduced.
74By 25 November 2005 the pain in the right elbow had returned and was adversely affecting Ms Elton's ability to obtain employment. On that date she again attended Dr Sarian at which time he administered a further cortisone injection. Ms Elton said that over the next few days the pain in her right elbow began to subside but towards the end of the second week after the injection, she began to feel weakness and pain in the muscle below the area where the injection had been given.
75Ms Elton said that the pain in her right arm worsened and it became red and swollen, as well as extremely painful and weak. On 12 December 2005 she attended Dr Sarian's surgery. After examining her arm Dr Sarian referred her to a specialist, Dr Preketes, who admitted her to Nepean Hospital the same day.
76A number of tests were carried out at the hospital as a result of which an abscess was discovered and drained. A culture taken from the abscess identified the bacteria as Streptococcus Milleri (SM). Ms Elton remained in hospital until 22 December. She said that the wound took months to heal and left a scar. It was her evidence that following this procedure her right arm was weaker than before.
77Ms Elton brought proceedings against Dr Sarian in negligence in the District Court. She sought damages for the physical and psychological effects of the infection which she said that she contracted when he injected her right arm with Cortisone on 25 November 2005.
78The trial commenced before Delaney DCJ on 24 May and concluded on 25 May 2010. The only oral evidence was that of Ms Elton and Dr Sarian. In Ms Elton's case reports were tendered from Professor Iredell, who was a specialist in infectious diseases and a microbiologist. In Dr Sarian's case reports were tendered from Dr Walsh, a general practitioner, and from Professor Eisen, a specialist in infectious diseases and a microbiologist. None of the doctors gave oral evidence in the trial.
79On 6 September 2010 his Honour published his reasons for judgment. The orders made by his Honour were:
(i) Verdict and judgment for Ms Elton against Dr Sarian in the sum of $74,649.03.
(ii) Dr Sarian to pay the respondent's costs of the proceedings.
80Dr Sarian seeks leave to appeal against his Honour's judgment as to liability. The application for leave to appeal and the appeal were heard together.
Proceedings in District Court
81His Honour identified the liability issues as follows.
(a) The cause of the infection.
(b) Breach of duty of care.
82In relation to medical causation, his Honour summarised the evidence of Professor Iredell:
"25 Dr Iredell went on to say that the description given by the plaintiff was that clean gloves touched skin which had not been disinfected and would therefore themselves be contaminated and would have secondarily contaminated the skin at the site of the injection with bacteria from the unprepared skin. The needle would then have passed through an area which was no longer disinfected and therefore at much greater risk of introducing infection."
83In respect of Professor Eisen his Honour said:
"29 Associate Professor Eisen said:
"It appears highly likely that there is a direct relationship between the injection of anti-inflammatory and local anaesthetic into the region of the latero epicondyle of the right elbow on 25 November 2005 and subsequent intra-muscular abscess in the same region that became symptomatic around 12 December 2005."
30 However, notwithstanding these findings he then said, without clear explanation, that he thought it was more likely that the bacteria arose from a gastrointestinal source and localised to the region of the pre-existing inflammation.
31 Associate Professor Eisen's opinions incorporate information provided to him by the defendant's solicitors.
32 Neither Dr Iredell nor Associate Professor Eisen gave oral evidence. Despite the view of Associate Professor Eisen that the bacteria arose from a gastrointestinal source there was no medical evidence that supported this finding and the weight of the medical evidence supported a finding that the plaintiff contracted the infection when the defendant injected her with cortisone in November."
84His Honour expressed his conclusion on the issue of medical causation as follows:
"33 I find on the balance of probabilities that the infection was caused when the defendant gave the plaintiff a Cortisone injection on 25 November 2005. I reach this conclusion because of the opinions of both Associate Professor Eisen and Dr Iredell and I am also satisfied on the evidence of the plaintiff of the contemporaneous nature of the development of the condition to the injection itself."
85In relation to the second question - breach of duty of care - his Honour reviewed the oral evidence. The principal difference between the evidence given by Ms Elton and that of Dr Sarian related to how the injection was administered on 25 November. Ms Elton said that Dr Sarian had first swabbed the area around her elbow with an alcohol swab and then wearing gloves, had felt outside the area which had been swabbed and then touched the swabbed area as he administered the injection.
86His Honour characterised the evidence of Ms Elton as follows:
"41 The plaintiff was, as I said, vigorously cross-examined about her recollection of the procedure she described above and the instructions she had given to her solicitors.
42 Notwithstanding the searching cross-examination the plaintiff maintained her version of events given in the evidence in chief and I am satisfied that she has an honest belief that this version is accurate."
87Dr Sarian's evidence was that he palpated the area where he was going to inject using the tip of his index finger. He said that he was looking for appropriate soft tissue in which to insert the needle. He said that when performing the palpation procedure, he was not wearing gloves. He found a safe area to inject and he moved away to prepare the injection.
88After having prepared the injection, Dr Sarian said that he put a pad on Ms Elton's abdomen and placed on it the items he was going to use and then put his gloves on. He then swabbed the site of the injection with a Betadine swab followed by an alcohol swab. Next he inserted the needle into the site of the injection and emptied the balance of the syringe.
89Dr Sarian was cross-examined to suggest that there was nothing about the procedure that he performed on 25 November that would allow him to recall with any precision how he had administered the Cortisone injection, other than to rely upon the normal way he would administer injections. It was suggested to him that in giving evidence he had no independent recollection of what had happened but was merely reconstructing.
90In comparing the evidence of Ms Elton and Dr Sarian his Honour preferred that of Ms Elton. He set out his reasons as follows:
"72 Not surprisingly, the recollections of the plaintiff and the defendant about the procedure adopted when the Cortisone injection was administered were different. This is understandable, having regard to the period of time that has elapsed since the event. As I said previously, I find that the plaintiff has a belief that her recollection is accurate. Although it was suggested that initially she had no reason to focus on how the injection was administered, she said that contrary to the earlier injection this one was "very painful". In addition, within a short period of time she began to experience unexpected symptoms which I am satisfied focused her mind on how the procedure was carried out. Despite the extensive cross-examination I found the plaintiff to be unshaken and accept her as not only truthful but more likely than not accurate as to how the injection was administered on 25 November 2005. Where there is a difference between her recollection and that of the defendant I prefer the plaintiff.
73 I prefer the evidence of the plaintiff for a number of reasons:
(a) I found the defendant to be unusually defensive.
(b) He was anxious to give his version of events irrespective of the nature of the questions put to him.
(c) I find that he has reconstructed the events of 25 November and has no independent recollection, relying entirely on his general practice.
(d) His notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded.
(e) The defendant runs an extremely busy practice, seeing up to 25 to 30 patients in an afternoon and could not in my opinion be expected to recall the precise circumstances in which he gave this injection when there was nothing that occurred on the day in question to alert him to any problem.
...
83 I have found that the plaintiff's recollections of 25 November should be preferred to those of the defendant where those recollections conflict. I accept that the plaintiff's version is more likely. I observed the plaintiff carefully as she gave her evidence and I am satisfied that I can rely upon her recollection."
91On the question of breach of duty Dr Sarian relied upon two reports of Dr Norman Walsh, a general practitioner.
92In relation to Dr Walsh his Honour said:
"67 Dr Walsh said:
"It is important to use a two stage technique to avoid the plaintiff having an unsightly brown iodine stain which is often resistant to removal for over a week."
Dr Walsh said the plaintiff's recall of events as detailed in the letter of instruction to Dr Iredell makes no mention of his two stage disinfection technique despite describing the technique employed in great detail. It is possible that the plaintiff in failing to recollect this aspect of the disinfection procedure may have become confused and concluded that palpation of the injection site occurred following the final application of disinfectant rather than before or between the two stage disinfection process. Dr Walsh said that infections after soft tissue injections are a rare event and administration of injections without prior skin disinfection is increasingly practised in the community.
68 Dr Walsh said there was no objective evidence provided in support of Dr Iredell's opinion that inappropriate technique, as opposed to misadventure, caused the plaintiff's infection. He said that if the no-touch technique was employed, it was irrelevant whether or not the operator's fingers contacted the disinfected or non-disinfected skin.
69 Whilst I did not consider Dr Walsh's opinion not to be genuinely held by him on the basis of his long experience as a general practitioner, I consider that the comment he made that the plaintiff must have been mistaken shows some preference for one version over the other and he therefore cannot be accepted as an objective commentator.
...
71 In the light of my view that Dr Walsh has to some extent entered into the arena, I decline to accept his evidence as demonstrating that the defendant's procedure would be widely accepted as competent professional practice."
93On the basis of this review of the evidence, his Honour found that breach of duty had been established:
"76 Dr Walsh was the only general practitioner to provide a medico-legal report. I have already commented on my view of his report. Nothing in his report suggests to me, and I did not understand the defendant to assert that it was so, that he should not have properly disinfected the area where the needle was to be inserted.
77 In some cases the fact of the infection of itself may be sufficient to establish liability and to justify the conclusion that the defendant was negligent and his negligence caused any injury suffered. This is because the defendant had the sole control of the injection procedure and in the opinion of both Dr Iredell and Associate Professor Eisen the infection occurred at the time the needle was being injected.
...
79 In this case, it was not suggested that the risk of infection was not foreseeable. Infection is a well known consequence of a failure to disinfect before breaking the skin. The risk was not insignificant, and in my opinion a reasonable person in the position of the defendant would have taken precautions to disinfect the area of the injection and indeed the defendant asserted that he had done so.
80 I am satisfied that if that care was not taken harm would probably occur to the patient and as the evidence in this case shows, that harm was likely to be serious. As administering the injection was under the control of the defendant, he had the burden of taking precautions to avoid the risk of harm."
94His Honour rejected the defence under 5O of the Civil Liability Act 2002 (CLA):
"86 In view of the findings I have made as to the evidence of Dr Walsh, the defence under s5O is rejected. The risk could have been avoided by the use of reasonable care. There will be a verdict for the plaintiff on liability."
95In relation to causation his Honour said:
"87 I am satisfied that but for the failure of the defendant to properly disinfect the area where the injection was to be inserted, the plaintiff would not have suffered the infection (S5D Civil Liability Act)".
The appeal
96Dr Sarian makes three challenges to his Honour's judgment. The first challenges his Honour's fact finding with particular emphasis on the way in which his Honour dealt with his evidence. Dr Sarian submits that his Honour did not properly analyse his evidence, but merely set out an unsubstantiated set of conclusions.
97The second challenge relates to his Honour's characterisation of the evidence of Professor Eisen. Dr Sarian submits that his Honour misunderstood the effect of Professor Eisen's evidence and having done so, failed to analyse it or otherwise take it into account when reaching his decision. He submits that had his Honour taken the report into account, Ms Elton could not have succeeded on the issue of medical causation.
98The third challenge relates to his Honour's refusal to take into account the report of Dr Walsh. Dr Sarian submits that there was no proper basis for his Honour refusing to have regard to the contents of that report. He submits that had his Honour taken that report into account, Ms Elton could not have established breach of duty.
Factual finding as to how injection administered
99Dr Sarian submits that his Honour erred in preferring the evidence of Ms Elton as to the methodology adopted by him when administering the injection. Dr Sarian submits that his Honour misused the advantage which he had as trial judge in the fact-finding process. He submits that his Honour made general findings based on demeanour but did not look at the effect of the evidence as a whole and did not analyse the evidence in any detail.
100In relation to Ms Elton, Dr Sarian accepts that his Honour was entitled, on the basis of her demeanour and on the basis of how she reacted to cross-examination, to find that she was honest in her evidence. Dr Sarian, however, challenges what he says was the failure on the part of his Honour to assess by reference to her evidence, her reliability as a witness.
101Dr Sarian submits that an examination of the whole of the evidence of Ms Elton showed that except for the day of the injection, ie 25 November 2005, she had a very poor recollection of events. She could not remember detail of previous attendances at the surgery, in particular that of 31 August 2005 nor could she remember detail of the attendance on 12 December 2005. He submits that other examples are her attendances on her solicitor, the circumstances surrounding the preparation of her statement about what happened on 25 November 2005, and the details of her attendance at the Nepean Hospital. In the case of the attendance on the solicitors and the preparation of the statement, these events occurred in 2008 yet Ms Elton's recollection of them was poor.
102On the same issue, Dr Sarian refers to the fact that Ms Elton could not remember the symptoms in her right arm which led to her attending the surgery on 25 November 2005 (WB109.18-.36, WB110.3-.28). Dr Sarian submits that there was an inherent improbability in Ms Elton having such a clear recollection of the precise steps taken by him to administer the injection but having such a poor recollection of other matters, not only on that day but during more recent times when she attended her solicitors and Professor Iredell. He submits that this improbability is not adequately explained by the proposition advanced by his Honour (but not by Ms Elton) that the reason she remembered the details of the injection on 25 November 2005 was because it was so painful.
103Dr Sarian submits that his Honour's basis for rejecting his evidence (see [21] hereof) was expressed in general terms without reference to specific evidence and did not accord with the evidence actually given. Dr Sarian submits that implicit in his Honour's conclusion at [73] of his judgment is a finding that he was not telling the truth. Dr Sarian submits that where a finding of that kind is made, the evidence which forms its basis and the reasoning behind it, should be stated.
Consideration
104The relevant principles have been set out in a number of cases. In Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 the plurality said:
"28 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29 That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."
105In Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 Giles JA with whom Ipp and Basten JJA agreed said:
"49 The appeal is by way of rehearing ( Supreme Court Act 1970, s 75A(5)), but there are well-established constraints on the Court's approach.
50 In findings of fact resting on credibility considerations the trial judge is generally in an advantageous position, although the findings can be found to be erroneous if contrary to incontrovertible facts or compelling inferences or "glaringly improbable": ... The trial judge's advantageous position includes "considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced": NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367; (2005) 223 ALR 171 at [86] per Kirby J; see also Jones v R (1997) 191 CLR 439 at 467... These principles generally apply to the evidence of experts: ... Rational examination and analysis are called for, but "[a] judge may be persuaded by a combination of the material force of an expert's views together with the way in which the evidence was given". ...
51 The judge was in a far better position than this Court, restricted to the cold print of the transcript, to assess the weight to be given to the opinions of the general practitioners and the cardiologists as they gave concurrent evidence before him; an exercise in which the judge participated by inquiry and clarification.
52 Further, it is necessary that the appellant show factual error, and it is not enough to show that an alternative finding was available. Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ASCR 504 (Giles JA, Mason P and Beazley JA agreeing) cited at [17] the judgment of Santow JA, with whom Meagher JA and Beazley JA agreed, in Jones v Bradley [2003] NSWCA 81 at [113] - [116] -
"113 ... In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant " bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge's conclusions ought to be reversed ". Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) FCA 184; (1992) 35 FCR 359 at 369 where it was held:
'... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.'""
106Applying those principles to this issue, it is clear that if the evidence of Ms Elton were looked at in isolation Dr Sarian's challenge to his Honour's findings could not succeed. The challenge goes no further than to establish that alternate findings were available to his Honour not that his Honour was obliged to make such findings.
107However, his Honour's findings in relation to Ms Elton cannot be looked at in isolation. They have to be considered with his reasons for rejecting the evidence of Dr Sarian. It is in relation to this part of his Honour reasoning that Dr Sarian's submissions have more force.
108At [73] of his judgment his Honour set out five reasons for rejecting Dr Sarian's evidence. The first of these was that his Honour found him to be "unusually" defensive. Unfortunately his Honour did not identify the evidence on which that finding was based nor did his Honour provide an example of that sort of evidence. Having read Dr Sarian's evidence, both in chief and in cross-examination, I have not found any of it to be particularly defensive and certainly not "unusually" defensive. While appreciating the advantages the trial judge had in seeing Dr Sarian give his evidence, I have not been able to find any basis in the transcript for that finding.
109Another reason for rejecting Dr Sarian's evidence was that "he was anxious to give his version of events irrespective of the nature of the questions put to him". Once again his Honour did not identify or give an example of the evidence which led to that conclusion. I have been unable to find such an example in the evidence of Dr Sarian.
110Judges are familiar with witnesses who provide unresponsive answers, usually of an exculpatory kind. There is nothing of that flavour in the evidence of Dr Sarian.
111The next two reasons for rejecting Dr Sarian's evidence can be looked at together: his Honour's finding that "he has reconstructed the events of 25 November and has no independent recollection relying entirely on his general practice" and "his notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded".
112Except for the reference to deficiencies in his notes, his Honour did not otherwise identify the evidence which led to those findings.
113Dr Sarian said that when he gave Ms Elton a Cortisone injection on 31 August 2005 he told her that he would not give her any more such injections. This was confirmed by his notes. When she attended the surgery on 25 November he gave evidence of the following conversation:
"Q. Was there a further discussion with her about the injection?
A. Yes sir when I thought I mentioned to her that, you know, I told you last time that you know, I was not going to give you any more injections because you've had so many, and she was quite distressed.
Q. Did she say anything to you?
A. Yes sir she said "Please Doc", to the best of my recollection, this is exactly what she said, because these words made a significant impact on my decision to give the injection or not, she said "I'm going to start a new job, I have to work, I need the money", and this made a very significant impact on my decision to give the injection later. And then I decided to clinically examine to find out how bad the situation was, and she seemed to be in a very considerable amount of pain, the sort of pain that I did not think that she could carry on doing her usual work as a cleaner. And then I decided to give the injection." (WB152.37)
"Q. When you say you had a look at the elbow or you examined the elbow was that after you'd put gloves on or done a quick wash or anything like that?
A. No, no, no without a wash, she was sitting there, I was examining her, and my clinical examination demonstrated that she was in, as I said, a lot of pain and I had to make a decision. She was in pain and she had to work with Christmas coming and I could help her, but on the other hand I was concerned about too many injections." (WB153.13)
114Dr Sarian gave evidence as to what happened after he had given the injection on 25 November 2005:
"Q. And what happened next?
A. I said "Look, as soon as the medication starts working the pain will soon disappear" and I also told her then I said "Look this is the last injection, I'm not going to give you any more because you've had far too many" and I said "If this pain comes back again I'll have to consider referring you to an orthopaedic specialist Dr Maniam", then the pain started gradually subsiding and ..." (WB159.3).
115On a number of occasions Dr Sarian said that he did not palpate Ms Elton's arm while wearing gloves before the injection "Because I cannot feel through the glove". (WB142.24, 154.21, 156.1, 159.42)
116When asked why there was no record in his notes for 25 November 2005 about his conversations with Ms Elton, Dr Sarian said that there was and referred to the note which recorded:
"? To see Dr Maniam"
Dr Sarian said that the note indicated to him that if the pain did not respond to the Cortisone injection on this occasion, he would refer Ms Elton to an orthopaedic surgeon. It was common ground that Dr Maniam was an orthopaedic surgeon. (WB171.32, 172.4, 173.32, 184.35, 190.25, 190.40)
117When challenged in cross-examination as to why he had a clear memory about what happened on 25 November 2005, Dr Sarian said that he was so concerned about Ms Elton's presentation on 12 December 2005 that he referred back to his notes of the previous consultations and turned his mind specifically to what had occurred on 25 November 2005. He said that even though two weeks had passed between 25 November and 12 December, he was able to remember what had happened because 25 November was the last time he had administered an injection to anyone. (WB163.1, 183.6)
118The above evidence and the references to other evidence are consistent with direct recollection. The reason why Dr Sarian had an actual recollection was explained by him, ie he had turned his mind to what had happened on the occasion of the injection within two weeks of it happening. His evidence about Ms Elton's inability to work at that time because of her right arm was consistent with her own evidence. His evidence concerning an inability to palpate while wearing latex gloves was never challenged in cross-examination.
119Far from there being "many omissions" from his notes, those notes provided an appropriate trigger for his recollection of what had happened. When one compares his notes of 25 November with those of 31 August, they are consistent. An examination of his clinical notes showed that Dr Sarian only recorded matters which were relevant to treatment. At no time did he set out or note conversations. I do not regard his non-recording of conversations concerning searches for work in clinical notes as an "omission" from those notes. Nor would I expect such conversations to be recorded in clinical notes.
120The notation "? to see Dr Maniam" is fully consistent with a warning by Dr Sarian to Ms Elton that if her right arm did not respond to this injection, he would have to refer her to an orthopaedic surgeon. It is difficult to see what more should have been included in his clinical notes.
121Accordingly, I have concluded that his Honour's finding that Dr Sarian "reconstructed the events of 25 November and had no independent recollection relying entirely on his general practice" and that "his notes provided no real assistance as there were many omissions therefrom that one would have expected to have been recorded" is not supported by the evidence.
122Similarly, his Honour's final reason for rejecting Dr Sarian's evidence is not supported by the evidence. In many situations it would be open to conclude that it was improbable that a busy doctor seeing between 25 and 30 patients in an afternoon would remember in any detail a particular consultation some five years later. That, however, was not the evidence in this case. Dr Sarian's evidence was that two weeks after the consultation on 25 November he had occasion to turn his mind to what had occurred. His recollection was assisted by his notes and because this was the last occasion upon which he had administered an injection. This was a plausible explanation. If his Honour did not believe it, he should have explained why.
123As Dr Sarian submitted, implicit in his Honour's findings in relation to his evidence is that he was not telling the truth in a number of respects. This is a very serious finding which has implications with respect to the professional integrity of Dr Sarian. It is not a finding which should be made on the basis of impression alone. More was required. At the very least, there should have been some reference to and analysis of that evidence of Dr Sarian which provided the basis for these findings.
124I am forced to conclude that in his treatment of the evidence of Dr Sarian, his Honour has misused his position of advantage as trial judge. Accordingly, his findings as to the credibility of Dr Sarian should not be given the weight normally accorded to the findings of a trial judge. A statement of a conclusion concerning a witness without explanation is not a substitute for an analysis of the evidence of that witness.
125Of course this Court, not having seen and heard Ms Elton and Dr Sarian, is not in a position to reach its own conclusion. This is particularly so when on the important issue of disinfecting the injection site, their evidence is different.
The evidence of Professor Eisen
126His Honour dealt with the evidence of Professor Eisen at paras [29] - [33] of the judgment (see [14] - [15] hereof).
127It is obvious from these paragraphs that his Honour misunderstood the effect of Professor Eisen's reports.
128The effect of these reports was as follows. Streptococcus Milleri (SM) is a commensal organism found in the pharynx and gastrointestinal (GI) tract. It is not a routine skin commensal. (By "commensal" I understand Professor Eisen to mean a bacteremia which cannot survive on its own but requires a host.) While SM characteristically causes infections of the head, neck, lungs and bony skeleton, those infections spread from the pharynx and GI tract predominantly. Where skin and soft tissue infections have been recognised as due to SM, they have been shown to mostly occur to injecting drug users who lick the needle used for injection thus contaminating the needle with oral flora such as SM. On that basis, Professor Eisen concluded that "The most likely source of SM that caused the skin and muscle infection in Ms Elton's case was from the GI tract". Professor Eisen accepted that "It is conceivable but less likely" that the SM was colonising Ms Elton's skin and was introduced to the muscles of the right forearm by the injection.
129In addition, Professor Eisen had regard to the period of almost two weeks between the date of the injection and the development of symptoms (WB62.5). He regarded such a lapse of time as more consistent with SM being present at the site of the inflammation, having travelled along the GI tract and being activated by the injection into that site than having been introduced by the injection.
130It is against that background that the full quotation of Professor Eisen's opinion should be considered, not the partial quotation set out in his Honour's judgment. The full text of what Professor Eisen said (WB277.2) was:
"It appears highly likely that there is a direct relationship between the injection of anti-inflammatory and local anaesthetic into the region of the lateral epicondyle of the right elbow on 25 November 2005 and subsequent intra-muscular abscess in the same region that became symptomatic around the 12 November 2005. As above, it is possible that the SM organism was directly implanted into the muscles and soft tissues of the right elbow at the time of the local injection performed by Dr Sarian. This would require the extremely unusual circumstance of skin colonisation of the arm with SM. More likely it appears that a bacteremia with SM arose from a GI source and localised to the region of pre-existing inflammation in the right elbow that was exacerbated by local trauma caused by the injection of anti-inflammatory/local anaesthetic into the area."
131There was nothing controversial in that opinion of Professor Eisen. This was acknowledged by Professor Iredell in his reports of 18 November 2009 and 23 February 2010. In the first of those reports Professor Iredell said (WB238.7):
"SM is a rare cause of blood culture contamination and is a common coloniser of oropharynx, GIT and genitourinary tract. It is an unusual pathogen in an inoculation infection but the only alternative is that the site was "seeded" via the blood stream from an oropharyngeal or GI source. I do not believe the lady had any significant evidence of disease that would be consistent with this, although sub-clinical disease is perfectly plausible and even normal tooth brushing may result in low-level transient bacteremias, which could potentially have seeded the site of trauma/bleeding.
If it is established that the procedure was carelessly performed, then contamination by direct inoculation is, in my opinion, more likely than seeding from a distant source, given the apparent absence of GIT or oropharyngeal disease. Professor Eisen suggests the latter is more likely and the fact is that either contention is a valid explanation. Forced to make a choice, I favour the former and Professor Eisen favours the latter, it seems."
132In the report of 23 February 2010 Professor Iredell said (WB241.9):
"It is certainly credible that such an organism would lodge in an area of tissue damage (such as a haematoma), especially if tissue defences are partially disabled by steroid injection at that site. The GI tract is also a credible source of such a bacteremia although one would ordinarily expect that this is less likely in the absence of a GI lesion. Although these may be silent for some time and have not been formally excluded (eg a hidden tumour or diverticular disease), I believe that this is an unlikely explanation in the absence of any symptoms or signs. ...
On balance, I believe that inoculation of the site through the skin is most likely if the skin was not clean and/or had been touched with a finger or glove that was not clean. The alternative explanation of blood stream seeding is more likely if sterile technique was followed. Either explanation is credible in either circumstance, and neither scenario can be excluded.
It should be remembered, however, that infection is a risk inherent in any invasive procedure, including those conducted in a sterile operating theatre."
133Accordingly, it was factually wrong of his Honour to dismiss the opinion of Professor Eisen on the basis that "there was no medical evidence that supported this finding" and "that the weight of the medical evidence supported" Professor Iredell's opinion.
134It was necessary for his Honour to properly analyse the competing opinions of the infectious disease specialists and if possible, reach a conclusion on the basis of that analysis. This obligation was discussed in some detail in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174, (2004) 60 NSWLR 127. There Ipp JA, with whom Bryson JA and Stein AJA agreed, said:
"62 In Moylan , Sheller JA (with whom Beazley JA and Giles JA agreed) referred to and adopted much of the reasoning of Henry LJ in Flannery . His Honour quoted the following remarks of Henry LJ (reported in Flannery at 381-382; 377-378) with approval:
"It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78:
"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ... '"
And:
"... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other..."
Similar observations were made in Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, Archibald v Byron Shire Council [2003] 129 LGERA 311 and Papadopoulos v NSW Insurance Ministerial Corporation [1999] NSWCA 116.
135Far from his Honour "entering into the issues canvassed before him" and explaining why he preferred the opinion of Professor Iredell over that of Professor Eisen, his Honour engaged in no analysis of the competing opinions at all. Having rejected the opinion of Professor Eisen on the erroneous basis already referred to, his Honour made no further reference to his opinion and based his conclusion entirely upon the opinion of Professor Iredell.
136Since his Honour did not do so, it becomes necessary for this Court to carry out that process. This Court is just as able as his Honour to carry out an analysis of the competing opinions because neither Professor Iredell nor Professor Eisen gave oral evidence.
137The absence of any oral expert evidence highlights a fundamental problem in how the case was run at trial. I can well understand how in the interests of efficiency parties would rely upon medical reports where there was no real medical issue or where the expert who prepared the report was unavailable. Alternatively, the resolution of a medical issue may depend upon the assumptions put to the medical expert and not on the opinion of that particular expert. This, however, was not one of those cases.
138In this case there were two highly qualified specialists who had each reached different conclusions. Unless there was some logical inconsistency in the approach of one of them, it is difficult to see how his Honour could have resolved medical causation. Equally, it is difficult to see how this Court can resolve medical causation without having seen and heard Professors Iredell and Eisen.
139I have not found any logical inconsistency in the opinions of either expert. In his report of 21 October 2008 Professor Iredell concluded (WB219.5):
"It might be argued that the traumatised site was seeded by SM during the course of tooth brushing or even dental problems (unrecognised gingivitis or decay or dentures), since SM is more likely to colonise the oro/nasopharynx than the skin and trivial bacteremias associated with tooth brushing and asymptomatic disorders of teeth and gums are probably very common. However, SM is certainly capable of causing infection by transcutaneous implantation, i.e. by being introduced at the time of the injection, and is not a surprising isolate in the context of an injection abscess. The timing of the infection and the history of the injection are consistent with the infection having been introduced at the time of the injection.
The principal breakdown was the failure to perform a sterile procedure (i.e. to prepare the skin with appropriate disinfectant, drape the area after skin preparation, use sterile gown and gloves and maintain a sterile technique). This failure greatly enhances the likelihood of an injection site abscess, such as appears to have occurred.
Conclusion
Inappropriate technique is likely to be the sole contributor to this outcome. Sterile conditions and expert injection technique is not absolutely risk-free but the described failure of sterile technique is indefensible and extremely likely to have caused this complication."
140I have already quoted extensively from the report of 18 November 2009 (WB238). In that report Professor Iredell also spoke in terms of both a "clean procedure" and a "sterile approach". In relation to the latter he said (WB239.2):
"It seems to me that a sterile approach to such an injection would be widely accepted to be the correct and usual procedure before, after and including 25 November 2005."
141Similarly, I have already quoted from Professor Iredell's report of 23 February 2010. In that report Professor Iredell also explained that while SM located on skin was unusual, there were examples of it recorded in medical literature. In relation to the timing of the development of symptoms, Professor Iredell said (WB241.7):
"... With regard to the timing of events under discussion, a very small number of bacteria seeded into an area with a suppressed local immune response (as in this instance) might well be delayed in presentation with symptoms. It is also quite conceivable that the steroid injection delayed the presentation of the infection. I think a two week period between a small inoculum and presentation to a doctor with an obvious abscess is quite reasonable."
142In relation to the advisability of carrying out a sterile procedure, as distinct from a clean procedure, Professor Iredell said (WB242.3):
"It has long been accepted that greater attention to sterility at the skin during invasive procedures of all sorts is associated with lowered infection rate. I am not in a position to comment on whether an appropriately low-risk technique was followed in this particular instance but for less invasive procedures (e.g. venipuncture or subcutaneous injection), the standard level of preparation is as simple as a brief alcohol skin preparation and clean hands or gloves."
143By way of response to matters raised by Professor Iredell, Professor Eisen in his second report of 10 December 2009 said (WB278.7):
"If the plaintiff's version as set out in the briefing letter to Professor Iredell is accurate this does not alter my opinion as expressed in paragraph 8 of my written report of 8 April 2009. The fundamental issue that guides my assessment is that SM is not a member of the normal skin flora and would not have been present on the plaintiff's arm unless it was contaminated with saliva. This is not indicated by the plaintiff's version of events."
144In relation to some specific questions addressed to him, Professor Eisen said (WB278.9):
"I performed a thorough search of the medical literature and failed to find any evidence of SM causing soft tissue infection complicating medical administration of therapy for soft tissue strain. The literature, rather, indicates that infection following soft tissue injection is an uncommon condition typically caused by known implantation pathogens such as staphylococcus aureus or atypical mycobacteria. Where SM has caused soft tissue disease such as tendon sheath infection, this has been due to inoculation of oral flora through bite injury or implantation via a sewing needle contaminated with saliva.
Therefore it is clear from the medical literature that SM is not a cause of implantation injury aside from where oral flora are injected into the soft tissues such as by injecting drug use practices, bite injury or other accidental inoculation with material overtly infected with saliva. This supports the contention that the more likely source of SM infection in the plaintiff's case in her right elbow in December 2005 is from bacteremic spread from a GI source."
145In relation to the timing of the onset of the infection, Professor Eisen expanded his previous opinion (WB279.3):
"SM is a pyogenic organism and causes infections that have much in common with S.aureus in terms of onset and extent. I would have expected a SM infection resulting from implantation on 25 November 2005 to have caused overt symptoms and signs of infection by one week. This statement is guided by the case described as S.aureus intratendinous abscess complicating steroid injection. In this case, symptoms of the S.aureus infection became apparent rapidly as described in the report - "rather than resolution of symptoms, the patient experienced increased pain and swelling over the ensuing week, and the pain became constant".
Further, I note from Dr Walsh's report (paragraph 2 page 2) of 28.4.2009 that the plaintiff was found to have a compartment syndrome associated with the muscle abscess. This is a more fulminant condition than a tendon abscess and would definitely be expected to present within one week of its development.
The presence of the topically injected, long acting steroid, Kenacort can be expected to alter the local manifestations of infection to some extent. It will promote the growth of the organism but reduce the associated inflammatory signs. I do not expect the overall impact of the injected steroid to have been such that it would reduce the time to development of signs of the infection due to pyogenic organism SM. A less virulent pathogen may have taken longer to present."
146Apart from the comments of Professor Iredell concerning "sterile" conditions as distinct from "clean" conditions, which seem somewhat unrealistic in the context of a relatively simple injection, I can find no basis in the reports for preferring the opinion of Professor Iredell over that of Professor Eisen or vice versa. The reports from each of them clearly and methodically develop the opinions which they proffer. As already indicated, there is no basis in principle or in logic for preferring one set of reports over the other.
147This is a highly unsatisfactory situation. On one view it could be said that since these expert opinions are evenly balanced, the respondent has not established medical causation on the balance of probabilities. On the facts of this case, that would produce a result which was unfair to Ms Elton.
148Had the proper analysis of the expert opinion been carried out by his Honour, he would as this Court has done, have appreciated the impossibility of deciding this case on the reports of Professors Iredell and Eisen without either of them giving evidence. In those circumstance, his Honour may well have recalled the parties and pointed out the problem to them. There are, of course, other options which he may have taken. I remain of the opinion, however, that it would be highly unsatisfactory to resolve this case, given its complex factual circumstances, on an onus of proof basis.
Reports of Dr Walsh
149His Honour dismissed the opinion of Dr Walsh without analysis on the basis that he could not be accepted as an objective commentator and that he had to some extent entered into the arena (see [92] hereof). As a result no further reference or examination of the report of Dr Walsh took place and his opinions were disregarded.
150His Honour's treatment of the evidence of Dr Walsh was not justified. The comment by Dr Walsh which his Honour criticised was no more than an attempt to reconcile the two conflicting versions of how the injection was given. Dr Walsh did not in that comment assert that "the plaintiff must have been mistaken" as set out in para [69] of the judgment. On the contrary, Dr Walsh said that it was "possible" that Ms Elton was mistaken. Given that Dr Walsh had complied with the expert's code of conduct in preparing his report, that the report was relevant to the issues which he had to decide and was supported by references to current medical literature, it was necessary for his Honour to analyse it and take into account its effect. Since his Honour did not do so it falls to this Court to carry out that process.
151Dr Walsh was a general practitioner with 28 years of experience at the time of trial. Much of his report assumes an acceptance by a court of the evidence of Dr Sarian as communicated to him in his letter of instruction. I do not propose to refer to that part of the report since the question of which version of the facts is to be accepted remains unresolved. His report does, however, contain evidence concerning the giving of injections generally and this evidence does not depend upon an acceptance of Dr Sarian. This evidence was important and should at least have been referred to and dealt with by his Honour. This is particularly so when the evidence was supported by references to the medical literature, some of which was attached to his report.
152In the report of 28 April 2009 Dr Walsh drew a distinction between "a sterile procedure" (which he referred to as "aseptic") and a "clean" procedure. He set out the occasions when those procedures would be used. On that issue he said (WB245.2):
"An important distinction must be drawn between joint and soft tissue injections. Joint injections carry the risk of septic arthritis and it is often recommended that these be performed under aseptic conditions, with gloves gown and surgical drapes. Soft tissue injections, on the other hand are little more than an extension of simple subcutaneous injections such as vaccinations or insulin injections and are associated with extremely low risks of infection. Research has demonstrated that disinfection of the skin prior to subcutaneous, intramuscular or intravenous injections with sterile needles does not measurably improve rates of infection, as the incidence of infection was negligible with or without skin disinfection. For diabetics requiring subcutaneous insulin injections, injection without disinfection, injection through clothing and self-reuse of needles are now widely supported as safe practice ...
It is clear that what is recommended here is a "clean" technique for soft tissue injection, not an "aseptic" technique. Injections are normally administered using a "clean" technique by general practitioners, similar to that employed when changing a dressing. Hand washing or using an alcohol rub is the important initial step. Inherent in such a technique is the possibility of some secondary contamination of the skin as bacteria may fall from the patient and/or doctor's clothing, face or nose. As there are no drapes, implements such as syringes cannot be placed in a sterile zone and may come into contact with unsterile surfaces such as the plaintiff's skin. Gloves, if used, may be initially sterile or unsterile. It is almost inevitable that gloves will subsequently come into contact with unsterile implements, the patient's skin or clothing during a "clean" procedure. While it is important that the needle not be touched prior to entering the patient's skin, there is no evidence that "after hand washing" touching a patient's skin in the vicinity of an injection site prior to injection leads to an increase in subsequent septic complications in community practice."
153Dr Walsh when dealing with the particulars of negligence said (WB247.2):
"The risk of infection associated with a soft tissue injection is so low that research has failed to demonstrate a measurable benefit associated with the use of antisepsis, much less the use of aseptic technique."
154Dr Walsh, when commenting on the opinion of Professor Iredell said (WB248.4):
"Professor Iredell appears to have no relevant experience in general practice and has not quoted any literature to support his contention that Dr Sarian's "inappropriate" technique diverged significantly from that of his peers.
Professor Iredell fails to acknowledge that skin disinfection prior to soft tissue injections (as opposed to surgical procedures) produces no measurable reduction in subsequent infection. Infections after soft tissue injections are a rare event and administration of injections without prior skin disinfection is increasingly practised in the community. There is no objective evidence provided in support of his opinion that "inappropriate technique" as opposed to misadventure was the cause of the plaintiff's infection.
Professor Iredell fails to refer to the literature to support his contention that administering a soft tissue injection as a "sterile" procedure as opposed to a "clean" procedure produces less adverse outcome. There is no evidence that general practitioners performing soft tissue Cortisone injections observe "sterile" procedure protocols rather they observe "clean" procedure protocols. The use of sterile gloves, a surgical gown and surgical disinfection followed by draping of the site of the soft tissue injection (to ensure that the syringe and gloves could not become secondarily contaminated by contact with the patient) would be quite inappropriate and unnecessary in a primary care setting for this procedure, in my opinion. There is good evidence that "clean" procedure protocol achieve comparably low infection rates to "sterile" procedure protocol for soft tissue injection."
155This evidence of Dr Walsh was relevant to the application of s5B and s5O of the Civil Liability Act 2002 (CLA).
156Section 5B provides:
"5B(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
157There was no issue that the risk was foreseeable. The report of Dr Walsh, however, raised an issue as to the significance of the risk and the probability that harm would occur if care were not taken. The evidence of Dr Walsh was to the effect that the foreseeable risk of injury from an injection, administered in the way described by Ms Elton, was not significant. There was, however, evidence to contrary effect in the last two paragraphs of the report of Professor Iredell of 21 October 2008 (WB 219). That conflict was not resolved by his Honour. Because Professor Iredell and Dr Walsh did not give evidence in the proceedings, this Court is not able to resolve such a direct conflict in opinion.
158Section 5O provides:
"5O(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
159Section 5O CLA has been held to operate as a defence ( Dobler v Kenneth Halvorsen at [54] - [61]) in the sense that it is necessary for the professional seeking to rely upon it to establish the circumstances for its operation. In this case because Dr Walsh did not give oral evidence, it is not clear whether he would have regarded the injection procedure described by Ms Elton as constituting a "clean" procedure. If he did not, it is difficult to see how s5O could apply if Dr Sarian's version of how the injection was given was not accepted. This is an important consideration in circumstances where this Court is not able to decide for itself whose version of events should be accepted. In those circumstances in the absence of Dr Walsh giving oral evidence, it cannot be said that his report establishes a defence for Dr Sarian under s5O CLA.
160The evidence of Dr Walsh set out above is also relevant to medical causation. Whereas Professor Eisen focused upon the nature of the infection, Dr Walsh focused upon the method of injection. It was the opinion of Dr Walsh, that skin disinfection prior to soft tissue injections produced no measurable reduction in subsequent infection and that the risk of infection associated with a soft tissue injection was so low that research had failed to demonstrate a measurable benefit associated with the use of antiseptic.
161The difficulty with this aspect of Dr Walsh's report is that it is not clear what reliance was placed upon it by the appellant in the proceedings before his Honour. This Court did not have the benefit of the extensive written submissions of the appellant at trial nor did it have the benefit of the oral submissions. From the limited exchanges between counsel and his Honour recorded in the transcript, it is not clear whether at trial the appellant relied upon the report both in relation to medical causation and in relation to the s5O CLA defence or only in relation to the s5O CLA defence.
162What seems clear is that there was no s5B CLA issue (other than the factual issue between Dr Sarian and Ms Elton) raised before his Honour, nor was any such issue raised in this Court. Accordingly, it is not appropriate for this Court to consider that issue further.
163The extent to which Dr Walsh's report was relied upon (if at all) on the issue of medical causation is simply not known. Certainly reliance was placed upon it on that issue in the appeal, although the main thrust of the appeal submission was directed towards the s5O CLA question. At trial, however, it may not have been relied upon for that purpose. In saying that, I appreciate that it was relied upon to support Dr Sarian's evidence as to what actually occurred at the time of the injection, but otherwise it may not have been relied upon in respect of medical causation. This issue may well have been capable of resolution had his Honour referred to the contents of the report, or otherwise made some analysis of it. On the state of the evidence before this Court, it is not possible to determine that issue.
164In circumstances where a report of this kind may have been tendered and relied upon for only a limited purpose at trial, it would be inappropriate for this Court to take it into account for a different purpose, i.e. medical causation, even though it was clearly relevant to that issue.
Conclusion
165It is clear that this trial miscarried in a number of respects. There was a failure to properly treat the evidence of Dr Sarian. There was a failure to properly analyse the competing expert evidence of Professors Iredell and Eisen and there was a failure to properly analyse and deal with the report of Dr Walsh. These problems were exacerbated by the fact that in a medical negligence case where there was conflicting expert opinion, none of the experts were called to give oral evidence. For the reasons indicated, it has not been appropriate or possible for this Court to resolve for itself the liability issue.
166In those circumstances it is unavoidable that the matter should be remitted to the District Court for a rehearing, such rehearing to be restricted to the issue of liability. That is a regrettable result, given the modest damages involved.
167The orders which I propose are as follows:
(1) That leave to appeal be granted.
(2) That the appeal be allowed.
(3) That the judgment in favour of Ms Elton against Dr Sarian be set aside.
(4) That the costs order in favour of Ms Elton against Dr Sarian be set aside.
(5) That the matter be remitted to the District Court for a hearing limited to liability. Should liability be found in favour of Ms Elton, damages are to be as assessed in the first trial with appropriate adjustments to take account of interest.
(6) That Ms Elton pay Dr Sarian's costs of the appeal.
(7) That the costs of the first trial be determined by the trial Judge in the new trial.