Sherry v Australasian Conference Association [2006] NSWSC 75 | Case summary

Sherry v Australasian Conference Association [2006] NSWSC 75 | Case summary | Zoe

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I will at times refer to the second to fourth defendants collectively as "the doctor defendants". Otherwise, when referring to them individually it will be convenient to use their names rather than their litigation designations. 3 Some facts are uncontroversial and, by way of introduction, may here be shortly stated. On 12 August 1997 Mr Sherry was admitted to SAH. It was intended that he would undergo heart surgery, to be performed by Dr Marshman. The surgery proposed (and performed) was of a kind known as "minimally invasive direct coronary arterial bypass" ("MIDCAB"). This is a procedure in which heart surgery is performed through a small surgical incision in the chest wall (thoracotomy). In 1997 MIDCAB was a relatively new mode of performing heart surgery. It would, it was hoped, lessen the post operative pain of the patient, and promote more rapid recovery. Experience, however, proved otherwise, and the technique has fallen out of favour. As at August 1997, and prior to operating on Mr Sherry, Dr Marshman had performed two MIDCAB procedures. 4 The surgery was performed the following day, 13 August, and was successfully completed. No issue arises in the present proceedings concerning the performance of the surgery. 5 On its completion Mr Sherry was taken to SAH's Intensive Care Unit ("ICU"). There he came under the care of Dr Wilson (an intensive care specialist, also known as an intensivist) and Dr Walsh as career medical officer ("CMO"), the title given to a relatively senior medical practitioner, with specialist training in areas relevant to intensive care, focussed upon critically ill patients (t 2504). 6 Extensive and detailed monitoring of Mr Sherry's condition, medication, and physical signs ensued. This was routine in the ICU. A chart, known as the ICU Chart, was in evidence as Exhibit C1. It features prominently in the issues in the proceedings. It is not entirely uncontroversial as an accurate record, there being a number of entries to which reference will have to be made. There are, admittedly, some clear errors on the ICU Chart. Some questions of interpretation of individual entries arise. 7 Rightly or wrongly, no real concern as to Mr Sherry's condition arose until about 10.10 pm on 14 August. What happened during the intervening period is, however, the subject of a great deal of the evidence and will be examined in detail at a later point in this judgment. At 10.10 pm Mr Sherry experienced an increase in chest pain. Dr Walsh, who was the CMO on duty in SAH, was called by a nurse. After an examination Dr Walsh made a provisional diagnosis of pneumothorax (a collection of air or gas in the pleural cavity). This, it was later recognised, was incorrect. Mr Sherry was suffering from a haemothorax, a collection of blood in the pleural cavity. Dr Walsh gave Mr Sherry some treatment, ordered an immediate x-ray, and resumed his duties elsewhere in SAH. At about 10.40 pm he was paged by an ICU nurse, informed that the x-ray results had arrived, and returned to the ICU. 8 The examination of the x-ray showed a large pleural effusion which Dr Walsh then thought was probably a haemothorax. He telephoned Dr Wilson, who was at home but on call. 9 Having heard a description of Dr Walsh's observations, Dr Wilson asked Dr Walsh to insert a chest drain and immediately travelled from his home, not far distant, to SAH. Before he arrived at the hospital, and while preparations were under way for the insertion of the chest drains, Mr Sherry went into cardiac arrest. Dr Wilson arrived at the hospital at about 11.00 pm and assumed control of the administration of treatment. At about 11.00 pm Dr Marshman was called. He arrived at SAH about 15 minutes later. He took control. Dr Walsh, assisted by nursing staff, administered cardio-pulmonary resuscitation ("CPR"). All efforts were unsuccessful and Mr Sherry died, probably about 15 minutes after midnight. The direct cause of death was later established by a pathologist's report for the Coroner as "massive intrathoracic haemorrhage". 10 The plaintiff claims that SAH, and each of the three medical practitioners, was negligent in its or his treatment of Mr Sherry in a variety of ways. She alleges that each of the defendants was in a contractual relationship with Mr Sherry, and that each failed to honour its or his obligation under the relevant contract, and that she is, therefore, entitled to damages under the Compensation to Relatives Act. 11 The plaintiff has particularised her case in negligence against each defendant. She relies upon the same particulars to establish the contractual breaches she alleges. I do not propose to repeat the lengthy particulars, many of which are in general terms subsumed in the more detailed allegations, contained in the statement of claim, but rather will attempt, by reference to the pleadings, to encapsulate the case she has sought to make against each defendant. I will make later reference to the case as it was finally put against each defendant. 12 The outline of the negligence alleged which follows is a paraphrase, in my words, of the particularisation contained in the operative statement of claim (the Second Further Amended Statement of Claim). The substance of what the plaintiff there alleges as against each defendant is as follows:

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Dr Walsh:

failed adequately to monitor or examine Mr Sherry's condition or to attend with sufficient frequency or regularity or to be present continuously in the ICU;
failed to diagnose post-operative bleeding;
failed provisionally to diagnose haemothorax;
incorrectly diagnosed pneumothorax;
failed with sufficient promptness to contact Dr Marshman and/or Dr Wilson upon examination of Mr Sherry;
failed to provide appropriate treatment during the afternoon and evening of 14 August;
failed to remain with Mr Sherry from 10.15 pm on 14 August or to administer appropriate treatment from that time;
failed to diagnose haemothorax;
failed to observe or appreciate the significance of certain clinical signs;
failed to administer fluid at about 10.10 pm on 14 August. 13 In written submissions provided on behalf of the doctor defendants reference was made to what was said by senior counsel for the plaintiff when he orally opened the case on 7 June 2004. This was an attempt to restrict the particulars of negligence available for determination to those specifically mentioned in the opening. I should make it clear that I see no reason why, and do not propose to proceed on the basis that, counsel's opening should be taken as some kind of substitution for a statement of claim. The opening is intended to outline, for the benefit of the court, the case which a plaintiff proposes to make and to facilitate the production of the evidence to be adduced. It is not intended to usurp the role of formal pleadings. If any doubt had existed as to the intention of the plaintiff's legal representatives to continue to rely upon any of the particulars pleaded, it was always open to defence counsel to seek clarification of, for example, any particulars that had been, or were, to be abandoned. I proceed on the basis that it is the particulars pleaded, and any that are supported by the evidence, not limited to those to which specific reference was made in the opening, that form the basis of the plaintiff's claim. It remains to be seen whether the evidence establishes that any negligence or contractual breach as particularised has been established. 14 All defendants deny the allegations of negligence and of breach of contract. 15 In addition to alleging that SAH was itself (through its nursing and other non-medical staff) in breach of its duty to Mr Sherry, the plaintiff also pleads that:

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facts and circumstances 19 I now turn to a more comprehensive account of the relevant facts and circumstances. Mr Sherry was born in Salisbury (as it was then known) in Rhodesia (as it was then known) on 21 March 1961. With his family (mentioned in [1] above) he migrated to Australia in August 1983. He became involved in property management and had various forms of employment in this area. He was a fit and healthy man, although he had, in the past, been a smoker. He gave up smoking on the family's arrival in Australia in 1983, and smoked only occasionally, during the early 1990s, thereafter. He engaged in a rigorous exercise programme. He suffered from asthma, for which he used a Ventolin puffer. From 15 September 1996 he experienced repeated incidents of coronary discomfort for which he was treated on a number of occasions at SAH, at Manly Hospital, and by doctors it is not here necessary to mention. He was diagnosed in September 1996 as suffering from coronary artery disease. The plaintiff took medical advice and made some adjustments to the family's already healthy diet. At the time of his admission to SAH Mr Sherry had a prescription for a drug called Losec, which is used, inter alia, in the treatment of stomach ulcers. 20 He came under the care of Dr Thomas Gavaghan, a cardiologist, who eventually referred him to Dr Marshman for surgery. Dr Marshman was provided with at least some of Mr Sherry's medical records, and received information from Dr Gavaghan. The two specialists agreed that the MIDCAB surgery was appropriate for Mr Sherry's needs. Dr Marshman then telephoned Mr Sherry and explained the nature of the procedure. Mr Sherry told Dr Marshman that he had had some discussions with Dr Gavaghan and that his symptoms, and their recurrence, were such that he wished to take further measures to resolve his problems. Accordingly, Dr Marshman made arrangements for his admission to SAH. This occurred on 12 August 1997. Up to this point, Dr Marshman had never met Mr Sherry face to face. He did, however, see him that evening in the ward in SAH. They discussed again the nature of the operation and its risks and Mr Sherry confirmed that he wished to proceed. 21 The surgery commenced the following morning shortly after 11.00 am and was completed between two and two and a half hours later. It went without incident. There was significant, but not alarming, post-operative bleeding. Intercostal drains were inserted, one in the left pleural space, and a second in the pericardial space. The placement of the drains is of some significance. They were brought out of Mr Sherry's body through separate stab incisions. The chest wound through which the surgery had been performed was closed. 22 He was taken to the ICU at about 2.30 pm. Dr Marshman probably accompanied Mr Sherry to the ICU to ensure that everything was in order. Dr Wilson was the intensivist on duty. A "handover" took place, the anaesthetist giving Dr Wilson relevant information. Dr Wilson assessed Mr Sherry. He reviewed his past records, and examined him. Dr Wilson was aware that there was then significant post-operative bleeding. The anaesthetist thought that Mr Sherry was, at that time, "stable". At some stage in the early evening, it may be assumed in accordance with usual practice, there was a "handover" from Dr Wilson to the CMO on duty that day. This was not Dr Walsh. The CMO was aware of some issues with pain control, but otherwise Mr Sherry's condition was regarded as satisfactory. His pulse rate was initially low, but climbed rapidly. 23 An x-ray was taken at about 2.50 pm. It showed some collapse ("atelectasis") in the left lung, but that the right lung "appeared clear". As later evidence showed, there was nothing surprising in the finding of modest left lung collapse in a patient following left thoracotomy surgery. 24 Dr Marshman returned to the operating theatre to perform further surgery on other patients. After that surgery was completed, at about 6.00 pm, he attended Mr Sherry in the ICU and satisfied himself that all was in order. He reached this view notwithstanding that Mr Sherry had experienced some significant post-operative bleeding, but took the view that this was under control, and that the cause had been corrected. Dr Marshman returned again to the operating theatre and performed a third operation on another patient. That concluded at about 8.30 pm and he again returned to the ICU and checked on all his patients in that facility, including Mr Sherry. At that time he observed that Mr Sherry was stable and well, had no significant bleeding and displayed no other problems. At some time during the evening of 13 August Dr Marshman examined the post-operative x-ray. He observed nothing untoward. (When he again examined that x-ray in the course of giving evidence, he identified "a hint of some collapse or increased masking in the lung behind the left chest" but a "quite clear" right lung. This x-ray gave him no cause for alarm.) 25 The following morning, 14 August, Dr Marshman telephoned the ICU to enquire about all of his patients in that facility at that time. His usual practice (and there is no reason to believe it was not followed here) was to speak either to the individual nurses caring for each patient, or to the nurse in charge of the ICU. He was informed that Mr Sherry had been relatively stable during the night with no major problems, that his bleeding had remained at a low rate, that he had been extubated and, that apart from some pain, all was well. 26 Dr Walsh came on duty at 8.00 am on 14 August. He was to remain on duty until 8.00 am the following day. He had no specific recollection of a handover round on that morning, but it is safe to assume that, in accordance with usual practice, either the CMO going off duty or Dr Wilson briefed him on the circumstances of the various patients in the ICU, including Mr Sherry. Dr Walsh had a recollection, not very clear, of an evening handover in which no specific problem was drawn to his attention. Dr Walsh then went about his duties in SAH, which included duties in other wards besides the ICU. 27 Within the ICU a document entitled "Clinical Path" was prepared. This was in the form of a chart, or series of charts, indicating what was anticipated in terms of assessment and monitoring, testing, treatment and observations of the patient. Each chart contained provision for the insertion of information as to the actual, as distinct from intended or anticipated, course of events. This was designed to operate as a checklist. For example, there was provision for the insertion of medications prescribed, and there were spaces for the insertion of a record of medication administered. The first chart was concerned with pre-operation matters, another one with the day of surgery, another with the four hours immediately post-surgery, the next with the remaining day of surgery, and the remainder for successive days post-surgery. Relevantly, the Clinical Path for 14 August shows that it was anticipated that, at some time on that day (the time is not specified) Mr Sherry would be able to walk to a chair with the assistance of two others. It is unnecessary at this stage to say more about these documents, except to note that they featured in the evidence and it will be necessary to make more detailed reference to some of them in due course. 28 Also maintained were handwritten records entitled "Integrated Progress Notes" into which information was inserted by various health professionals, such as nurses, physiotherapists, and doctors. These contain a number of entries significant for present purposes. Again, it is more convenient to return to the detail when considering the individual issues to be determined. I will refer to these as "the Progress Notes". 29 The next document of significance, also recording information inserted by various health professionals, is the document known as the "ICU Chart". This is a document partly in the form of a graph and partly in the form of numerical boxes for the insertion of information. The chart contains provision for the insertion of information of kinds too numerous here to detail, but including records of blood pressure (systolic, diastolic and mean), central venous pressure ("CVP"), blood balance, pulse and respiration rates, and the administration and excretion of fluids. There is also provision for the recording of drugs administered. The graphs are in a form which permits recording of the information on a quarter-hourly basis. It is also in a form which enables the initiated quickly to derive information about not only the current condition of the patient, but also changes or trends in the various parameters that are recorded. It became plain, through a number of medical witnesses, that changes in observations, or trends in, for example, blood pressure readings, are of considerable value in the assessment of a patient's condition, trends or changes often being of more significance that the raw, hour by hour, data. The overall purpose of the ICU Chart is, as described by the first medical witness: "... to document a wide variety of different parameters of the patient and interventions that different members of staff are giving to that patient." (t 876) 30 In respect of certain of the items recorded, such as drug administration, urine output (as to which, see below) the ICU Chart provides for cumulative totals. 31 The ICU Chart recording Mr Sherry's information commences on 13 August, the day of the operation, and shows his temperature, immediately post-surgery each fifteen minutes and thereafter, on an hourly and subsequently two-hourly basis. The same applies to the insertions on the graph recording his pulse rate, respiratory rate and urine output. In respect of some readings, it contains provision both for regular (hourly) readings, plus progressive totals. The ICU Chart contains an enormous amount of information. It featured prominently in the proceedings. It was conceded that it contains some errors although the extent and significance of those errors was a matter of considerable debate. Also debated was the interpretation that should be placed upon some of the entries, on the assumption that they were accurately recorded. 32 The Progress Notes also record a large amount of detail from the time of Mr Sherry's admission inserted by nurses, physiotherapists, and doctors. 33 What follows is a chronology drawn from the entries made in the Progress Notes, the ICU Chart, together with the evidence in the proceedings, other SAH records and some evidence derived from pre-trial procedures such as answers to interrogatories. It is of some note that no nurse was called by SAH (or any other party) to give evidence. What follows is not intended to represent findings of fact as to the accuracy of the information contained in the notes or the ICU Chart (although, with some notable exceptions, that is largely uncontroversial). The extracts from the Progress Notes below represent the entries after translation of the medical shorthand and symbols.

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post operative history 34 On 13 August Dr Wilson recorded the operation in the Progress Notes. He outlined a plan for future care which he noted as "routine". His notes included medication to be administered. 35 The plaintiff visited her husband in the ICU at about 2.30 in the afternoon of 13 August, immediately following the surgery. He was not then conscious and she did not remain very long. She returned at about 6.00 pm, with the children, although they were permitted to visit only one at a time. Mr Sherry still was not conscious. 36 At 8.30 pm a nurse recorded a "satisfactory post-op evening" and noted that Mr Sherry was then "haemodynamically stable", that the chest drains were drained, yielding large amounts of haemoserous fluid and that Drs Wilson and Marshman were aware of this. (The term "haemodynamically stable" appears repeatedly in the Progress Notes, and in the evidence. As defined by Dr Wilson in his evidence, it is a term used to denote that blood pressure, heart, and cardiac output are normal and that the rhythm is stable.) 37 At 2.00 am on 14 August Mr Sherry was given Ventolin. This was repeated from time to time during the day. At 5.00 am on that day in a "night report, day 1 post-op" a nurse recorded again that Mr Sherry was "haemodynamically stable with the help of some GTN" (a drug also known as Tridil, used to lower blood pressure, which, the ICU Chart shows, was administered between 4.00 am and 5.00 am). At 8.30 am a physiotherapist described Mr Sherry as "alert" but suffering pain on inspiration. His parameters were stable and his cough was weak. He was given COACH treatment. A "COACH" device is a physiotherapy apparatus designed to encourage deep breathing. It allows readings of inspiration. 38 At 7.47 am a chest x-ray was taken. This, like the x-ray of the previous day, showed some degree of left lung collapse but not to such a degree as to cause concern. At 8.30 am a physiotherapist recorded a clinical observation (as distinct from radiological evidence) of decreased air entry on the right base of the lung due to Mr Sherry's shallow breathing. It is of some significance that she made no similar record of clinical observation of decreased air entry to the left lung. 39 In an un-timed note of 14 August (but which, it may be inferred from its position in the Progress Notes, was between 8.00 am and 2.30 pm), Dr Wilson recorded that Mr Sherry was haemodynamically stable, that there were difficulties with pain relief, that chest drainage had decreased, and that an electro-cardiogram ("ECG") showed non-specific changes consistent with pericarditis (inflammation of the membrane enclosing the heart). He again recorded a plan, consisting of increased morphine dosage, the removal of drains and repeat ECG, enzymes and chest x-rays. 40 The plaintiff returned alone at about 11.00 am the following morning, 14 August. Mr Sherry was conscious. The plaintiff observed that the chest drains were still in place at that time. She discussed Mr Sherry's progress with the nurse, who was very positive and who said that she anticipated removing the chest drains at about lunchtime that day. The plaintiff observed that her husband was recovering his colour and did not appear to be in pain. She left at about 12.30. The drains were removed at about 1.30 pm. 41 At 2.00 pm more Ventolin was administered. At 2.30 pm the physiotherapist recorded increased pain from the surgery incision, that COACH treatment was given and pain inhibited. 42 At 3.00 pm a nurse, D Phibbs, recorded that Mr Sherry was alert and orientated, that pain control was the main issue, that morphine infusion was continuing at the prescribed rate, with some "boluses" (supplements), and that Panadeine was administered. Nurse Phibbs described Mr Sherry as "febrile", "centrally and peripherally warm and well perfused", but hypertensive (i.e. that his blood pressure was higher than optimum). Of some significance, Nurse Phibbs recorded that air entry was equal but decreased at the right base. (The apparent internal inconsistency in this note was never explained and was a mystery to, at least, Dr Wilson, as it is to me.) Nurse Phibbs confirmed the presence of the rash observed by Ms Sherry. 43 The plaintiff returned with all three children after 5.00 pm. The chest drains had been removed. On this occasion the plaintiff thought her husband looked "very fatigued" and she was concerned about his colour which she described as: "... ashen to almost a yellowy sort of colour".

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When she kissed him she noticed his mouth was cold. She touched his arm and hand and found that these also were cold. He had a fine red rash on his chest and arms. His left breast was swollen. Mr Sherry told her that the removal of the chest drains had been very painful. Leigh-Anne observed the heart rate monitor and commented that Mr Sherry's heart rate was "very, very high". (Leigh-Anne Sherry and her father had been in the habit of running together, and recording their heart rates in a kind of competition. She was familiar with the practice of reading heart rates, and with her father's physiological characteristics, including his pre-operative resting heart rate.) She and her mother observed on the monitor that Mr Sherry's heart rate was about 109 beats per minute. This was significantly higher than his normal resting heart rate. Mr Sherry blew into the COACH device, and his heart rate rose. 44 Mr Sherry dissuaded the plaintiff from taking up the issue with the nursing staff. He said that he was very thirsty. Matthew spoke to the nurse who gave him an iceblock. As Mr Sherry ate the iceblock the plaintiff saw that he was trembling. 45 The plaintiff thought that he was not looking as well as he had earlier in the day. She conveyed this to a nurse, making specific reference to his colour. Leigh-Anne Sherry commented to the nurse on the "very, very high" heart rate, saying that it was more than double his normal resting heart rate. The nurse replied that this was a normal post-operative response and that Mr Sherry's progress was being monitored. Miss Sherry also commented that her father's blood pressure appeared to be a bit low and was again told that it was being monitored and was a normal post-operative response. The nurse also told the plaintiff that her husband's colour was normal "considering what he's been through". This conversation terminated because Mr Sherry showed signs of anxiety about its being pursued. The family left about five minutes later. 46 Between 6.00 pm and 7.00 pm a "handover round" was conducted. There was little evidence about this. It was not recorded in the Progress Notes, and neither Dr Wilson nor Dr Walsh had any real recollection of it. 47 At 7.00 pm the physiotherapist recorded the administration of a bolus of morphine (for pain control), and decreased air entry, greater on the left than on the right. This entry became something of a focal point in the proceedings. This was because it was the first time that there was recorded a clinical (as distinct from radiological) observation of signs of left lung collapse. The record shows that Mr Sherry was given treatment and encouraged to use the COACH apparatus during the evening. 48 Dr Marshman visited and examined Mr Sherry at about 9.30 pm. He made no written note of his visit or of his examination. His claim that he had done so was subjected to severe scrutiny. I accept that he did so. 49 Dr Marshman shook Mr Sherry's hand and had a conversation with him. He examined Mr Sherry by feeling his hand and observing the colour of his hands. He felt his pulse and examined his chest. Dr Marshman was satisfied with his observations. He found Mr Sherry to be warm and well perfused peripherally, his tongue moist (a good indication), and his chest expansion satisfactory. Dr Marshman inspected the ICU Chart and found nothing to cause concern, other than an unanticipated level of pain. He reviewed the 7.47 am x-ray. He recognised that the x-ray showed that some minor collapse on the left lung was then present, but contained no surprises. He discussed Mr Sherry's condition with the nurse, who told him that there were no "issues", that everything was fine. He found Mr Sherry to be mentally normal. He saw no signs of internal bleeding. 50 At 10.10 pm Nurse Morrice recorded that Mr Sherry was haemodynamically stable, that he was monitoring in sinus rhythm (meaning that cardiac output was normal), that he was still complaining of pain and was given a morphine bolus with increased infusion. She noted that he appeared more settled and that his family had visited. 51 At a time which must have been very shortly after this note, Nurse Morrice called Dr Walsh, who was in another part of SAH. She told him that Mr Sherry had experienced a strong increase in pain. In response to a question by Dr Walsh, the nurse told him that Mr Sherry was haemodynamically stable. Dr Walsh attended immediately, arriving in the ICU at about 10.15 pm. He noted that Mr Sherry appeared to be very distressed by pain, and that he looked pale and sweaty. Dr Walsh checked the monitors. His observations were of a stable pulse rate of about 100, and that other readings were stable, with little change since his earlier examination; he noted that Mr Sherry had decreased air entry on the left. Because of pain he had difficulty breathing in. Dr Walsh spoke to Mr Sherry, who described the pain as a "very sharp" stabbing pain. Dr Walsh used a stethoscope to listen to Mr Sherry's chest. He felt Mr Sherry's extremities, which appeared normal. 52 He checked the ICU Chart and the Progress Notes, reviewing the trends. He satisfied himself that Mr Sherry's haemodynamic status was much as it had been over many hours. He made a provisional diagnosis of pneumothorax. He ordered a chest x-ray and prescribed some medication (Ketorolac, also known as Toradol) for pain relief. This was administered intra-muscularly by the nurse at 10.30 pm. He ensured that Mr Sherry was still stable, by observing the monitors, and returned to other duties in SAH, pending completion of the x-ray. 53 At 10.30 pm Dr Walsh recorded in the Progress Notes that Mr Sherry had suffered a sudden increase of left pleuritic chest pain, with decreased air entry to the left chest. The x-ray ordered by Dr Walsh was taken at 10.31 pm. He was notified when the x-ray had been processed and returned to the ICU to examine it. He again checked the readings on the monitors, finding little change. With some reservations, he diagnosed a haemothorax. He made clinical observations of Mr Sherry, who, he thought, was looking a lot more comfortable, and less pale and sweaty than previously. Mr Sherry himself said that he was feeling more comfortable, and the nurse confirmed that since the drug Ketorolac had been administered, he appeared more comfortable. The monitors showed that blood pressure, CVP, heart rate and oxygen saturations remained stable. All of this occupied only a few seconds. Dr Walsh recognised at this stage that it would be necessary to insert a chest drain, but did not initially instruct the nurse to make the necessary preparations. He explained this by saying that he wished to speak to Dr Wilson before taking any other action. Mr Sherry's apparent stability operated strongly on Dr Walsh's mind in his decision-making process. 54 It was at this point that Dr Walsh telephoned Dr Wilson. He described Mr Sherry's condition and what he had observed on the x-ray. Dr Wilson asked Dr Walsh to insert a chest drain. Dr Walsh asked the nursing staff to make the necessary preparations. At some point Mr Sherry complained of nausea. Dr Walsh prescribed a drug, Maxalon, which was administered by a nurse at 10.50 pm. A nurse recorded in the Progress Notes that, at 11.00 pm, Mr Sherry complained of feeling light-headed and dizzy and was observed to be pale and clammy and to have fitted. He was hypotensive - i.e. his blood pressure was below normal limits. 55 Within 10 minutes of Dr Walsh's telephone call to Dr Wilson, and before the chest drains could be inserted, Mr Sherry suffered a cardiac arrest. The precise time that that occurred has not been ascertained. He lost consciousness. Dr Walsh began cardio-pulmonary resuscitation ("CPR"), and directed that Dr Wilson be telephoned again. Dr Wilson was at that stage en route to SAH. 56 Dr Wilson arrived at about 11.00 pm and took control. He inserted two cannulae for the administration of fluid, intubated Mr Sherry, and opened the chest wound through which the surgery had been performed. A good deal of blood was released, confirming the diagnosis of haemothorax. 57 Dr Wilson later noted that, at 11.00 pm, Mr Sherry had suddenly lost consciousness. He considered this to be attributable to cardiac arrest. He diagnosed a left haemothorax. He administered treatment and directed that Dr Marshman be paged. 58 The Progress Notes record Dr Marshman's arrival at 11.25 pm, when he observed Mr Sherry to have been "asystolic" (meaning that he was suffering from faulty contraction of the ventricles of the heart: "fibrillating"). He recorded that the left chest wound had been opened and revealed blood loss. There remained blood and blood clots, which he evacuated, while continuing internal cardiac massage. Mr Sherry did not respond to treatment and resuscitation efforts ceased at 12.15 am on 15 August. 59 In a report to the Coroner dated 15 August, Dr Marshman estimated that there were 2000 millilitres (that is, about two litres) of blood in the chest. Later pathological examination for coronial purposes revealed a further 625 ml in the left pleural cavity and 100 ml in the right. The final record in the Progress Notes appears under the heading "Nursing Report" over the signature of Nurse S Ford and is plainly a retrospective, posthumously written, note. Nurse Ford noted the chest x-ray at 10.30 pm, the administration of drug therapy at 10.32 pm, review of the chest x-ray at 10.40 pm by Dr Walsh; that, at 10.45 pm Mr Sherry settled with a face-head wash, that at 10.50 pm he complained of nausea and was given treatment prescribed by Dr Walsh; that at 11.00 pm Mr Sherry complained of feeling light-headed and dizzy, and that his feet were elevated and his bed-head lowered. She observed Mr Sherry to have been "pale and clammy", and to have fitted. The precise time of the convulsion is not recorded. Nurse Ford recorded hypotension and profound bradycardia (reduced heart rate). Nurse Ford noted that the arrest alert was activated, that CPR was commenced, and that Dr Walsh was present and Drs Wilson and Marshman contacted. * * * 60 On the week of 13 and 14 August 1997 Dr Wilson was rostered on duty in the ICU, on a shift that commenced each morning at 8.00 am. He was in the habit of performing several rounds of the patients in the ICU. From about 5.00 pm onwards the "round" would be constituted by the nursing team leader, himself and the CMO on duty. This was known as a "handover round". It was conducted as he left SAH, although he remained on call. Although Dr Wilson had no specific recollection of the evening handover round of 13 August, the Progress Notes make it clear that this occurred in accordance with his usual practice, as described by him in his evidence. He again saw Mr Sherry during the course of the following morning, 14 August, when he reviewed the records and the ICU Chart and physically examined Mr Sherry. In conjunction with the CMO and the nursing staff he formulated a "Plan" which was recorded in the Progress Notes. He conducted a further round during the early evening, between 6.00 pm and 7.00 pm, on 14 August, but again has no specific recollection of that. Having completed his rounds, Dr Wilson left the hospital and returned home. Some time (probably shortly) after 10.30 pm he received the telephone call from Dr Walsh advising that Mr Sherry had had a sudden onset of worsening left-sided chest pain that was quite different from the pain that he had experienced earlier in the day. Dr Walsh told him that Mr Sherry had had a chest x-ray which showed either a left pleural collection or a left haemothorax (Dr Wilson could not remember which expression was used by Dr Walsh). In answer to a direct question from Dr Wilson, Dr Walsh told him that Mr Sherry was stable (meaning "haemodynamically stable"). Dr Wilson told Dr Walsh to insert a chest drain and said that he would come to the hospital. He left home immediately. En route he received the second telephone call advising of Mr Sherry's cardiac arrest. On arrival at SAH, he went straight to Mr Sherry's room, where he saw that resuscitation was under way. He reviewed the x-ray. This, he described as "a very abnormal chest x-ray", and very different from the x-ray taken that morning. Dr Wilson recognised that the x-ray disclosed a significant amount of blood in Mr Sherry's chest area. (I phrase this neutrally and non-specifically because precisely what should be made of the x-ray was a matter of considerable debate, and a matter to which I will have to return.) 61 Dr Wilson satisfied himself that appropriate measures had to that point been taken. He then inserted catheters. He had observed that a solution known as "Hartmans solution" was being administered and ensured that blood was also given to Mr Sherry. He then reopened the surgical wound and drained blood from the chest cavity and commenced internal cardiac massage. He found blood in the left thoracic cavity. (Much of the blood escaped, either into Mr Sherry's bed or onto the floor. The precise quantity of blood is therefore unknown.) It was at about this time that Dr Marshman arrived. * * * 62 There is now no doubt that at some time during the course of 14 August, Mr Sherry lost a large amount of blood. Exactly how that came about is one, but not the, principal issue for determination. The plaintiff's case as it proceeded may, I hope without unfairness to the complexities of the evidence and arguments, be reduced to this. 63 Mr Sherry died as a result of a massive interthoracic haemorrhage, which commenced at about 1.30 pm on 14 August. What precipitated the bleeding was the removal of the chest drains at about 1.30 pm. He bled, at a consistent rate of about 250 - 300 ml per hour, into the subpleural cavity until his heart ceased output at what must have been 11.00 pm or thereabouts. There were, at no later than 6.00 pm, sufficient signs of the haemorrhage to alert SAH nurses, and/or any and each of the doctor defendants, to the blood loss, had they exercised the appropriate level of care and skill. Those signs are recorded in the ICU Chart and the Progress Notes. In addition, what was physically observed by members of Mr Sherry's family ought also to have been observed by nursing staff and the doctor defendants, and ought to have alerted them to what was, in fact, Mr Sherry's progressively deteriorating condition. They failed to make the appropriate observations or correctly to interpret the data, and in so doing failed to discharge the duty of care they owed to Mr Sherry (or, alternatively, failed to honour their obligations under contract). 64 The response made by all defendants is, in effect, that although in retrospect there can be seen some signs consistent with haemorrhage, other recordings were of signs that were inconsistent with blood loss and not such as to signify to a reasonably careful and skilful practitioner (either nurse or doctor) that Mr Sherry was bleeding internally. There was, accordingly, no breach of duty, or of contract. 65 I propose now to make some reference to those of the readings recorded in the ICU Chart to which particular attention was paid, and which consequently featured prominently in the areas of dispute. These are:

blood pressure
temperature
pulse rate
respiration rate
urine output 66 In general terms, each of these has some significance as an indicator of circulating blood volume (although none is exclusively used for that purpose). Each can, therefore, indicate blood loss. 67 Reduced fluid volume in the human body is known as "hypovolaemia". Whilst hypovolaemia may be attributable to loss of fluids other than blood, for present purposes the term is here used to refer to reduced blood volume in the circulatory system. A major question in the present proceedings is whether the signs were such as to alert a competent nurse or medical practitioner, exercising ordinary skill and care, to blood loss in Mr Sherry, and, if those signs did exist at any time prior to 11.00 pm, when they did. 68 CVP is measured in centimetres of water or millimetres of mercury. Although the evidence on this was far from consistent, a fair consensus is that a CVP reading in fit, healthy people without disease could be expected to be measured in the range of 3 - 12. However, what is to be considered normal or appropriate for any particular patient depends upon factors peculiar to that patient. Low CVP may be an indicator of hypovolaemia, but is not necessarily so. 69 Blood pressure is measured upon two graphs, systolic and diastolic. A typical healthy diastolic blood pressure is in the range of 70 - 80, and a typical healthy systolic blood pressure is around 120. 70 Normal human temperature is 37 degrees Celsius. Anything in excess of that is called "pyrexia". 71 The range of normal pulse (heart) rates is between 60 and 75/80 beats per minute ("bpm"). When a heart rate exceeds 100 bpm, the condition of "tachycardia" is diagnosed. Tachycardia is another sign that, inter alia, may indicate hypovolaemia. 72 The evidence concerning the significance of the respiratory rate was not very specific. It appears indicatory of some dysfunction signifying, at least, a need for alertness or further investigation. 73 Urine output is regarded as an important sign and was recorded on an hourly basis. An indwelling catheter drains into a container and the urine produced is measured. "Acceptable" urine output is measured by reference to body weight. In a man of Mr Sherry's body weight, "acceptable" urine output is about 30 ml per hour. Urine output below "acceptable" levels is known as "oliguria". Oliguria is another sign that can indicate, inter alia, hypovolaemia. 74 The information conveyed by Mr Sherry's ICU Chart for 13 August is, for the most part, unremarkable. It shows that, on his transfer to the ICU from surgery, he bled moderately heavily. The blood was drained through the chest drains which had been inserted, and was measured. This was, properly, regarded as a matter requiring observation, but not serious concern. The chest drains were removed at about 1.30 pm on 14 August, indicating that the bleeding had ceased. Mr Sherry was given blood transfusions and fluid replenishment in the form Hartmans solution. He was given morphine for pain relief and GTN (Tridil) to lower his blood pressure. His temperature climbed from what appears to have been a fairly low base (consistent with the plaintiff's observations on her first visit) and then stabilised at 37 or 38 degrees from 2.00 pm. 75 Also measured was the pulse rate or heart rate. In Mr Sherry's case, a normal pulse rate, prior to surgery, was somewhere between 70 and 80 bpm.

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urine output 82 Considerable fluctuation is shown in the urine output over 13 and 14 August. In the hour before 2.00 pm and 3.00 pm on 13 August urine output was 25 ml; between 8.00 pm and 9.00 pm and 9.00 pm and 10.00 pm it was 80 ml for each hour; between 10.00 pm and 11.00 pm it was 35 ml. All of these readings were satisfactory. On 14 August, except for the hour between 2.00 am and 3.00 am, when it was 25 ml, it was above the 30 ml per hour which is considered the minimum acceptable, and between 5.00 am and 6.00 am it was as high as 80 ml. But between 10.00 am and 11.00 am it dropped to 10 ml and in the following hour to 15 ml. Between 1.00 pm and 2.00 pm it was 40 ml; between 2.00 pm and 3.00 pm 140 ml; between 3.00 pm and 4.00 pm 100 ml; between 4.00 and 5.00 pm 40 ml. There was then a significant drop. Between 5.00 and 6.00 pm it was 20 ml, between 6.00 and 7.00 pm 20 ml, between 7.00 and 8.00 pm it was 10 ml; between 8.00 pm and 9.00 pm and 9.00 pm and 10.00 pm it was recorded as 50 ml for each hour; between 10.00 pm and 11.00 pm it was recorded as 25 ml. The ICU Chart also records that between 11.00 pm and 12.00 midnight there was a urine output of 50 ml. It was generally agreed that the record of urine output of 50 ml between 11.00 pm and 12.00 midnight could not be correct (although different explanations for the recording were proposed). More importantly, counsel for the plaintiff submitted that the records of 50 ml each hour between 8.00 pm and 10.00 pm ought not be accepted as accurate. I will return to this record. * * * 83 One of the many factors complicating the analysis of the aetiology of Mr Sherry's death is that, even on post-mortem examination, the source of the haemorrhage was never determined. The pathologist reported to the Coroner: "The source of the haemorrhage was not able to be identified. There were no bleeding points in any of the major blood vessels or heart and no evidence of leakage could be demonstrated from the coronary artery bypass graft. The presence of abundant haemorrhage into the left chest wall tissues raises the possibility that the source of bleeding may have been from an intercostal vessel, but this could not be proven at autopsy." 84 This uncertainty was one of the circumstances that led to a dramatic conflict in the approaches taken by the medical experts called on behalf of the various parties. As the evidence progressed, three distinct theories emerged. These came at times to be referred to as scenarios (i), (ii) and (iii) (although there was no consistency in the numbering, and little as to the precise details of the theories). These scenarios were:

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scenario (iii): a sudden and massive bleed, attributable to unspecified causes, at some time around 10.00 pm. This was the theory favoured by Professor Hillman ("the Hillman theory"). 85 At one end of the spectrum lies the theory promulgated on behalf of the plaintiff: that an intercostal blood vessel had been damaged on insertion of the drain immediately post-surgery, but that the presence of the drains prevented bleeding from that wound until their removal at 1.30 pm on 14 August. Thereafter there was gradual and relatively consistent bleeding for approximately ten hours. On this theory, there would have been (and, on the plaintiff's case, retrospective examination of the documentation shows that there were) a number of signs which should have alerted the nursing and medical staff to Mr Sherry's condition. 86 At the other end of the spectrum lies the theory advanced on behalf of SAH by Professor Hillman: that, for some unexplained and inexplicable reason, sudden and massive bleeding began at about 10.10 pm. This theory had no proponents other than Professor Hillman. 87 The intermediate theory is that bleeding commenced at some time which may have been 1.30 or thereabouts, but was, inter alia, very minor ("more or less a trickle"), but accelerated, again at a time which could not be pinpointed, but around 6.30 pm. 88 The timing and the mechanism of the commencement of bleeding is of some significance. I emphasise that there is no suggestion that it was attributable to any actionable failing in the course of the surgery; its significance lies principally in its derivation, and the associated opportunity of observers to identify the signs and act upon them. 89 A proponent of scenario (i) was Mr Brian Glenville, a consultant cardio-thoracic surgeon, who practises in London. Mr Glenville provided three reports, dated 3 January 2002, 6 February 2002 and 15 May 2004. He travelled to Australia for the purpose of giving evidence and was extensively examined and cross-examined. I note here that a significant attack was made upon Mr Glenville's credibility, an issue to which I will return. 90 In his first report Mr Glenville began (in relation to this question) by observing that: "The bleeding leading to the patient's death is a matter of conjecture."

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He then went on to express the view, on the balance of probabilities, that the source of the bleeding was an intercostal vessel, damaged at the time of intercostal drain insertion, which had been compressed by the drain, which thus prevented bleeding until its subsequent removal. Bleeding was thus precipitated by the drain removal. 91 In or about May 2004 Mr Glenville was asked to address a series of additional specific questions. One of these was whether he agreed that, having regard to the available information, it was more likely than not that bleeding into Mr Sherry's chest cavity commenced shortly after removal of the chest drains and then continued at a relatively constant rate up until about 11.00 pm when he suffered the cardiac arrest. Mr Glenville was expressly asked to give reasons for the opinion he expressed. 92 In reply, Mr Glenville restated his view that Mr Sherry's death was caused by hypovolaemia, in turn caused by bleeding from an intercostal vessel after removal of the drain. He noted an alternative explanation (scenario (iii), the Hillman theory) that, mysteriously after Dr Marshman's visit at about 9.30, Mr Sherry, who had previously been perfectly well, suffered a sudden and massive bleed before 10.30 pm and that this massive and sudden and unexplained bleed was not evident at post-mortem. He rejected this as beyond the bounds of reasonable credibility. 93 In his report, Mr Glenville did not in terms clearly address the request to provide reasons for his opinion. He did observe that until about 2.00 pm (that is, shortly after the removal of the chest drains) Mr Sherry's pulse rate had remained steady at around 70 - 75 bpm and that thereafter a steady increase in the pulse rate was recorded, so that by 4.00 pm it was just under 100 bpm, later peaking at around 110 bpm (that was at about 6.00 pm) and never dropping back below 100 bpm. To Mr Glenville this heart rate constituted tachycardia, which he took as evidence of blood loss having commenced at about 2.00 pm. Unlike some cardiac patients, Mr Sherry had not, prior to 2.00 pm, exhibited evidence of tachycardia. The 2.00 pm and after tachycardia was, therefore, one indicator of the time of the commencement of bleeding. 94 One difficulty with Mr Glenville's report is that he appears to have run together the two discrete questions I have identified - the precise nature and cause of the bleeding, and what should have been observed by the medical and nursing professionals. This is not surprising and he was not the only expert to do so. The recorded signs were relevant both to the reconstruction effort to determine the aetiology of the bleeding, and to considering what ought to have been observed, and what conclusions ought to have been drawn from the observations and when they ought to have been drawn. 95 Mr Glenville thus assumed that the bleeding commenced shortly after 1.30 pm and continued at a steady rate until Mr Sherry's death. It was in this context that he rejected the alternative explanation of a late (about 10.30 pm) commencement. Mr Glenville appears in part to have based his opinion upon the absence of identification of a bleeding site at post-mortem. From this, he appears to have concluded that the bleeding was from a relatively small site; and, in turn, from this, that the bleeding was at a steady rate. 96 In cross-examination he agreed that, by contrast, certain other measurements recorded on the ICU Chart indicated stability. These were the measures of CVP, blood pressure, temperature and respiration rate. 97 As I have indicated, in submissions a powerful attack was made upon Mr Glenville's credibility. He was characterised as "not a reliable expert witness". It was argued that he had exaggerated his expertise and expressed views regarding matters outside his expertise; that he was an advocate for the plaintiff, that he was argumentative, that he declined to make concessions and expressed opinions stronger than and at times inconsistent with those expressed in his reports; and that his evidence was affected by hindsight bias. I should say now that I disregard (as a matter relevant to credibility) any expression by him of views concerning matters outside his expertise. This is not something that goes to credibility. Containment of evidence outside an expert's area of expertise lies within the responsibility of counsel, both counsel who called the witness, and counsel for opposing parties. There was nothing in Mr Glenville's evidence that went beyond what might reasonably be expected, or tolerated, of a witness of his established expertise. 98 I would add that I did not obtain the impression that Mr Glenville was an advocate for the plaintiff or argumentative. He did hold strong views, and adhered to them firmly, as did many of the experts called by all parties. That does not make him an advocate for anything other than his own opinions. I did not think that Mr Glenville's opinions were in any way tailored improperly to accommodate the cause of the plaintiff, this being what underlay the submission. 99 I note here that, towards the end of his evidence, Mr Glenville was significantly discomposed by the behaviour (as he described it) of a woman, part of the doctor defendants' team, who, he said, was conveying her disapprobation of his evidence. Although, at that time, I had had no view of the woman because of her location behind legal representatives, there was a later time when I did, briefly, observe conduct of the kind described. It may well have been that this conduct affected Mr Glenville's demeanour. Certainly he was seriously shaken by it. 100 I will turn now in more detail to other matters raised in the attack on Mr Glenville's credibility. In relation to the claim that he exaggerated his expertise, counsel for the doctor defendants pointed to evidence given early in his evidence-in-chief in which he said that he had "carried out clinical work" outside the United Kingdom, in, inter alia, various states of Australia. He was asked what procedures he had carried out at the Royal North Shore Hospital ("RNSH") in Sydney and answered: "This was, I think, one of the first quadruple bypasses performed as a beating heart procedure." (t 820) 101 He was cross-examined by senior counsel for SAH and said that the purpose of his trip to Australia was: "To teach and advance the concepts behind beating heart surgery." (t 980)

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to which he replied that he had "definitely operated". 102 It was submitted that this was contradicted by his later answers to questions asked in cross-examination by senior counsel for the doctor defendants, because Mr Glenville had not in fact performed any operations in Australia but had instead placed a stabiliser while others carried out the surgery. 103 In order to consider the legitimacy of the submission it is necessary to turn to the transcript. The first of the questions and answers referred to, concerning Mr Glenville's claims to have "operated" in Sydney were these: "Q: Did that involve you, in each of the cities you mentioned, undertaking actual surgery, or teaching by means of some video or other model-type process? A: It varied between cities. Q: In Sydney? A: In Sydney, I definitely operated. I can't recall whether I lectured here or not." (t 981) 104 It will be seen that the question was directed, not to whether Mr Glenville had acted as the surgeon but to the method of teaching he had adopted. In those circumstances his answer that he "definitely operated" could not be seen to be misleading, even without the further comments I am about to make. What Mr Glenville was here doing was drawing a distinction between teaching by practical demonstration, and teaching by illustration. In those circumstances I do not think it could be said to be an exaggeration of what he had done to say that he had "operated" when he had in fact acted as assistant to the surgeon who actually performed the surgery. 105 But there is another reason also why this criticism of Mr Glenville should be rejected. Mr Glenville was asked: "Q: You told Mr Garling [senior counsel for SAH] that you didn't have much involvement, or not more than the first couple of hours, post surgery with the operation that you performed at Royal North Shore Hospital." (t 1095) 106 Mr Glenville began to answer this question "No", but was cut off by the following question, which was: "Q: Did you have any involvement at all in the post-operative care of that patient?" (t 1095)

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To this Mr Glenville replied: "A: I think you said that I performed, and I told you it was the surgeon that performed it." 107 He was challenged with this, it being suggested that he had claimed in his evidence-in-chief to have "performed" the surgery. To this Mr Glenville replied: "I came to teach the operation. What I did at the North Shore Hospital was to place the stabiliser in all four positions so that the surgeon who was performing the operation was able to do it. I was the other side of the operating table when the anastomoses were being performed." (t 1095) 108 From this evidence it is plain that Mr Glenville was at some pains to ensure that there was no confusion or misleading about his role in the RNSH surgery. It was he who, when he perceived that cross-examining counsel may have been under some misapprehension, volunteered information as to the strictly correct position. This attack on Mr Glenville's credibility fails. 109 A related criticism made of Mr Glenville was that his trip to Australia had been funded by the manufacturer of the stabilising equipment used in the surgery. In fact, Mr Glenville said that more than one stabiliser was featured; and, in any event, the fact that the tour was funded by the manufacturing company does not affect his credibility in relation to the present issues. I recognise that what is suggested is that Mr Glenville put himself forward as a person who, because of his eminence in his field, had been invited by Australian practitioners to teach and lecture, when the reality was that the excursion was a promotional one instigated by a medical manufacturing company, for which he was not necessarily selected by reason of his eminence or expertise. I do not read Mr Glenville's evidence as an attempt to convey a false impression of his place in the cardiology firmament: and it is significant that no attack was in fact made upon his expertise. 110 Counsel also relied upon one curious answer given by Mr Glenville. He answered "Yes" to the following question: "Q: Was your evidence-in-chief calculated to give her Honour the impression that you were invited out here in order to enlighten the colonial profession about beating heart surgery?" (t 1097)

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It was put that Mr Glenville, when challenged with this in cross-examination, sought to avoid acknowledging his mistake. That is not how I read the transcript, or how I recall the cross-examination. It seems to me that Mr Glenville was confused and surprised by what was being put to him. He said that the word was not spelt correctly, and that he could not be sure of what was intended. However, he did agree that if the word was "side lie", then the evidence he had earlier given was incorrect. I am satisfied that his original evidence represented a misunderstanding of what was contained in the note. It affects the acceptance of his evidence as to anything that flowed from the error, but it does not, in any general sense, affect my assessment of Mr Glenville's credibility. 118 There was one instance where Mr Glenville's evidence contradicted his report and with which he was ultimately confronted. In cross-examination he said that a nursing note, at 10.10 pm, that Mr Sherry was haemodynamically stable was not correct and he acceded to the proposition that "there was no way that he could be so described at that time". He then accepted that this was directly contradictory of his report, that his report was correct, and that the nurse's note was accurate. 119 This is the only concrete example thrown up in the written submissions that could possibly give me cause to doubt Mr Glenville's reliability or accuracy. It is insufficient to persuade me that I should so doubt him. I formed, and maintain, the view that Mr Glenville gave careful and helpful evidence. That is not, of course, to say that all of his opinions should be accepted; it is merely to say that those opinions expressed by him should be accepted as representing his genuine opinions and are worthy of evaluation along with all of the other expert opinions. 120 Other examples were given of Mr Glenville's cross-examination but I think I have said enough to make it plain that I do not accept the criticisms of his evidence on the basis of his credibility or lack thereof. 121 Mr Glenville's views as to how and when the bleeding commenced were shared by Dr Peter Stow. Dr Stow is an intensive care specialist, currently the Deputy Director of the Intensive Care Unit at the Geelong Hospital in Victoria. In a report dated 11 May 2004 Dr Stow analysed a very large volume of material which had been provided to him and answered a series of detailed questions put to him by the plaintiff's legal representatives. At paragraph 1.8 of his report Dr Stow wrote: "On the balance of probability, therefore, I believe that there was a causal relationship between chest drain removal and the development of Mr Sherry's tachycardia ..." (emphasis in original) 122 Like Mr Glenville, Dr Stow did not consider this as a discrete question: he ran his consideration of it together with questions concerning what an intensive care nurse or an intensive care doctor exercising ordinary skill and competence ought to have done in the context of the recorded signs and symptoms or which were, or should have been, observed. It is therefore necessary to attempt to dissect the reasoning process that brought him to the conclusion I have extracted above. The relevant factors, essentially, as outlined in the report, were:

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We see at 5 o'clock a fall in urinary output, values of 20, 20 and 10. That, by definition, is three hours of oliguria, low urine output. That is one of the consistent signs of hypovolaemia. We see a subtle fall in his blood pressure from 3pm to 6pm, and then a plateauing off. It's this, again, combination of factors that leads me to believe that he was developing worsening hypovolaemia. The combination of low CVP, the combination of a high heart rate and the combination of low urine output, all are three very important parameters that point to hypovolaemia. ...." (t 1327) 126 Integral to Dr Stow's opinion was the further opinion that Mr Sherry had "remarkable" powers of compensation, and that he was compensating throughout the process of blood loss. He explained the process of "compensation" as the physiological response of the body to loss of fluid; in protecting itself from the consequences of fluid loss, the body peripherally "vasoconstricts" - that is, it limits fluid output and retains the fluid it has in the circulation system. This explains the phenomenon of oliguria: as I understand the evidence, in order to compensate for the fluid (in this case, blood) loss, the body ceases or minimises urinary output. Dr Stow accepted, in cross-examination, that the ICU Chart also showed two hours of oliguria before the drain removal, at between 10.00 and 11.00 am and 11.00 am and midday, when urine output was, respectively, 10 and 15 ml. Normal urine output then resumed until between 5.00 and 6.00 pm. This earlier period of oliguria also coincided with an increase in heart rate and temperature, and a decrease in CVP. Dr Stow accepted that, on his interpretation of the signs, these readings were themselves suggestive of an episode of hypovolaemia at a time before the removal of the chest drains. This was one of the very few rabbits in this case that was not chased into its burrow. Neither Dr Stow nor any other expert was ever really asked to explain how that earlier episode of apparent possible hypovolaemia, from which, it appeared, Mr Sherry made a complete recovery, fitted in with the theory that the fatal haemorrhage was caused by the 1.30 pm removal of the chest drains. 127 Dr Stow was asked about the record, at shortly after 10.10 pm, of sudden increase in left pleuritic chest pain (t 1677). It was put to him that this suggested a new development in Mr Sherry's condition. He was of the view that it was not a new development but an extension of what had begun earlier. When pressed, he agreed that the records could have been consistent with the development of a haematoma between the chest wall and the parietal pleura but said that he thought that that explanation was unlikely. This a reference to the theory advanced by Dr Marshman, with which I will deal below. He explicitly disagreed with the proposition that most of the bleeding occurred after 10.00 pm (t 1685). He also disagreed with the proposition that the signs excluded progressive haemorrhage at a steady rate from 1.30 pm until 10.00 pm. 128 Dr Stow did agree that the haemorrhage, assuming it was from an intercostal artery, could have been triggered by the dislodgment of a blood clot (as distinct from the removal of the drains) and that a blood clot could be dislodged by something as innocuous as patient movement or coughing. The significance of this, as I understand it, is as to timing. It was accepted that, even on the tamponading theory (the Glenville/Stow theory), clotting may have occurred: the point of the questioning, if I understand it correctly, is that the clot may have remained in place until some uncertain time after drain removal, and have been dislodged by some unobservable mechanism such as coughing or moving. Such a scenario would accord with the Marshman theory. It would mean that bleeding did not necessarily commence at 1.30 pm, but may have commenced at any time thereafter. It would absolve nurses and doctors of fault in failing to observe any signs of bleeding until an indeterminate time. 129 Dr Stow also accepted that, even on the 1.30 pm commencement theory, there may have been variations in the rate of bleeding, and that it was not possible to define with certainty the rate of accumulation of blood. He nevertheless maintained his theory that the rate of bleeding had a degree of consistency. 130 Some of the matters mentioned above have more significance for the question of what the signs should have meant to the medical practitioners, but they also overlap with the present question. 131 The attack made on Dr Stow's credibility was of a different nature to that made upon that of Mr Glenville. It essentially depended upon three propositions. The first was that he had made a fundamental error in the interpretation of a medical term and that this had a domino effect upon the conclusions he subsequently drew. The second was an accusation of rigidity in his views and a refusal to acknowledge that contrary or different views existed or might be legitimate. The third matter was that Dr Stow's evidence was the result of "hindsight bias". 132 I will begin with the challenge to the flexibility (or asserted inflexibility) of Dr Stow's approach to views of other medical practitioners. Analysis of the matters argued in support fails to sustain the criticism. I do not propose to take up time with all of the detail of all of the matters that were put, but will content myself with reference to some examples which are illustrative of the approach taken on behalf of the defendants. Reference was made to his views on the importance of CVP readings which, it was contended: " ... were both adamant and strikingly at odds with other witnesses."

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Extracts from cross-examination were then given. These support the proposition that, like Mr Glenville (and other witnesses), Dr Stow expressed his views strongly, that he held them firmly, and that he adhered to them in cross-examination. They do not support the proposition that he refused to acknowledge that different views existed. No extract of the transcript was identified in the submissions tending to show that Dr Stow had been asked about a specific view, contrary to his own, expressed by other experts, the existence of which he rejected. The detailed arguments on this matter, in fact, simply sought to contrast the views of Dr Stow with those of other witnesses and authors of published studies. At no time did they demonstrate that Dr Stow refused to acknowledge the existence of the views of others. They tended to show that, in some respects, he disagreed with the expressed views of other practitioners. Indeed, one of the matters put in support is contradictory of the proposition. I will quote from the written submission: "(4) Dr Stow was taken to also taken to (sic) various published studies on CVP and, having read these overnight, he agreed (contrary to his evidence of the previous day) that the absolute value of CVP is less important than changes in response to therapy (T 1724.11-32)." 133 It was also submitted that Dr Stow would not accept that hospitals other than his own might do things differently, and this was followed by two examples. Neither of these supports the proposition. The matters raised were simply matters of his perception of the facts concerning the manner in which hospitals undertook certain tasks. It may be - I make no finding - that Dr Stow was unaware of the fact (if it be the fact) that, in some respects, hospitals other than his own do things differently. This is not indicative of the closed mind that was attributed to him. 134 It was also contended that Dr Stow not only acknowledged the phenomenon of "hindsight bias", but also accepted that he could not rule out that it may have affected his report. If this is a correct characterisation of his evidence, it does little to support the contention that Dr Stow should not be accepted as a reliable witness. It would suggest, to the contrary, that he was willing to consider the possibility of unconscious flaws in his own approach. However, I do not consider the submission to be an accurate paraphrase of Dr Stow's evidence. The concept of "hindsight bias" arose when Dr Stow was asked this question: "From when you were first asked to consider this case, you in fact knew the outcome, didn't you?" (t 1729)

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Again, no such signs existed. 145 Of the three scenarios proposed Professor Hillman favoured the third. He explained this by saying: "It is mainly because the observations are stable and that the trends are taken into account in intensive care. There is very little in the way of trends that suggests that one has an unstable patient here." (up to about 10.00 pm) (t 2304) 146 In an area of cross-examination on behalf of the plaintiff to which it will be necessary to return for other reasons, Professor Hillman reluctantly accepted that he could not nominate any vessel from which the blood hypothesised in his scenario could have come. This is just one circumstance that seriously undermines that theory. 147 Professor Hillman's credibility was, like that of so many of the experts, put seriously in issue. He was a difficult witness to assess. I entertained, and entertain, no doubts about his bona fides, nor about his expertise as a medical practitioner. He is plainly an eminent, highly qualified and highly respected specialist. However, I gained the clear impression, during the course of his lengthy cross-examination, and the impression is reinforced on reading the transcript, that Professor Hillman did not bring an impartial, objective, or dispassionate mind to the issue. This was not attributable to any mala fides on his part. On the contrary, it was, I thought, attributable to his ultimate unbounded faith in the infallibility, commitment and dedication of his medical colleagues. He steadfastly declined to contemplate the possibility that any of the medical practitioners may have made an erroneous judgement or may have overlooked any signs that Mr Sherry was, at any time before 10.00 pm, hypovolaemic. For example, he was asked this question: "You are unwilling to even consider the possibility that he [Dr Walsh] might have shown, displayed, a standard a care towards Mr Sherry less than that that an ordinary skilled medical practitioner would show, aren't you? You won't even consider that as a possibility?" (t 2366)

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Yet, when asked in cross-examination whether he accepted that there was two litres or more of blood in Mr Sherry's chest, he replied: "No. On the chest x-ray - I mean, if you can put yourself in the mind of Dr Walsh, what you know - like what you would have seen was a lot of fluid. Now, you can't assume it was blood. But I guess the most likely thing is it's blood, but don't know it's blood at that time. ... What one can say - and I know it sounds like semantics, is that there was a lot of fluids in the chest and you really can't sort of give an accurate volume of how much it was, or what it consisted of." (t 2451) 153 When further pressed, Professor Hillman conceded that it would be very difficult to imagine that the effusion shown on the x-ray could be other than blood. A little later he adhered to his earlier position, that he could not say that the effusion shown on the x-ray was a haemothorax. All he would accept was that it was fluid of one sort or another. 154 Although, in the light of what was known after Dr Wilson had reopened Mr Sherry's incision, this evidence may appear to be prevaricative, I do not place too much emphasis upon it. Other witnesses, for example Professor Skowronski (see below (t 3689)), and even Dr Stow, were both cautious in assuming that the effusion in the chest cavity would have been recognised as blood. 155 Another example concerns evidence to which I have already referred, that is, cross-examination about the possible cause of bleeding as hypothesised by him. Professor Hillman was asked, initially, if he could nominate any other vessel in the chest likely to have been interfered with by a MIDCAB procedure that would produce two litres of blood in the 15 - 30 minutes contemplated by his theory. Initially, having disclaimed relevant expertise, Professor Hillman suggested that the intercostal artery might produce "pretty brisk bleeding". However, when again pressed, he said he thought that was unlikely. 156 The question was repeated, and Professor Hillman replied: "Look, look, I have said that I'm not too sure. I mean, it seemed - you know, what you are saying has a large - you know, has a large amount of credibility to it, but there are other large vessels in the chest. Now, how they would be bleeding under these circumstances, I don't know, but whatever happens in this case is rare anyway, so I'm not actually trying to avoid this, but it is out of my area of expertise, why this person was bleeding from - or where from, because it is not my usual role to stop it." (t 2331)

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Finally, when it was suggested that there was no other vessel likely to be bleeding 24 hours or more after surgery, he answered: "I think you are right, but there - having said that, there are many, many vessels in the chest, in fact, there are more vessels in the chest than anywhere else, that can, you know, cause that rate of bleeding, but I couldn't see why there would be bleeding." (t 2332) 157 He agreed that, in the event that the bleeding had emanated from one of these vessels, it would have been apparent on post-mortem. The post-mortem yielded no such evidence. 158 When asked yet again where the blood could have come from on his scenario, he answered: "OK, look, you know, I think that's the really sort of puzzling part about this case, because it is not clear. I mean, it wasn't clear at the time and it wasn't clear at the post-mortem, from what I remember. So it is one of these cases in medicine where you really are not clear. I mean, something unusual has happened. Where the blood loss has come from, you know, I'm really not too sure. It is uncommon. This is not a common thing." (t 2332) 159 I am hesitant to comment adversely upon the evidence of so eminent and committed a practitioner. However, it has to be observed that Professor Hillman's favoured explanation was not adopted by any other medical expert (Professor Tatoulis characterised it as "very, very, very unlikely" and "impossible" and Mr Glenville, in his third report, discounted a similar hypothesis as "so unlikely as to be beyond reasonable credibility") and it was not seriously propounded on behalf of the doctor defendants, or, indeed, SAH, on whose behalf Professor Hillman was called. Only Dr Wilson appeared to give the theory any support at all and that was equivocal. In my opinion, Professor Hillman worked backwards: starting with the proposition or the assumption that the doctors would not and could not have been, and were not, negligent, he searched for the most benign theory that would fit that assumption, and came up with a theory that is unsupportable. 160 Professor Hillman's unshakable faith in his medical colleagues, and his resultant commitment to a theory of bleeding that would cast the fewest aspersions upon any of them, makes it difficult to accept his assessment. When pressed, he was unable with any degree of logic to support his favoured scenario and fell back, eventually, on lack of expertise. As I have indicated above, I did not think his objectivity was such as to imbue his evidence with the reliability one would wish. Accordingly, with the greatest respect for his qualifications and expertise in his own field, and, indeed, his motivation, I must treat his opinions with caution. 161 Dr Marshman advanced his own theory of the aetiology of the blood loss. He was disinclined to any theory that the bleeding emanated from the surgical incision (t 3238); he was also disinclined to the theory that the bleeding emanated from the drain sites because these were below the incision and he would have expected blood from either of those sites to have gone intrapleurally, i.e. into the pleura. Accordingly, he theorised that the blood came from one of the intercostal branches of the mammary artery, and retracted into the chest wall and that bleeding began at about two to four hours before the time of cardiac arrest, subpleurally and was initially contained because of the pleura; after it had reached a certain quantity it began draining into the pleural space and ruptured the pleura, causing the bleeding to increase. The rupture of the pleura theory is important because it would explain the sudden pain at 10.10 pm and also partially, at least, explain the absence of unequivocal signs of hypovolaemia during the early part of the afternoon. 162 Dr Marshman believed that the bleeding had taken place over a two to four hour period (presumably, counting back from the time of arrest, making commencement between about 7.00 pm and 9.00 pm). 163 This theory provides an explanation for the source of the bleeding but Dr Marshman was unable to give an explanation for its cause. He considered scenario (i) (the Glenville/Stow theory) to be "quite unlikely". This was because he had never seen or heard of it happening previously; because if that were the explanation, the bleeding could not have presented in the fashion it did, intrapleurally, without emerging from the drain site (there being no evidence of blood having emerged from the drain site). 164 In cross-examination Dr Marshman was asked to restate his theory. He said: " I suspect it probably started within that period of time [about four hours] prior to Mr Sherry's death. I suspect the rate was probably less early on and then increased. I say that because of the haemodynamic profile that he exhibits here and because of the pain that he had lastly exhibited and which was the reason for the nurse notifying the resident." (t 3430) 165 It was repeatedly put to Dr Marshman in cross-examination that there was only one known event which could have triggered bleeding: this was the removal of the drains. Dr Marshman disagreed with the fundamental premise underlying this theory: that is, that, although damage had been done during surgery to a vessel which caused it to bleed, the placement of one or other of the drains had the effect of staunching the flow of blood until it was removed (the Glenville/Stow theory). His view was that, in those circumstances, the drain would have prevented clotting, and therefore caused the bleeding to continue; removal of the drain would have been more likely to have allowed the blood to clot (t 3438, t 3521). (I do not understand this view to have been shared, at least expressly, by any other expert.) 166 Counsel for the plaintiff pressed Dr Marshman, in particular in relation to the coincidence of the commencement of the tachycardia recorded on the ICU Chart at 2.00 pm, and escalating to 6.00 pm, and the removal of the drains. In answer to this, Dr Marshman pointed out that it would be inappropriate to focus on only one parameter, and that others pointed in a different direction. He specifically identified an increase in urine output from 2.00 pm to 3.00 pm, a sign quite inconsistent with hypovolaemia at that time. 167 Mr Glenville rejected the Marshman theory, thinking it an "unlikely scenario". He thought that the haemodynamic data over the course of the afternoon and evening indicated "steady, continual blood loss" (t 968). 168 Dr Stow also rejected the Marshman theory. He was unattracted to the notion that the theory provided an explanation for the sudden onset of or increase in chest pain at 10.10 pm, saying that he thought that was more likely an extension of what had developed earlier. He did not agree that the chest pain was consistent with the formation of a haematoma between the chest wall and the parietal pleura, considering it more likely that it was related to the stretch and distension of the parietal pleura, thus causing pain. When pressed, he accepted that the chest pain was "consistent with" the development of a haematoma, but thought that an unlikely explanation for the chest pain (t 1677 - 8). 169 Professor James Tatoulis was also called on behalf of SAH. He is a specialist cardiac surgeon, the Director of Cardio-thoracic Surgery at the Melbourne Private Hospital, Clinical Director of Cardiac Services at Royal Melbourne Hospital and for Melbourne Health and Associate Professor of Surgery at the University of Melbourne. Professor Tatoulis provided a report dated 9 December 2002. In this report he dealt with various of the issues to which his attention had been drawn. He does not appear to have been asked to express a view as to the aetiology of the haemorrhage, and, in his report, he did not do so. 170 In cross-examination by senior counsel for the doctor defendants, Professor Tatoulis favoured the Marshman theory. This was because the 10.30 x-ray showed blood in the chest wall. He thought that Mr Sherry had early in the process experienced some bleeding into the chest wall, to some degree into the pleura and that as it accumulated, the blood vessel ruptured, shedding its contents into the pleural cavity. Interestingly, Professor Tatoulis had a different slant on the cause of death. He attributed this only partly to severe blood loss; he thought that the presence of the blood in the pleura may have impeded the blood supply to the internal mammary artery, the new bypass graft; and that, as a compensatory mechanism, the bypass graft and Mr Sherry's own arteries went into spasm, reducing the blood flow to the heart and putting the heart under stress. Pre-existing narrowing of two arteries would have rendered Mr Sherry more vulnerable to this chain of events (t 1972). Professor Tatoulis excluded the other two theories. He described the sudden massive haemorrhage (the Hillman) theory as "very, very, very unlikely" and "impossible". He described the drain removal (i.e. the Glenville/Stow) theory as "unlikely". He explained this by saying that, if that were the explanation, he would have expected Mr Sherry's blood pressure gradually to have declined over a period and he would not have expected the signs of haemodynamic stability that had been recorded. Consequently, he adopted a version of the Marshman theory. It is, however, of some significance that even on this view, he postulated the commencement of bleeding at about 1.30 pm, that is, coinciding with the drain removal, although not necessarily causally related to that event, or explained by it. 171 Professor Tatoulis' cross-examination did not begin well for him. He acknowledged an inaccuracy in his report. This arose from his recording the two hours of oliguria up to midday on 14 August, followed by his assertion that, otherwise, the urine output varied from 25 ml to 140 ml per hour. This omitted the three (very significant) hours of oliguria between 5.00 pm and 8.00 pm. This is, in my opinion, in the circumstances of this case, a major inaccuracy, favouring (if Professor Tatoulis were correct) the defendants. It was compounded by Professor Tatoulis' response to cross-examination on the subject. When asked if the statement that the rest of the time the urine output had varied as he recorded was incorrect, Professor Tatoulis' initial response was to accept that "strictly speaking", the statement was incorrect, thus playing down the significance of the error. Eventually, he admitted that the statement was incorrect. He then declined to concede that the three hours of urine output recorded at 6.00 pm, 7.00 pm and 8.00 pm were at unacceptable levels. This was in contradistinction to the evidence of all other medical witnesses. 172 Professor Tatoulis was then cross-examined about another statement in his report, in which he said that Mr Sherry's temperature was over 38 degrees Celsius from 2.00 pm on 14 August. This could not be supported by even a cursory reference to the ICU Chart. The fact was that Mr Sherry's temperature was recorded as 38 degrees or below throughout. Professor Tatoulis sought to avoid the consequences of this discrepancy in a way that simply is unsustainable. Put briefly, the temperature readings were placed upon the ICU Chart by means of green dots on the graph part of the chart. These were joined by a green line indicating the trend of the temperature readings. In my opinion, it was plain beyond argument that the lines were intended merely to join the dots, indicating temperature trends. They are not inserted with any degree of care, and do not purport to record any readings. Professor Tatoulis sought to suggest that it was the line, and not the dots, that reflected the temperature readings. 173 I am satisfied that this could not be the case. The ICU Chart itself makes it perfectly plain that it is the dots that record the temperature. The green line joining the dots is merely a device to demonstrate the trend in temperature and was never intended to be substituted for the dots as to any specific reading. This much is apparent to a lay observer. In any event, there was no attempt on the part of SAH to call evidence to suggest that the green lines had any significance other than to join the dots that represent the actual readings. 174 Professor Tatoulis' error about temperature is itself of little consequence, although it may signify a lack of attention to detail that is of great importance in this case. What is of consequence for present purposes is the attempt made by Professor Tatoulis to maintain his position in the face of an overwhelming inference that it was incorrect. This has some implications for the assessment of his credibility. It suggests that Professor Tatoulis started from an entrenched position and wished to maintain that position even when it was shown to be untenable. 175 Although it is difficult to pinpoint any other areas in which Professor Tatoulis was less than objective in his approach, these matters must be borne in mind in the determination of whether his evidence should be accepted where it is in conflict with that of other medical experts. 176 I should note, however, that, on the principal issues, I have at all times attempted to reach a determination on the basis of objective facts and circumstances, and the reasoning processes of the various experts, in preference to an assessment of the credibility of obviously eminent and highly qualified and credible medical practitioners. 177 Professor George Skowronski is a senior staff specialist and Director of the Intensive Care Unit at the St George and St George Private Hospitals in Sydney and Associate Professor in the Department of Anaesthetics, Emergency Medicine and Intensive Care at the University of NSW Faculty of Medicine. Professor Skowronski provided two reports at the request of the solicitors acting on behalf of the doctor defendants. The first is dated 18 September 2001 and the second 30 July 2002. Professor Skowronski reviewed the history of Mr Sherry's admission to the ICU. He accepted that, in hindsight, the ICU Chart could be interpreted as showing signs of "extra cellular volume depletion" in the hours before Mr Sherry's death but expressed himself to be unconvinced that there necessarily was such bleeding prior to his rapid deterioration from about 10.15 pm. Professor Skowronski identified the cause of death in the following way: "There can be little doubt that death was precipitated by a substantial reactionary haemorrhage, probably from an intercostal vessel in the thoracotomy wound."

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No criticism was made of Professor Skowronski's expertise, or his credibility. He was accepted as an objective and impartial witness. The evidence extracted above sits uneasily, in my opinion, with his acknowledgment that a retrospective examination of the records could be seen to show a degree of hypovolaemia. 180 Dr Wilson was asked what he would have expected to see, at about 6.00 pm, on the recordings, had Mr Sherry been haemorrhaging at the rate of about 250 ml per hour from 1.30 pm until 6.00 pm. 181 He said that that would have involved four and a half hours of bleeding at about 250 ml per hour, with a total blood loss of between 1,000 ml and 1,200 ml. He said that this would have been a significant episode of blood loss and he would have expected to see that the lung was squashed and Mr Sherry would have had a rise in respiratory rate and a fall in arterial oxygen saturation; tachycardia; and probably a fall in blood pressure. It would not have been necessary to treat him for hypotension (as he was treated between 4.00 am and 5.00 am with GTN). 182 Dr Wilson thought that the 10.10 pm onset of pain was a new event signifying that something different had happened. He thought that evidence of significant bleeding prior to 10.00 pm was absent. When asked what might have caused the increased chest pain he said that it would have had to have been something that irritated the parietal pleura and he presumed that spreading haematoma or increased tension on the parietal pleura or even rupture through to the pleural cavity had occurred. This was the nearest to support for the Hillman theory that emerged in the evidence. * * * 183 For reasons to which I have already alluded (most importantly, the level of any real support from any other experts) I have no difficulty in rejecting the Hillman theory of the haemorrhage. That leaves me faced with choosing between two theories, each propounded by eminent and competent experts. There is objective evidence to support each, and objective evidence which contra-indicates each. 184 It seems to me, perhaps at the risk of oversimplifying, the competing positions can be encapsulated as follows:

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(ii) the Marshman theory places weight on the location of the blood; it also places weight on the readings, but gives them a different interpretation. 185 One matter that remains mysterious is the three hour episode of oliguria between 5.00 pm and 8.00 pm, or more accurately, the apparent recovery of better than base-line acceptable urine output. Had the recordings stopped at 8.00 pm, or had the oligura continued, that would have given powerful and persuasive support to the Glenville/Stow theory. But what cannot be escaped is the recording of a recovery, after 8.00 pm, of a more than acceptable urine output. The recordings of urine output after 8.00 pm (assuming them to be accurate recordings, a fact which is not accepted on behalf of the plaintiff) seriously undermine the Glenville/Stow theory. They do not, however, afford great support to the Marshman/Tatoulis theories - even on their hypotheses, bleeding had well and truly commenced by 8.00 pm, and could have been expected to have resulted in decreased urine output by the time better than normal output had resumed. One answer put by the plaintiff was that no reliance should be placed upon the accuracy of those recordings. There were other inaccuracies in the ICU Chart; and the nurses who made the recordings were not called. 186 Assessment of the competing theories is difficult for a non medically trained lawyer. One tends to look for rational support for the various theories. Unfortunately, even this exercise leads to the conclusion that there is persuasive support for each theory. In favour of Dr Marshman's theory that the pleura ruptured after a relatively short period of bleeding (or Professor Tatoulis' theory along the same lines but after a more protracted period of bleeding) is that it offers an explanation for two things: the sudden onset of chest pain at 10.10 pm; and the absence of convincing and consistent signs of blood loss prior to that time. The theory does not, however, explain the three hours of low urine output, its subsequent apparent recovery, the low CVP, or the tachycardia. Nor does it provide any explanation for the cause of the bleeding. 187 In favour of the Glenville/Stow theory, that bleeding commenced at 1.30 pm and continued steadily until cardiac arrest, is that it offers an explanation of the cause of the bleeding: a cut vessel bleeding but which had been staunched until the drain removal. This theory, however, does not explain why the readings on the ICU Chart give somewhat equivocal indications of blood loss (although Dr Stow explained this by suggesting that Mr Sherry had very superior powers of compensation). 188 Factors supporting the Glenville/Stow theory are:

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(i) some improvement, from 6.00 pm, in the tachycardia; (ii) the quite heavy urine output between 2.00 pm and 3.00 pm; (iii) the apparent recovery from oliguria after 8.00 pm; (iv) that the 2.00 pm tachycardia came too early to have been triggered by a 1.30 pm commencement of bleeding; (v) the relatively moderate degree of the tachycardia; (vi) the theory provides an explanation for the chest pain onset at 10.10 pm; (vii) the absence of any history to the knowledge of Professor Tatoulis or Dr Marshman of occurrences similar to those hypothesized by Mr Glenville and Dr Stow. 190 Professor Skowronski's support for the theory is undermined by his acknowledgment in his reports that a detailed analysis of the records does reveal, or at least raise suspicion, of developing hypovolaemia. 191 It has not been easy to reach a conclusion on this, critical, issue. Ultimately, I have concluded that the Marshman/Tatoulis/Skowronski theory is (however marginally) to be preferred, but with bleeding commencing, as suggested by Professor Tatoulis, at about 1.30 pm. This is because, on balance, the signs do not support a consistent, steady blood loss from 1.30 pm. They do support a small but accelerating blood loss from that time. 192 In accepting this much of the Tatoulis theory, it is not necessary also to accept a sudden rupture of the pleura, or that, if there were sudden rupture, that it occurred at about 10.10 pm, (although that hypothesis has the attraction of explaining the chest pain at that time). Commencement of bleeding from 1.30 pm, but at a slower rate than contended for by Mr Glenville and Dr Stow, is consistent with Dr Stow's view that the chest pain was an extension of what had been developing over the afternoon. The reduced air entry to the left chest, recorded at 7.00 pm, suggests that the blood loss by that time was greater than suggested by the Marshman or Tatoulis theories. So, also, is the evidence of tachycardia between 2.00 pm and 4.00 pm. It is not necessary to decide if the chest pain was caused by rupture of the pleura, or by the accumulation of blood. * * * 193 The conclusion that bleeding commenced at about 1.30 pm is far from determinative of the remaining issues, although it does help to clarify some of them. The next questions are what the various readings, and the signs denoted; and whether, and if so when, SAH and the medical professionals, exercising due care, and diligence ought to have observed the signs of, and treated Mr Sherry for, hypovolaemia. That requires more detailed analysis of what the signs actually were, and what the recorded observations properly signified, or ought to have signified, to the nurses and doctors. 194 In respect of what the signs actually denoted two camps emerged. On the one hand, the plaintiff's experts were firmly of the opinion that the signs, properly interpreted (and even though subtle), indicated progressive hypovolaemia. On the other hand, the defendants' experts were generally of the view that the signs, right up until Mr Sherry's arrest, indicated that he was haemodynamically stable, and were not such as to cause any further investigation or inquiry, let alone alarm. 195 The term "haemodynamically stable", used throughout the proceedings by all medically trained witnesses, has caused me some concern. I am not sure that it was always used to mean the same thing. As Dr Wilson defined it, it had two parts: stability (i.e. a lack of significant change in the parameters); and normality (i.e. recordings within an expected and acceptable range). There was general agreement that examination of the ICU Chart shows that, in most respects, Mr Sherry's parameters during the early afternoon were stable, in the sense of showing little significant change. The major area of dispute really concerned whether they could be said to be normal, that is, within normal and acceptable expectations. Some differences of opinion also emerged about whether, as the afternoon wore on, the signs really did justify a description of stability. 196 It is fair, I think, to note that the ICU Chart and the Progress Notes show that the signs exhibited by Mr Sherry from 1.30 pm were not a conventional or textbook set of signs of hypovolaemia. Indeed, even before 1.30 pm, there had been some readings (e.g. oliguria, decreasing CVP, and increasing pulse rate, although not to the level of tachycardia) during the morning of 14 August, consistent with hypovolaemia. During that morning some of the very signs relied upon, on behalf of the plaintiff, during the afternoon, as signifying bleeding were in evidence. But it was not suggested by anybody that the fatal haemorrhage commenced earlier than 1.30 pm. 197 The experts placed very different interpretations upon the signs recorded and the information contained on the ICU Chart and the Progress Notes. In the first instance I will draw from their reports. This is not an altogether uncomplicated exercise, because they all approached their tasks in an uncompartmentalised way. However, I think what follows is an accurate account of what each made of essentially the same information. 198 I will begin again with Mr Glenville's opinions. In his first and second reports, he proceeded on the erroneous assumption that the removal of the chest drains occurred at about 9.30 am. By the time of his third report he had had access to the ICU Chart and was aware that this had not happened until about 1.30 pm. This does not materially affect the opinions he expressed in the two earlier reports, although some timing adjustments have been made. 199 Mr Glenville thought that Mr Sherry was well until 2.00 pm on 14 August but thereafter gradually became unwell and was unstable after 7.00 pm. He thought that the signs were subtle until around 8.00 pm (Exhibit S1, p 7). 200 He thought that the gradual change in heart rate over an eight hour period up to the time of his arrest was "clearly abnormal" and could have been seen to have been caused by increasing pain, respiratory distress or hypovolaemia (inter alia). He put a great deal of weight upon the physiotherapist's observation of reduced air entry to the left chest at 7.00 pm, believing that this alone made x-ray mandatory. (In writing this, Mr Glenville added that it was now over eight hours since drain removal. This was based upon his erroneous assumption that drain removal had taken place at about 9.30 am. I do not think that misconception affects, or would have affected, his view about the necessity for x-ray at or shortly after 7.00 pm.) 201 In his third report Mr Glenville noted that the pulse rate remained steady at 70 - 75 bpm until 2.00 pm and that, thereafter, it steadily increased so that by 4.00 pm it was just under 100 bpm, later peaking at around 110 bpm and never dropping below 100 bpm. This constitutes tachycardia. He considered this to be "a dramatic increase in pulse rate by any standard" - and therefore not a sign of stability. 202 Mr Glenville recognised that many patients are tachycardic following cardiac procedures. However, he attributed significance to Mr Sherry's post 4.00 pm tachycardia because, prior to that time, he had had a normal pulse rate and the increase coincided with the removal of the chest drain. Mr Glenville recognised that the pulse rate of 90 bpm would not of itself have been of great significance, but thought that the subsequent increases were. Had Mr Sherry been tachycardic from the time of the surgery, the tachycardia might properly have been seen as of little moment: it was its late development that gave cause for concern. 203 Mr Glenville also attributed significance to the increased pain at 10.10 pm which was also accompanied by tachycardia (although I do not read the ICU Chart as showing an increase in tachycardia; it appears to have remained at the same level). Mr Glenville noted the further increase in pain at 10.30 and thought this also to be significant. 204 In his first report, in answer to a specific question about what intervention was indicated, at what stage and by whom (Exhibit S1, p 6), Mr Glenville began by saying that this was difficult to answer except in general terms. He went on to describe the failure further to x-ray Mr Sherry, the failure to take blood gas estimations after 13 August, and the failure to make a formal clinical evaluation and record it in the notes as "all major failures". 205 Notwithstanding the increase in pulse rate up to 4.00 pm, Mr Glenville considered it: "... perfectly reasonable that at that stage no alarm bells were ringing." (Exhibit S3, p 3)

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However, he considered that, by 7.00 pm, the physiotherapist had clearly documented the clinical situation but that no action was taken. He found it difficult to explain why, on his visit at 9.30 pm, Dr Marshman failed to observe the trends. 206 In his first report Mr Glenville said that a chest x-ray is normally taken "a few hours after" drain removal. A small delay allows for complications to develop and to be observed on x-ray. Mr Glenville criticised as "a fatal mistake" the failure to x-ray Mr Sherry at least when the physiotherapist noted the decreased air entry at 7.00 pm. 207 In his second report he added that a chest x-ray should have been taken on removal of the drains. He adverted to a "universal practice" of doing so, although the timing varies. His own practice is to x-ray within one hour of drain removal: others vary from an hour to three or four hours. So essential did he see x-ray following drain removal to be that he suggested that when, for some reason x-rays are not able to be taken, drain removal should be deferred until facilities are available. Mr Glenville appears to hold this as a general view, not specifically related to Mr Sherry's circumstances, but merely on the basis that drain removal itself would ordinarily require x-rays to be taken. 208 On his hypothesis that bleeding began at about 1.30 pm and continued at a fairly regular rate, Mr Glenville calculated that, by 6.00 pm, Mr Sherry had bled in excess of one litre of blood, by 7.00 pm between 1200 ml and 1500 ml, at 9.30 pm at least 1700 ml and up to two litres, and by 10.00 pm more than two litres (Exhibit S3, p 3). He made further reference to the physiotherapist's 7.00 pm note of pain, reduced air entry on the left, dry cough, and much reduced COACH value. All of these, he said, were: "... not just consistent with but shouting out that there was already a serious problem." (Exhibit S3 p 3) 209 Mr Glenville noted that at 10.10 pm Mr Sherry had more pain and an increase in the administration of morphine. 210 In oral evidence Mr Glenville said that the increase in pulse rate by 3.00 pm was "a clear representation" that Mr Sherry was becoming hypovolaemic and compensating by tachycardia (t 908). 211 He said that by 6.00 pm the entries on the ICU Chart and the Progress Notes contained indications of hypovolaemia. These were tachycardia and oliguria. He did not, however, suggest that at this stage either SAH nurses or the doctors should have recognised massive bleeding. What he said was that the signs should have given rise to "an index of suspicion" (t 190). The fact of the bleeding the night before should have raised that index of suspicion. He thought that this should have given rise to some basic investigation by a doctor exercising ordinary skill and care. One such investigation was a technique called "percussion". This is a simple manual test performed in a moment and requiring no equipment. It provides aural information about what is happening inside a patient's chest. Mr Glenville also thought that it would be appropriate to have auscultated Mr Sherry - that is, to have listened to his chest with the aid of a stethoscope. 212 Mr Glenville thought that, had Mr Sherry been percussed at 6.00 pm, the doctor performing the test would have recognised that there was a significant quantity of blood in Mr Sherry's chest. This, of course, depends upon the correctness of his earlier hypothesis as to the rate of bleeding. In order to cover a contrary finding as to the time or commencement or rate of bleeding, Mr Glenville was asked what a doctor percussing Mr Sherry's chest would have heard had there been something like 750 ml of blood in the chest. In answer to this he said that only a skilled doctor would recognise the presence of that amount of fluid. 213 Mr Glenville also identified a number of other investigations which were available to be performed at 6.00 pm if some disturbing symptoms had been recognised and had the appropriate investigations been undertaken. These included "some very basic routine blood tests"; a full blood count, which would include an estimate of the haemoglobin present in the blood; urea and electrolyte tests, which give an indirect indication of fluid balance; a chest x-ray; and an electro-cardiogram to identify a cardiac or respiratory cause for the distress. Mr Glenville thought that a medical practitioner exercising ordinary skill and care would, observing the signs recorded as at 6.00 pm, have carried out those tests (t 915). 214 Mr Glenville thought it would have been "nice" if, recognising that a haemothorax was present, a medical practitioner had notified the surgeon. 215 Even on the assumption that at that time Mr Sherry's chest contained the lower quantity (750 ml) of blood, he thought that a medical practitioner exercising ordinary skill and care would have been concerned that Mr Sherry was going to become hypovolaemic. This was because of the low urine output between 5.00 and 6.00 pm. The appropriate treatment at that time was increased fluid replacement administered intravenously. 216 Mr Glenville himself made the point that the purpose of the ICU Chart is to catalogue trends in a patient's condition. No single reading is ordinarily taken as definitive of any particular condition or diagnosis. This was one of the few areas of unanimity among the experts and was central to the challenge made to Mr Glenville in cross-examination on this issue, to which I will return. It is now more convenient to deal with the balance of his evidence-in-chief. 217 Mr Glenville was asked a similar series of questions about the signs recording Mr Sherry's condition at 8.00 pm. He said that, by that time, it should have been apparent that "something's going wrong in the left lung". This was because, not only had the signs been recognisable as at 6.00 pm, but at 7.00 pm the physiotherapist had recorded a reduction in COACH volume and a reduction in air entry, on both sides of the chest, but particularly on the left. As well as that, Mr Sherry was suffering considerable pain. 218 At this time, he thought, an x-ray should have been performed. Had that been done (again on his assumption of the rate of bleeding) a significant effusion would have been disclosed, in contrast to the x-ray taken earlier in the morning which showed no such effusion. This, at the least, would have increased the level of vigilance. Combined with the low CVP, the tachycardia and oliguria should have raised suspicion that Mr Sherry was bleeding internally (t 942). At this time, Mr Glenville thought that a full blood count should have been performed as well. That, he said, is an exceedingly simple task, taking about a minute. If done, it would have shown that the haemoglobin had dropped and this would have alerted a medical practitioner to query whether significant bleeding was occurring. At this time a medical practitioner (presumably a reference to Dr Walsh) should have notified the surgeon who had performed the operation. The hospital staff should have returned to quarter hourly recordings of observations. A chest drain would have been inserted. 219 In Mr Glenville's opinion, if Mr Sherry had been treated in this way, he would have survived. 220 Mr Glenville was then asked about circumstances as they existed at 9.30 pm, the time at which Dr Marshman visited Mr Sherry in the ICU. 221 By this time, it was suggested in the first question, the only significant change was the recorded increase in urine output to 50 ml between 8.00 pm and 9.00 pm. Mr Glenville thought that the surgeon would speak to a nurse to obtain an opinion as to Mr Sherry's progress; and then speak to Mr Sherry himself. (Both of these Dr Marshman did.) Mr Glenville deduced that Mr Sherry would have told the doctor that he was thirsty (this being apparent from the Progress Notes). Dr Marshman would have examined Mr Sherry and, had he done so, he would have found an easily demonstrable left pleural effusion. The examinations Mr Glenville had in mind included auscultation and percussion. He thought that a surgeon examining Mr Sherry at 9.30 pm would have looked at the Progress Notes, including the physiotherapist's 7.00 pm note, and would have realised that the physiotherapist was unhappy with Mr Sherry's management. It would have been necessary, in order to percuss Mr Sherry's chest, to have him sitting up and this would have caused him to become light headed and to feel extremely unwell. He may even have fainted. These signs would have alerted a surgeon to the fact that Mr Sherry was "dramatically empty of fluid". The appropriate treatment at that time was fluid replacement followed by an investigation as to the cause of the blood loss. By this time he thought it was "abundantly clear" that Mr Sherry had been bleeding. 222 Mr Glenville believed that a failure to review the Progress Notes at 9.30 pm would have been inconsistent with the administration of treatment in the exercise of ordinary skill and care; and, similarly, that a failure to review the ICU Chart would have been inconsistent with the exercise of ordinary skill and care. I am satisfied that Dr Marshman did in fact review the ICU Chart and the Progress Notes. 223 Mr Glenville thought that if Mr Sherry had been treated appropriately at 9.30 pm he would have survived. 224 Mr Glenville was then asked about the events from 10.15 pm when Dr Walsh was called. 225 It was Mr Glenville's view that, on arrival in the ICU after having been called by the nurse, Dr Walsh would be expected to discuss with the nurse the reason for the call, to discuss his condition with Mr Sherry, and to make his own observations. In doing so, he would review the Progress Notes and the ICU Chart. At that time, Mr Glenville said: "... the hypovolaemia ... is crying out ..." (t 952) 226 On the basis of the information contained in the ICU Chart and in the Progress Notes, and what the nurse could have been expected to convey to Dr Walsh, together with his visual observation of Mr Sherry, Dr Walsh should have come to a diagnosis that Mr Sherry "had a left lung full of blood". 227 Mr Glenville accepted that it was reasonable to entertain a provisional diagnosis of pneumothorax but thought that this could readily have been excluded by percussion or auscultation. Mr Glenville thought that: "the data on the chart is crying out to you at that stage ..." (t 953)

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and that it would not be necessary to recognise that the patient was bleeding; it would be sufficient to recognise that he was hypovolaemic. Fluid resuscitation was then essential. 228 Even on a provisional diagnosis of pneumothorax, Mr Glenville believed that percussion should have been performed, and a chest drain inserted. Percussion would have identified the problem as a haemothorax rather than a pneumothorax. Again on the basis that the provisional diagnosis was of pneumothorax, Mr Glenville thought that it was not advisable for Dr Walsh to have left Mr Sherry while he awaited the results of the x-ray. 229 Mr Glenville thought that, had Mr Sherry been appropriately treated at 10.00 pm, he would have survived. 230 Mr Glenville was then asked about the events of 10.40 pm, when Dr Walsh reviewed the x-ray and recognised that he was dealing with a haemothorax and not a pneumothorax. Mr Glenville thought that the appropriate treatment then was fluid resuscitation followed by blood tests and ensuring that adequate replacement blood was available. After the administration of sufficient fluid, Mr Glenville expected, the tachycardia would have reduced and Mr Sherry would have started to feel better. Indeed, Mr Glenville thought that if Mr Sherry had been treated appropriately even up to 11.00 pm, he would have survived. 231 I have already mentioned that Mr Glenville, like other experts, made it clear that the most significant information derived from an ICU Chart concerns trends in a patient's condition. That, no doubt, is the reason for the graph and chart or table formation. This was used by senior counsel for SAH, and senior counsel for the doctor defendants, to challenge Mr Glenville's approach. He agreed that, although the CVP was low, it was stable from 8.00 am on 14 August. He agreed that, again from that time, the blood pressure was relatively stable apart from during a period of drug administration. He agreed that the respiration rate was relatively stable. He agreed that, to the extent that tachycardia was seen, it was within the parameters commonly seen after cardiac surgery. 232 All of this was used to counter the proposition that the CVP and the tachycardia were warning lights that should have alerted the hospital and medical staff to the possibility of hypovolaemia. 233 In cross-examining Mr Glenville senior counsel who appeared for the doctor defendants set out to establish that the signs of hypovolaemia identified by him were not as unequivocal as he had suggested. For example, Mr Glenville placed considerable store on the relatively high pulse rate which, he said, constituted "technical tachycardia". Mr Glenville agreed that a pulse rate may be elevated by a number of circumstances other than hypovolaemia; for example, exertion, fever, preceding surgery, the use of Ventolin, or pericarditis, and the use of beta blockers. The existence of tachycardia, alone, would not, it was suggested, direct a medical practitioner to consider hypovolaemia as distinct from any of these other circumstances as a cause of the tachycardia. Similarly, Mr Glenville agreed that the CVP might be affected by the administration of beta blockers; and that from about 6.00 am on the morning of 14 August Mr Sherry's respiration rate was constant. 234 The position in relation to urine output was different. Mr Glenville did accept that variations from hour to hour would not be unexpected and would not be alarming. He agreed with the proposition that a urine reading of 100 in one hour followed by 10 in the next would not be unexpected. When pressed further, however, he said that the technical definition of oliguria would be fulfilled and that greater vigilance in the next hour would be warranted. 235 Mr Glenville was then directed to the urine output readings between 2.00 pm and 10.00 pm. Between 2.00 pm and 5.00 pm the readings were comfortably above the acceptable figure of 30 ml; this was followed by the three hours of low readings, and these were followed by recorded recovery, over two hours, of higher readings. He would not accept the proposition that this output was "within reasonable parameters". 236 It may be that this is the nub, or part of the nub, of the diversion between the plaintiff's medical experts and those of the defendants. Mr Glenville would not agree with the proposition that interpretation of the observations is a matter of "quite sophisticated judgement"; indeed, he strongly disagreed with that. This was because the parameters were, he said, "so abnormal". 237 Mr Glenville could not be persuaded to accept that there was nothing remarkable about the variations in Mr Sherry's urine output. He accepted that some variations were to be expected and were acceptable, but would not accept that the two hours of unacceptably low urine output between 8.00 am and 10.00 am were "entirely unremarkable"; he said that was "certainly remarkable", and something that should alert a nurse to investigate whether something was wrong. He did accept that investigation might have revealed a simple explanation such as a kink in the catheter, and that a single low reading would not give rise to alarm. 238 It is the three hours of unacceptably low urine output between 5.00 pm and 8.00 pm that gave rise to the greatest area of dispute in respect of what it signalled therefore, or should have signalled, to professionals. Mr Glenville disagreed with the proposition that, those hours having been preceded by two hours, between 2.00 pm and 4.00 pm, of quite high urine output, that the three hours of oliguria were "unremarkable". 239 Mr Glenville suggested that the following two hours, between 8.00 pm and 10.00 pm, of a total of 100 ml output might have been explained by the administration of oral fluid or an infusion of potassium which had taken place. (With this Dr Wilson disagreed. He did not think it was possible to absorb from the stomach and make a material difference to the intravascular volume of such a small amount of fluid.) 240 Mr Glenville agreed that shortness of breath is one of the early signs of haemothorax and that this was never recorded. 241 Mr Glenville relied heavily upon the physiotherapist's 7.00 pm record of decreased air entry in the left lung as one of the signs that should have alerted the medical practitioners to Mr Sherry's condition. This gave rise to another issue of interpretation. As I understand Mr Glenville's evidence (t 1152), he accepted that decreased air entry into the left lung (caused by collapse of the left lung) is a recognised possible consequence of cardiac surgery. This was relied upon by cross-examining counsel to suggest that the physiotherapist's note at 7.00 pm was not such as to have rung warning bells in the minds of the various observers of the records. However, as Mr Glenville pointed out, while left lung collapse might be a consequence of cardiac surgery in some patients, it was not, in this case, on the day following the surgery, an apparent consequence. In Mr Sherry's case it was not clinically observed before 7.00 pm on 14 August - that is, more than 24 hours after the surgery. In fact, there had been radiological evidence of left lung collapse but that had not become clinically observable until the physiotherapist's note at 7.00 pm. 242 Mr Glenville disagreed with the nursing note, entered at about 10.10 pm, that Mr Sherry was haemodynamically stable; he said this was a wrong interpretation of the data (t 1169). This was a controversial view. It was also directly contrary to what he had written in his first report. (Exhibit S1, p 5) 243 Senior counsel cross-examining Mr Glenville then focused upon the events from about 10.15 pm, when Dr Walsh was called. He agreed that, except for the tachycardia, Mr Sherry's signs were at that time within normal limits and stable. He nevertheless thought that there were at that time obvious signs of hypovolaemia, these being pallor, tachycardia, the reduced urine output between 5.00 and 8.00 pm, and an untoward response to the withdrawal of GTN (Tridol) (this was the absence of any rebound in blood pressure after the withdrawal of the drug (t 1179)). He said none of these suggested a stable patient. 244 Mr Glenville rejected the proposition that, on the signs exhibited by Mr Sherry at about 10.20 pm, clinical judgement would reasonably include waiting for the outcome of the chest x-ray before calling the surgeon. When asked to explain this he replied: "You have a patient who has had important post-operative bleeding the night before. He's already established himself to be in a position where you can expect possible further complications, or at least be alert to those complications. After the bleeding has been stopped, the patient resumes a relatively normal course, with the exception, as you have noted, of pain.

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The failure to commence intravenous fluids immediately after the diagnosis of haemothorax at [10.40 pm or 10.45 pm] on 14th August 1997." 248 Dr Stow thought that these were compounded by poor standards of documentation by medical and nursing staff, excessive demands placed upon Dr Walsh by SAH, and failure to provide a dedicated CMO cover to the ICU. 249 Dr Stow made a number of observations. At paragraph 1.38 of his report, he expressed the view that the fact that Mr Sherry's tachycardia developed soon after the chest drain removal should, at the very least, have raised awareness that the two might have been connected. A nurse or doctor exercising ordinary skill and competence would, at the very least, have sought other signs of ongoing bleeding. 250 Dr Stow also criticised the failure to take blood pressure readings after 10.00 pm, and particularly when Mr Sherry complained of sudden pleuritic chest pain. He thought that, at 3.00 pm, Mr Sherry showed clinical signs that may have been caused by low circulating blood volume. These were low CVP and an increase in heart rate. 251 He thought that, at 5.00 pm, when urine output again fell, and thereafter at 6.00 pm and 7.00 pm, an intensive care nurse using ordinary skill and competence would have informed the medical practitioner of these findings at 5.00 pm, 6.00 pm and definitely at 7.00 pm. 252 By 7.00 pm, Dr Stow thought, there were three signs of hypovolaemia. These were tachycardia, low CVP, and three consecutive hours of oliguria. He expressed the further view that an intensive care doctor exercising ordinary skill and competence who had seen Mr Sherry would have prescribed additional intravenous fluids at 7.00 pm. He also thought that the finding of reduced air entry at the left-hand side of the chest at 7.00 pm was significant. This was a new finding, not previously noted or recorded. (This was very much in accord with the view expressed by Mr Glenville.) Previous entries had recorded decreased air entry on the right side. He thought that, by 7.00 pm, an x-ray was called for. He thought that auscultation and percussion should have been used by or at 7.00 pm. 253 Dr Stow also thought that, by 10.15 pm, Mr Sherry had shown signs and symptoms of moderate to severe reduction in circulating blood volume and that after 10.00 pm he was beginning to become hypotensive. 254 In examination-in-chief Dr Stow was asked to assess the records progressively, starting at 6.00 pm. He thought that at 6.00 pm intravenous fluid should have been administered. There appear to have been two different sets of factors which led him to this view. One was the three signs of hypovolaemia: that is, low CVP, tachycardia and oliguria at that time. The other was that Mr Sherry was having difficulty with pain relief and there was an observed reduction in his ability to breathe deeply. Dr Stow thought that, at the 6.00 pm to 7.00 pm handover between Dr Wilson and Dr Walsh, Dr Wilson ought to have told Dr Walsh that he was concerned about Mr Sherry; that he had ongoing pain; that the physiotherapist had found that his COACH volume had decreased; that he "may be potentially brewing problems within his chest"; that he was concerned about his urine output; that he had some tachycardia, which may have been related to a number of factors. 255 In Dr Stow's opinion, all of these signs required observation and steps taken to exclude a cause. He also thought that an intensivist would have noted that the CVP was low. 256 He noted that Mr Sherry was not following the Clinical Path in that he was not ambulatory as had been anticipated by that time. 257 Dr Stow was then asked about the situation as at 8.00 pm. In addition to the factors he had already noted, he now placed considerable weight upon the physiotherapist's 7.00 pm note of reduced air entry on the left side of the chest. He considered that this should have been reported to a doctor by either a nurse or the physiotherapist. Like Mr Glenville, Dr Stow also relied upon the note made by Nurse Phibbs four hours earlier, that air entry to the right base of the lungs was decreased but noted there was no mention of reduced air entry at the left base. Taken together, the two notes indicated a deterioration in Mr Sherry's condition between 3.00 pm and 7.00 pm. 258 This change indicated that Mr Sherry may, by 8.00 pm, have had significant pulmonary collapse; it was evidence of haemodynamic instability and significant hypovolaemia. Taken together with the other signs - by then, three hours of oliguria, a consistently raised heart rate, and low CVP, this ought to have alerted a medical practitioner to the need to make further investigations. These were an arterial blood gas test and a chest x-ray. In Dr Stow's opinion, had an x-ray been taken at about 8.00 pm, it would have shown blood in the lung. By 8.00 pm a medical practitioner exercising ordinary care and skill ought to have included hypovolaemia in a differential diagnosis. Indeed, (in an echo of Mr Glenville), Dr Stow thought that by 8.00 pm a differential diagnosis of hypovolaemia was "almost beginning to scream at you" (t 1345). At that point treatment administered should have included an intercostal drain, the administration of fluids, and constant monitoring. 259 In Dr Stow's opinion, if that had been done, Dr Walsh ought to have contacted Dr Wilson to advise that a haemothorax had been disclosed. 260 He thought that a nurse ought at this time to have informed a doctor of Mr Sherry's condition and that two routine and simple tests ought to have been performed. These were auscultation and percussion (t 1349). If those tests had been performed, they would have revealed air entry at the right lung base, but no air entry at the left lung base and a dull, non-resonant tone to the left base reflecting the presence of fluid in the chest. Again, Dr Stow thought that blood gas tests and a chest x-ray should have been ordered, and an intercostal drain inserted. By 9.30 pm he thought the chest x-ray requirement was urgent. Had these measures been taken at 9.30 pm Mr Sherry would have survived. 261 By 9.30 pm, when Dr Marshman saw Mr Sherry, Dr Stow said that all relevant parameters had remained the same except for the recovery in urine output. He thought that a superficial reading of the signs might have been reassuring because of the urine output recovery, but that a more detailed examination would have disclosed that Mr Sherry had consumed a significant volume of fluid and that this ought to have been seen as the reason for the urine output recovery, rather than as a sign that the explanation for the three hours of oliguria was not hypovolaemia but something else. I have already noted the views of Mr Glenville and Dr Wilson on this theory. 262 Dr Stow thought that, by 9.30 pm, Mr Sherry was a patient at risk of ongoing pulmonary collapse with significant hypovolaemia. This should have been observable to a doctor who saw the ICU Chart and the Progress Notes. 263 The x-ray that was ultimately taken at about 10.30 pm disclosed approximately two litres of blood in the chest. By 10.15 pm, Dr Stow thought, there would have been a considerable amount of blood in the chest and this would have been revealed on x-ray. 264 Dr Stow was then asked about Dr Walsh's examination of Mr Sherry at about 10.15 pm, brought about by the nurse's noting the sudden increase in left chest pain. This Dr Stow saw as another sign of hypovolaemia. Added to that was Dr Walsh's observation that Mr Sherry was pale and sweaty. These factors, according to Dr Stow, should have added to the suspicion that there was significant blood loss. He again relied on the decreased air entry on the left side of the chest, which, while misdiagnosed as a pneumothorax, still demanded appropriate examination of the chest. The only way to diagnose a tension pneumothorax appropriately is by percussion, and auscultation. Failure to percuss the chest at this time, in Dr Stow's opinion, represented a failure on Dr Walsh's part to exercise ordinary skill and care. Percussion would have excluded the provisional diagnosis of pneumothorax. The signs by this time were more consistent with haemothorax than pneumothorax. At this point Dr Walsh ought to have contacted Dr Wilson. Dr Stow would also have expected that the sudden onset of pain, in a patient 36 hours post-coronary artery bypass surgery, would have mandated the performance of an electro-cardiogram to exclude a diagnosis of graft ischeamia. There was what Dr Stow described as "overwhelming evidence" to support the theory that Mr Sherry was hypovolaemic. Intravenous fluids ought to have been administered. 265 The main challenge made to Dr Stow (along the same lines as that made to Mr Glenville) concerned the recovery of urine output. It was suggested to him that, once hypovolaemia was established, urine output would be expected to remain depressed until correction of the hypovolaemia. Dr Stow did not entirely accept this proposition. He thought that the alternative of adaptation of the patient's physiological responses, by vaso-constriction, or an increase in his heart rate, might result in apparent recovery of urine output. Thus, as Dr Stow seems to have perceived it, Mr Sherry's apparent recovery of urine output might well have been deceptive, and should not have been regarded as conclusive against a diagnosis of hypovolaemia. He did, however, appear to accept the proposition that once serious hypovolaemia was established, a resumption in urine production would not be expected in the absence of correction of the hypovolaemia. He nevertheless thought that a patient who had a prolonged period of adaptation to hypovolaemia may still have subtle variations to urine output and be able to compensate. Even at 9.30 pm, Dr Stow thought, the recovery of urine output should not have lulled Dr Walsh into a false sense of security about the significance of the 5.00 pm to 8.00 pm episode of oliguria. 266 Of significance to Dr Stow was Mr Sherry's continuing pain during the day on 14 August and what he described as "a persistent tachycardia" from 3.00 pm; periods of low CVP; and periods of low urine output. Also of significance, at 7.00 pm was the finding of reduced air entry to the left side of the chest; and later, at 10.10 pm, the acute left-sided pain. 267 To Dr Stow it was the variations in the readings that were important. While Mr Sherry's heart rate was at all times in the low range of tachycardia, that had to be seen in the context of his pre-surgery resting heart rate and the relatively low heart rate prior to 3.00 pm. On that basis the increase in the rate was more notable. Similarly, while the CVP reading was at the low end of normal, it also indicated a change in condition. To Dr Stow the changes were more important than the absolute values recorded. 268 Accordingly, to Dr Stow, by 3.00 pm Mr Sherry was exhibiting signs that may have indicated hypovolaemia; these were a low (and dropping) CVP and a rising heart rate. 269 There were also clinical observations: by Dr Walsh, at 10.15 pm, that Mr Sherry looked pale and sweaty; and at 10.30 pm when he experienced the sudden onset of left pleuritic chest pain; at 10.50 pm when Nurse Ford recorded that Mr Sherry complained of nausea; and at 11.00 pm when Mr Sherry himself complained of feeling light-headed and dizzy. 270 Dr Stow also referred to the family's observations of Mr Sherry's colour, that he appeared tired and that he was thirsty. 271 Professor Tatoulis took a different view. He thought (Exhibit 1D2, p 11) that a rapid heart rate was not unusual after cardiac surgery, and could be associated with an inflammatory response, anxiety, the use of medication such as Ventolin (which Mr Sherry had had), and the physical effort required with physiotherapy, moving, and pain. He, accordingly, did not consider Mr Sherry's increased heart rate necessarily to be indicative of hypovolaemia. However, Professor Tatoulis in part based this view upon what he asserted to have been Mr Sherry's temperature as "over thirty-eight degrees C" from 2.00 pm. I have dealt with this in the context of the attack made upon Professor Tatoulis' credibility. The fact is that Mr Sherry's temperature peaked at 38 degrees; it was not over 38 degrees from 2.00 pm onwards, as stated by Professor Tatoulis. 272 Further, although Professor Tatoulis noted the heart rate readings from 2.30 pm on 13 August, he did not comment upon the absence of tachycardia between 13 August and 3.00 pm on 14 August, or the heart rate escalation from that time. 273 He did not consider Mr Sherry's pain to be unusual or indicative of any cause for alarm. 274 Professor Tatoulis saw nothing alarming, either, in the blood pressure readings, saying that at no time could Mr Sherry have been considered to have been hypotensive. He regarded the CVP recordings as consistent and low throughout the entire post-operative course, in the low-normal range. 275 He saw no cause for alarm in the recording of urine output, but, as mentioned above, there was a notable omission in this regard, because Professor Tatoulis overlooked the three hours of unacceptably low urine output between 5.00 pm and 8.00 pm. That renders his opinion is this respect highly vulnerable. 276 Professor Tatoulis thought that at no point in time, could Mr Sherry have been considered to have been hypotensive. He also disagreed that the three hours of oliguria between 5.00 pm and 8.00 pm were of any real significance. His view was that patients do have variable urine outputs post-operatively and that, in the light of the recorded urine output recovery following 8.00 pm, not a great deal of significance would ordinarily be attached to those earlier readings. This was particularly so because of the earlier incidence of low urine output, from which Mr Sherry had, it appears, spontaneously, recovered. 277 In assessing Professor Tatoulis' evidence in this respect, the observations I made earlier are pertinent. It will be remembered that, in writing his report, Professor Tatoulis had overlooked the 5.00 pm to 8.00 pm period of oliguria. He had also shown himself to be inclined to defend the positions taken in his report, even when they were indefensible. I treat this evidence of Professor Tatoulis with caution. 278 Professor Tatoulis placed much less emphasis than Mr Glenville or Dr Stow on the ICU Chart recordings. He recognised that the CVP was low, but considered its relative constancy as more significant than its degree; he thought that the blood pressure was constant and, that, prior to 5.00 pm, the urine output was constant, and that these were not suggestive of hypovolaemia. He did recognise that the pulse rate was elevated, gradually rising from 8.00 am, but he said that that was not uncommon, and something experienced by many patients which may be caused by pain or the trauma of surgery or by increased temperature. The use of Ventolin, which has been administered at 2.00 pm, is also known to increase the heart rate. 279 The same factors influenced Professor Tatoulis to reach the same conclusion in respect of the afternoon and evening of 14 August. 280 He would have expected, if hypovolaemia existed in a sufficiently severe degree, that urine output would start falling. In this Professor Tatoulis was at one with all of the medical experts. However, his view of the interpretation to be placed upon the increase in urine output after 8.00 pm was very different from that of some of the other experts. In Professor Tatoulis' view, if sufficiently severe hypovolaemia existed, such as to cause a reduction in urine output, then he would expect the system to shut off completely and no recovery in urine output to be observed. Professor Tatoulis was not disconcerted by the morning episode of reduced urine output; he considered these to be acceptable fluctuations. He thought that even the three hours of oliguria during the later afternoon was not indicative of hypovolaemia, and that hypovolaemia was contra-indicated by the recorded rise in urine output after 9.00 pm. 281 Like Dr Wilson, he disagreed with Dr Stow's explanation that the apparent recovery in urine output could be attributed to Mr Sherry's consumption of 100 ml of water between 7.00 pm and 8.00 pm. 282 In contrast to Dr Stow, he did not consider that, at 7.00 pm, a chest x-ray was called for. He did not think the physiotherapist's 7.00 pm observation of reduced air entry on the left to be unusual so as to trigger a request for such an x-ray. He did not, however, comment on the contrast between this observation and earlier observations. 283 Nor did Professor Tatoulis agree with Dr Stow that, in the context of Mr Sherry's continuing complaints of pain, arterial blood gases should have been taken during the course of the evening. This was because the continuous monitoring of oxygen saturation showed that the values were steady and normal or near normal. 284 He did not agree that percussion was called for; he regarded percussion as "very subjective and difficult to interpret", causing difficulties even for very experienced clinicians. He preferred to depend upon more objective tests such as chest x-rays, CT scans and ultrasounds. 285 He did not accept that, at any time between midday and 10.00 pm on 14 August, the symptoms exhibited by Mr Sherry called for the administration of fluid. This was, again, because of the steadiness of the blood pressure, the CVP and the fact that urine output had decreased and recovered earlier in the morning. 286 He considered that the course adopted by Dr Walsh at 10.10 pm, to order a chest x-ray, was "appropriate". He placed little weight upon the observation that Mr Sherry was pale and clammy, saying this would be "a very common observation". Professor Tatoulis did not accept that, even by 10.45 pm, fluid administration was an urgent or emergency requirement. This, again, was because of the stability of the blood pressure and the CVP. What was then required of Dr Walsh was that he notify both Dr Wilson and Dr Marshman, consider inserting a chest drain, ask the nursing staff to prepare blood and other volume replacement, and give consideration to further surgery to drain the haemothorax and secure the bleeding point. 287 In cross-examination Professor Tatoulis substantially adhered to the position he had adopted in his examination-in-chief and in his cross-examination on behalf of the doctor defendants. He maintained that, while below normal urine output over "many hours" is unacceptable, that urine output below the normal range for "a number of hours" is very frequently seen before returning to normal. The level of concern to be raised by low urine output depended on how far below an acceptable level it was, and over what period. He did not believe that a very low output for one or two hours was cause for concern but that "three to four hours" was necessary to establish a pattern. 288 One focus of cross-examination concerned two passages in Professor Tatoulis' report. In his report Professor Tatoulis had written: "Specifically in the ten hours preceding the cardiac arrest, the central venous pressures are consistent at about 5 mmHg. A low/normal CVP per se does not require specific treatment if other haemodynamic parameters are within the accepted range . ... As recorded the urine outputs, although variable, were generally in the acceptable range, and apart from giving the patient more volume , based on the low central venous pressure, the urine outputs in (sic) their own did not specifically require any other or any alternative forms of management ." (emphasis added) 289 Professor Tatoulis had been expressly asked to comment upon a number of identified issues, specifically (for present purposes): "1. The standard of post-operative care provided to Mr Sherry by Hospital staff. ... 3. Do you consider Mr Sherry exhibited any signs or symptoms which were not appropriately address[ed]? If so, please state what intervention should have been made, by whom and what difference (if any) it would have made to the outcome. ..." 290 While Professor Tatoulis did comment upon the standard of post-operative care provided, he did not explicitly answer the second question, that is, whether Mr Sherry exhibited any signs or symptoms which were not appropriately addressed; nor did he state what intervention should have been made or what would have been the outcome. It is, however, implicit in his report, and from his evidence, that he considered that there were no signs or symptoms that were not adequately addressed, and that no intervention, other than was taken, was called for. 291 The extracted passages gave rise to a real conflict which emerged during Professor Tatoulis' cross-examination. An ordinary and natural reading of the first passage extracted above from his report is that, on its own, a low/normal CVP does not require specific treatment provided other haemodynamic parameters are acceptable: it does not follow that, where other haemodynamic parameters are not within the accepted range, a low/normal CVP does not require specific treatment. Unacceptable haemodynamic parameters, in conjunction with a low/normal CVP, might indicate the need for some specific treatment. Here, there were other unacceptable haemodynamic parameters: tachycardia and oliguria. A fair reading of this passage in the report would not lead to the view, in the circumstance of this case, that the CVP readings did not give rise to concern. 292 Further, in the second passage extracted, Professor Tatoulis seemed to accept that low urine outputs did require the administration of fluids but, again, taken alone, did not specifically require any other or any alternative forms of management. (In this respect it is again to be recalled that, when he wrote the report, Professor Tatoulis was under the impression that the only period of low urine output was the two hours between 11.00 am and 1.00 pm; he had overlooked the three hours between 5.00 and 8.00 pm.) 293 Even on that misconception, Professor Tatoulis appeared to be saying that the two hours of low urine output, together with the low CVP, did require fluid administration. He appears to be saying that this proposition applies even where low urine outputs are to be seen in isolation from other adverse haemodynamic parameters. It would follow that other signs of hypovolaemia would intensify the need to treat the patient by fluid administration. 294 But in cross-examination Professor Tatoulis rejected this interpretation of his report. I found his responses to cross-examination a little difficult to reconcile with the content of his report. He had earlier accepted that the urine output between 5.00 pm and 8.00 pm was not "within the accepted range"; however, when cross-examined further he said that by this he meant "below the normal range". He went on to say that if urine output below the normal range continues "for many hours", that is unacceptable (t 2182). He declined to confirm that Mr Sherry's low urine output during each hour between 5.00 pm and 8.00 pm was "unacceptable" (t 2180). This was in contradistinction to the evidence of other medical witnesses, who considered that "acceptable" urine output could be defined, based upon the body weight of the patient. 295 He would not accept that, in the second passage extracted, he had suggested that, based on the urine outputs alone, more fluid should have been administered; he said: "I said that if one was considering that the urine outputs were not satisfactory, you could give the patient more volume." (tt 2186 - 7) (emphasis added)

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He said that the combination of low CVP and the two hours of low urine output (to which he had referred) required fluid administration: "Only if one was concerned about it." (t 2187) 296 Professor Tatoulis implied that in Mr Sherry's case there was no reason for "the concern" that would have given rise to the need to administer fluid. He maintained this even when specifically questioned about the combination of tachycardia, Mr Sherry's failure to behave in accordance with the Clinical Pathway in that he was unable to get out of bed, three hours of low urine output, and low CVP. He would not accept that Mr Sherry was not behaving "normally" after 2.00 pm on 14 August. 297 And this, really, encapsulates the area of disagreement between the Glenville/Stow approach and that of Professor Tatoulis. Mr Glenville and Dr Stow saw the three salient signs as being of sufficient significance to demand the administration of fluid. These signs existed from 6.00 pm and escalated, culminating in the sudden onset of chest pain and, finally, cardiac arrest. Professor Tatoulis did not attach such significance to those readings, saying that fluid administration would be required only where the relevant medical practitioner was concerned about Mr Sherry's condition. 298 This circles around the question. It is the signs themselves (inter alia) that give rise to the concern. It was not uncommon, during the hearing, for medical practitioners to assert or acknowledge that a doctor assessing a patient looks not only at the objective signs recorded, but also at the patient, making observations of physical indications and, obviously, exercising clinical judgement. I take it that is what Professor Tatoulis was referring to when he insisted that, notwithstanding recorded signs that otherwise would have called at least for consideration of the administration of fluid, that would be necessary only if the physician was "concerned" by the signs. He seemed to be importing a factor of clinical judgement to the interpretation of the signs. This was not entirely at odds with other medical practitioners. As I have indicated, Professor Tatoulis was not the only expert to recognise, either expressly or implicitly, the importance of the exercise of clinical judgement based upon personal observation of a patient in the interpretation of the objective signs. 299 Professor Hillman's view was that the reduced air entry noted by the physiotherapist at 7.00 pm was not unusual, as some collapse of the lung bases is more the rule than the exception in post-operative cardiac patients, and more common in the presence of pain and in patients with a history of smoking, both of which pertained in Mr Sherry's case. Like Professor Tatoulis, Professor Hillman did not comment on the fact that the 7.00 pm note represented a new finding, the earlier reports having recorded decreased air entry on the right, but not the left, side. Professor Hillman observed that there was no change in the respiratory rate, and no indication of significant change in oxygen saturation levels. 300 He thought that, apart from sinus tachycardia, Mr Sherry was haemodynamically stable during 14 August, and that he had been administered GTN, designed to reduce blood pressure (indicating that, if anything, Mr Sherry's blood pressure at that time was high rather than low, as might be expected if he were hypovolaemic). He thought that the pulse rate and CVP were unremarkable, and that the urine output trend was stable. He thought that tachycardia was the only major abnormal finding but that, when considered with other cardiovascular measurements, it was not consistent with a major haemorrhage. He, also, did not comment upon the escalation in the heart rate. He would have ascribed the tachycardia to a combination of raised temperature and excessive pain. 301 Notwithstanding his different conclusions about the nature and cause of the bleeding, Professor Hillman gave some evidence about the appropriate interpretation of the signs at various times during the evening. At p 6 of his report, referring to the time between 10.00 pm and 10.30 pm when Mr Sherry suffered the increase in pain, he wrote: "Nevertheless, alarm bells should have been ringing due to a sudden change in the patient's condition with severe pain, obvious significant reduction in air entry in the left chest, together with the patient's pale and sweating appearance and problems breathing." 302 In evidence he said that, at 6.00 pm, Mr Sherry was "pretty stable" (t 2291). Notwithstanding that, based upon the observations, he said: "... and I may not be worried about the sort of excessive bleeding, but I may be worried about the fact that the patient may be a little bit hypovolaemic - a little bit dry." (t 2291)

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He thought the pulse rate alone was of little significance, there being many factors that affect pulse rate and an elevated pulse rate being fairly common in Mr Sherry's circumstance. He thought, at 8.00 pm, the signs were: " ... all within totally expected and normal limits." 303 However, in cross-examination, Professor Hillman agreed that the physiotherapist's 7.00 pm note represented a substantial change and a new finding. His evidence was that, had he been the intensivist, he would, at that stage, have administered fluids. Professor Hillman was at pains to emphasise that he is an "aggressive" user of fluids, and that not all responsible intensivists would take the same course as he. I took this to mean that Professor Hillman acknowledged that a responsible body of intensivists, without breach of duty, might not have administered fluid. 304 He accepted that cold peripheries were an important sign, and that thirst was relevant but not important. 305 When asked about Mr Sherry's condition at 7.00 pm, Professor Hillman answered: "I think that you would have in the back of your mind, you'd just be thinking, 'Well, what is the cause of this?' If the urine output and the cold peripheries responded fairly quickly to the fluid challenge, which, in 90 per cent of cases it would, then that sort of level of anxiety wouldn't get anywhere above the very lower aspects of the brain. But if the patient wasn't responding to the fluid challenge, then I would be beginning to go through the thought process, like, the lists in my mind of, 'Well, what's happening here?'" (t 2410) 306 He said that, had he observed Mr Sherry at 2.00 pm, he would have been nervous, based upon the urine output. Again, he would have then administered fluid, but again was at pains to point out that not all intensivists would have agreed with him. 307 Professor Skowronski's views fell somewhere between those expressed by Mr Glenville and Dr Stow on the one hand, and those expressed by Professors Tatoulis and Hillman on the other. He wrote in his report: "While in hindsight the [ICU Chart] can be interpreted as showing signs of extra cellular volume depletion in the hours before Mr Sherry's demise, the degree of this is minor and the evidence is quite subtle. It is not inconsistent with his post-operative state and his relatively low fluid intake. I do not believe that Drs Wilson, Marshman or Walsh should have deduced that serious underlying bleeding was occurring in the hours before his death ... In the afternoon of August 14, I believe a case could have been made for increasing the intravenous fluid therapy on the basis of the trends in the vital signs, but I believe this would not have affected the outcome."

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In a short supplementary report Professor Skowronski wrote: " ... the evolution of the changes, though readily apparent in hindsight, is subtle. No single value, nor any trend of a single variable, is sufficiently alarming as to signal clearly the development of a major problem. The most clearly abnormal variable, for instance, is the heart rate, with a maximum value of 108 bpm ... This is a minor increase. Certainly there is an increasing trend from mid afternoon, but this is associated with the development of a post-operative mild fever (itself a common and usually benign phenomenon), a well recognised cause of an increase in heart rate. A similar analysis could be applied to all of the other measured variables. ... The overall trend of all of the measured variables must be taken into account. The combination by late afternoon of a low CVP ... rising heart rate and low urine output together indicate clear evidence of volume depletion. However, the magnitude of the abnormalities is consistent with a degree of volume depletion that is minor, particularly in a patient described as warm and well perfused and with a normal blood pressure. While an increase in intravenous fluid administration would have been appropriate, this picture on the first post-operative day would be common and not necessarily sinister. The extent to which these subtle changes might serve as an early danger warning depends to a considerable degree on the overall appearance and behaviour of the patient. ... I have relied on the notes provided by the bedside nurses at [3.00 pm] and [10.10 pm] and the physiotherapist's note at [7.00 pm]. While all of these make it clear that pain was still a prominent issue, they convey no undue concern about the patient in other respects, the [10.10 pm] note even suggesting things were generally improving. These notes are consistent with Dr Marshman's claim that on his review at about 9.30 pm there was nothing alarming in his assessment of Mr Sherry. At this time the urine output was back within normal limits, the only abnormalities being a mildly increased heart rate and a low grade fever." (bold in original, italics added) 308 Professor Skowronski, in his main report, focussed upon the period between 13 August and 5.00 pm on 14 August, and then 5.00 pm to 10.30 pm. As to the first, that is, up to 5.00 pm on 14 August, he considered that Mr Sherry's observations and progress were generally within normal limits. (This was not too far removed from Mr Glenville's view, which was that, until about 4.00 pm, there was no cause for alarm.) In coming to this view Professor Skowronski specifically observed a mild increase in heart rate, which he said was consistent with mild post-operative fever and therefore warranted little attention. He recognised that the CVP measurements were in the lower range and trending downwards, but noted that, at that time, the urine output was adequate and the morning nurse's report noted that Mr Sherry was "alert, oriented, centrally and peripherally warm and well perfused." He said that, although he might have concluded that Mr Sherry was mildly volume-depleted at that time and ordered an increase in his fluid replacement, the evidence for that was not strong and he certainly would not have considered the signs to be evidence of acute blood loss. 309 In relation to the period between 5.00 pm and 10.30 pm, Professor Skowronski accepted that the signs could possibly be explained by continuing bleeding, and he believed that had he reviewed Mr Sherry between 6.00 pm and 10.00 pm he might have ordered an increase in fluid administration. However, he added, relatively minor fluctuations of the kind observed were not uncommon in the post-operative period and he noted that the heart rate and urine output returned almost to normal limits in the following two hours. He thought that if Mr Sherry's clinical state had remained unchanged during that period, having regard particularly to peripheral profusion, colour, mental state and general demeanour, it may have been reasonable to take no active measures. He did not believe the changes noted constituted unequivocal or very strong evidence of active haemorrhage, particularly in the context of spontaneous improvement after 8.00 pm. Nor did he believe that, by themselves, they should reasonably have prompted a detailed search for a sinister cause. 310 In the context of this last opinion, it is pertinent to return to the observations of Mr Sherry's family when they visited at some time after 5.00 pm. They were concerned about Mr Sherry's appearance, demeanour, and general condition. These were the descriptions of lay observers but they are significant when Professor Skowronski's hypothesis just mentioned is considered. 311 Professor Skowronski also recognised that, in hindsight, the ICU Chart could be interpreted as showing signs of extra cellular volume depletion, but added that the degree of this was minor and the evidence quite subtle, and the signs not inconsistent with Mr Sherry's post-operative state and his relatively low fluid intake. Professor Skowronski did not consider that any of the doctors should, at this time, have deduced that serious underlying bleeding was occurring in the hours before Mr Sherry's death. 312 Professor Skowronski was cross-examined about the observations recorded in the Progress Notes, together with those of Ms (Leigh-Anne) Sherry. These included the pallor and body temperature recorded by Ms Sherry, together with a relatively low CVP, tachycardia and oliguria (one hour as at 6.00 pm). He agreed that a doctor presented with all of these findings would consider a diagnosis of hypovolaemia, at least as part of a differential diagnosis. 313 He was less willing to accept that such a doctor would take steps to exclude hypovolaemia as a possibility. He agreed that the signs noted were all consistent with hypovolaemia, but said that to take the next step of excluding hypovolaemia required a judgement about the magnitude and specificity of each of the signs. He said many of the signs that had been mentioned were "quite non-specific" or only minimally abnormal, such as the heart and (as at 6.00 pm) one hour of oliguria. I found this difficult to accept. It would seem to me that it is proper to include a particular condition as part of a differential diagnosis. Then some steps might be called for to confirm or exclude it, even if those steps are, initially, no more than monitoring. Indeed, when pressed, Professor Skowronski acceded to a proposition put in the following form: "Q: If that was part of the differential diagnosis, responsible clinical practice includes taking steps to exclude it as a possibility, doesn't it?" (t 3611) 314 He also accepted that to exclude hypovolaemia as a diagnosis requires an increase in fluid replacement. He accepted that, assuming all of the features put to him as at 6.00 pm: "It would be reasonable to do [a fluid challenge]." (t 3612) 315 Thereafter what would be required would depend upon the response to the fluid challenge. 316 Professor Skowronski acknowledged that, in writing his supplementary report, he had relied upon the Progress Notes. He obviously did not then have access to the description of Mr Sherry's condition given by Ms Sherry in her evidence, to which he was taken in cross-examination. 317 Somewhat puzzlingly, despite having in the second paragraph of the extract above acknowledged that Mr Sherry's CVP was low, in cross-examination he challenged that description when it was used by cross-examining counsel; he corrected counsel's question by saying that the CVP was normal. In the end, he accepted "low end of normal" as an accurate description. He accepted that, in his report, he had said the combination of three factors, that is, low CVP, rising heart rate and low urine output, together indicate "clear evidence of volume depletion", and agreed that that had been his view when he signed his supplementary report on 30 July 2002. However, he said that his view was "not as clear cut" as it had been at that time. He thought that, by 8.00 pm, the three hours of oliguria was "the most impressive feature"; but that the CVP was unchanged, the heart rate "barely elevated", the blood pressure normal. He accepted that the description of Mr Sherry as "pale and cold" added weight to the volume depletion theory. He again accepted that it would be "a reasonable thing to do" to administer more fluid at 8.00 pm (t 3622). He did not think it was "necessarily correct" to say that any doctor working in intensive care who saw three hours of urine output of the level exhibited by Mr Sherry, in combination with the CVP and pulse rate would, in the exercise of ordinary skill and care, have given a fluid challenge at 8.00 pm. He again thought that, adding to the scenario, the observed coldness and pallor would add more weight to the suggestion that fluid should have been administered. He rejected the proposition that the previous day's bleeding had any relevance to the assessment on 14 August, saying that that was a discrete episode with a clearly identified cause and had been corrected. 318 Professor Skowronski did agree with the proposition that any doctor reviewing the signs as at 8.00 pm would include hypovolaemia as part of a differential diagnosis. He hesitated before assenting to the next proposition, which was that such a doctor would take appropriate steps to exclude hypovolaemia. His hesitation took the form of suggesting that "an appropriate step" might be to observe for another hour or so to see what happened. Professor Skowronski was cautious of the use of a fluid challenge, because that does itself carry a degree of risk. 319 Professor Skowronski agreed that, given the signs that existed at 10.15 pm, a competent medical practitioner would have considered the possibility of hypovolaemic shock. He did not agree that such signs called for percussion and did not agree that the signs called for a fluid challenge. This was because he thought, by 10.15, that Mr Sherry's signs were contradictory and inconsistent and thus the appropriate course was to wait for the x-ray. 320 Professor Skowronski was then asked about the circumstances as they existed and were observed between 10.10 pm and 10.25 pm. There is now little doubt that by this time Mr Sherry had lost at least a litre and a half of blood. Professor Skowronski agreed that the x-ray showed that the signs were dramatic, including minimal, if any, air entry to the left lung. He did not agree that the signs necessarily indicated hypovolaemia although he accepted that that was a clear possibility. If he were hypovolaemic, Mr Sherry was in severe danger of developing hypovolaemic shock. This is a condition which needs to be treated aggressively, firstly by aspirating some of the blood from the chest cavity. Professor Skowronski suggested that this in itself carried some risks, notably of piercing the lung; but, on further cross-examination, he accepted that, given what could be seen on the x-ray, there was virtually no left lung that could be punctured in this way. He did not accept that an intensivist, notified of Mr Sherry's condition, would necessarily have directed the administration of fluids (t 3701). 321 Professor Skowronski was then asked about the posthumous note made by Nurse Ford, recording two items of present significance: one that Mr Sherry had, at 10.45 pm, settled with a face-head wash; and second that, at 10.50 pm, he had complained of nausea. Professor Skowronski agreed that nausea can by a symptom of hypotension or hypovolaemic shock and that mental confusion is another. 322 He would not, however, accede to the proposition that the note that Mr Sherry had settled with a face-head wash implied that he had previously been unsettled or that that was consistent with confusion and discomfort. 323 In this respect it is notable that SAH elected to call none of the nurses who had recorded observations in the Progress Notes. That means that I am thrown back upon the record itself. I would read the note in the way suggested by counsel for the plaintiff: that is, that it was some evidence of unsettled behaviour by Mr Sherry prior to the face-head wash. 324 In any event, Professor Skowronski agreed that, if a CMO observed nausea in conjunction with the signs and findings shown on the x-ray, then he would realise that a patient was either in hypovolaemic shock or hypotensive. He agreed that, on these signs, the time had come to administer fluid; and that: "it would be only an exercise of ordinary skill and care to give him fluid ..." (t 3715) 325 Professor Skowronski agreed that, at 11.00 pm, when Mr Sherry was recorded as complaining of feeling light-headed and dizzy, he was almost certainly hypotensive and that light-headedness and dizziness is a classic sign of hypotension and it was critically necessary to give him fluid. 326 When re-examined in respect of the cross-examination concerning the signs at 8.00 pm, Professor Skowronski was asked to factor in to the assumptions he had made, the further assumption that, by that time, the pulse had come down from 108 to 104, and that the urine output had, in the next hour, returned to 50 and there remained for another hour. Of these, he said the first tended against the conclusion that there was volume depletion, and the second (restoration of urine output) tended more strongly against it. (Of course, the cross-examination concerned the signs as they existed at 8.00 pm; there was then no evidence of restoration of urine output.) He thought, because other signs were static, apart from three hours of oliguria, it was reasonable at 8.00 pm to wait and make further observations before taking any active steps. 327 Professor Skowronski was asked about a set of assumptions concerning the circumstances as they existed at 11.00 pm. These included that Mr Sherry became hypotensive only at that time and prior to that the pressures had been substantially as they had been at 10.00 pm. At that time, on those assumptions (which were largely borne out by the evidence) Professor Skowronski did not think that Mr Sherry was demonstrating signs on which hypovolaemic shock should have been diagnosed or suspected. 328 There was one additional expert called on behalf of the doctor defendants. This was Dr Roger Harris. In compliance with the instructions he received Dr Harris confined his attention to the period between about 10.00 pm and 11.00 pm, that is the last hour prior to Mr Sherry's cardiac arrest. Dr Harris was provided with the Progress Notes, the ICU Chart and responses made to interrogatories administered to each of the doctor defendants. 329 In the introductory part of his report Dr Harris stated that he had been employed as a staff specialist in Emergency Medicine at the RNSH since 1997, had worked as a Visiting Medical Officer Staff Specialist in the Emergency Department at The Hills Private Hospital and was regularly employed as a VMO locum in the ICU at Port Macquarie Base Hospital. He holds the executive position of Deputy Director of the Emergency Department at RNSH and is a full academic lecturer for the University of Sydney. He has recently been awarded the College of Emergency Medicine Foundation Medal for his contribution to the development of the College of Emergency Medicine conference in October 2003. 330 A more detailed curriculum vitae was in evidence together with a report dated 28 May 2004 provided by Dr Harris. Dr Harris' expertise was a matter of some contention. 331 In cross-examination, in answer to the following question: "You would not hold yourself out as an expert in cardio-thoracic intensive care medicine, would you?" (t 3894)

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Any "exposure" of Dr Harris' original evidence as an overstatement in fact emerged from his own, volunterred, answers. 336 This is not dissimilar to the attack that was made upon Mr Glenville by counsel for the doctor defendants. Even if the first answer extracted above could, in the light of the subsequent evidence given, be seen as somewhat disingenuous, the immediately following answer dilutes any adverse impact. Dr Harris volunteered that there were two different intensive care units involved and that his experience had been in that which did not deal predominantly with cardio-thoracic patients. 337 In answer to a direct question, Dr Harris accepted that he would not hold himself out as an expert in intensive care medicine. 338 Overall, I did not think that Dr Harris did attempt to portray himself as having greater qualifications than he did, although his description of his qualifications could have been more explicit. It is a little curious, given the impressive credentials of the other experts called by the defendants (in that I include SAH's experts), that the doctor defendants would rely upon the evidence, specifically relevant to intensive care, of a person who had not yet attained his specialist qualifications in that field. His qualifications did not compare with those of the other experts, nor of Dr Wilson himself. 339 There were other aspects of Dr Harris' evidence, also said to be unsatisfactory, which must be considered. One of these concerned inaccuracies contained in his report. I will deal with one illustration upon which the plaintiff relied. In the opening of his report, under the heading "General Comments", Dr Harris recited a short history of the events which occurred during the time period he had been asked to review. In the course of this he noted that Dr Walsh was first asked to review Mr Sherry, as a result of his sudden increasing left-sided chest pain, at about 10.10 pm on 14 August. Dr Harris then wrote that Dr Walsh, after examining Mr Sherry, had written in the Progress Notes that Mr Sherry was haemodynamically stable. This was not correct. Dr Walsh had made no such note. There was no real explanation as to the source, or cause, of the mistake, or of where Dr Harris obtained, or thought he had obtained, the information that Dr Walsh, at about 10.10 pm, had assessed Mr Sherry as haemodynamically stable. It may be that the source was an answer given by Dr Walsh to interrogatories (Exhibit C12). Dr Walsh there said that he saw Mr Sherry at about 10.15 pm and, inter alia, that "his observations were stable". The inaccuracy was perpetuated. Dr Harris went on to write in his report: "Correlating this entry in the medical notes with the intensive care nursing flow chart, I find nothing to dispute Dr Walsh's comments." 340 Under cross-examination, Dr Harris agreed (as is obviously the case) that there is virtually no information, and certainly no relevant information, recorded on the ICU Chart at any time after 10.00 pm. It was therefore not possible for Dr Harris to correlate what he believed to have been an entry in the medical notes about observations at that time with the information in the ICU Chart. 341 It would be an unsurprising but unfortunate mistake if Dr Harris had, inaccurately, reported that Dr Walsh's observations that Mr Sherry was haemodynamically stable were recorded in the Progress Notes, if indeed he had information to that effect but from another source; however, that error was compounded by his assertion that the observation was confirmed by correlation to the information contained in the ICU Chart, which, on cross-examination, he conceded was not possible. Further, his attempt to deal with this situation was unsatisfactory. He gave this evidence: "You are suggesting that in the 10 minutes between when the nursing flow chart ceases and when Dr Walsh commenced assessing the patient that there's been some quantum leap in the patient's condition. My interpretation of the flow chart is that there's been virtually no change in the patient's condition throughout the afternoon, and the nurses have just recorded the observations at 10 o'clock and asked the doctor to see the patient at 1010." (t 3861) 342 Even that cannot be accepted. The reason Dr Walsh was called was because of the sudden increase in left chest pain; it cannot have been right for Dr Harris, in those circumstances, to assume that, had there been readings recorded on the ICU Chart, they would have indicated a continuation of the stability that had previously been recorded. 343 There were also inaccuracies in Dr Harris' interpretation of the ICU Chart, parallelling those of Professor Tatoulis. In what appears to be quite a clear entry on the ICU Chart, Mr Sherry's systolic blood pressure was recorded as at 10.00 pm at 125 (or a fraction above that); and the diastolic at 75 (as it had been at 8.00 pm). In his report Dr Harris wrote that the blood pressure was: "approximately 110 mmHg to 120 systolic over 60 - 70 diastolic".

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Dr Harris replied: "Well without having the nurse here to tell me, I can't be sure of that." (t 3864) 346 When asked to identify where on the ICU Chart he had obtained the reading, for 10.00 pm, of 110 - 120, Dr Harris answered: "Because if you look at that chart in the preceding hour that is where the blood pressure has been and tended to be. You know, the hours before that it was higher, but if you notice I give a range, so therefore that is an approximation." (t 3864) 347 The cross-examination continued but Dr Harris' answers did not become any more convincing. 348 The same situation arose when Dr Harris was asked about his interpretation of the ICU Chart's recording of the diastolic blood pressure. At one point he characterised the conflict as "a matter of semantics", and of interpretation of the ICU Chart. He claimed that the entries on the chart were mere approximations and not to be taken as absolute measurements. It was put to Dr Harris that his report was "sloppy", to which he replied: "No, I don't think so at all. I think that in fact I was asked to provide a report, which I did so, to the solicitor. The solicitor sent it back to me with a notice saying we need to clarify some points. You know, I'm a highly trained medical specialist. I'm not a lawyer, so I don't write - you know, I write the report based on the facts that were given to me and obviously need direction as to -" (t 3879) 349 I will deal with just one more issue of inaccuracy in the report. Dr Harris wrote: "During the final hour in question, between approximately 10.00 pm and 11.00 pm, the ITU (sic) chart shows no evidence of hypotension." 350 This could clearly convey to the reader that the ICU Chart contained recordings, but those recordings did not show evidence of hypotension. Of course, as noted above, there were no relevant recordings after 10.00 pm. The observation in the report, while technically correct, could be seriously misleading. Dr Harris explained that by saying that he was, in fact, using the ICU Chart in conjunction with the rest of Mr Sherry's intensive care record. 351 I confess that I find these matters of some concern. Coupled with his relative lack of experience and expertise in intensive care, these inaccuracies, which they plainly are, raise doubts about Dr Harris' evidence. They may reflect that lack of experience and/or expertise; they may reflect a lack of the attention to detail on which this case so heavily depends; or they may reflect an attempt to cast the cases put on behalf of the doctor defendants in a better light than is warranted. I make no specific finding in relation to the last of these. I could not be satisfied that Dr Harris was consciously attempting to mislead the court. However, these matters do make it difficult to place a great deal of reliance upon his evidence. 352 Two other matters must be mentioned, although briefly. In the opening to his report, Dr Harris acknowledged that he had "some previous knowledge" of all three doctor defendants by reason of their common engagement at the RNSH. He expanded upon this in cross-examination. He said that, in his current professional position, he was working with patients upon whom Dr Marshman had operated; and that Dr Wilson was, in fact, his "boss" at the RNSH. He said, however, that he had never met any of the three doctor defendants socially. It was not put to Dr Harris, and it was not put against him in submissions, that he had consciously or deliberately tailored his evidence in order to accommodate any respect or admiration for, or dependence upon, either Dr Marshman or Dr Wilson. The most that was put in submissions is that Dr Harris may have been unconsciously affected in his approach to the task he was asked to perform. 353 This strikes me as another curious aspect of the reliance upon Dr Harris. It is strange that the doctor defendants would rely, as an expert commenting specifically upon his treatment, on the subordinate of one of them. Since Dr Harris was asked to focus upon the period between 10.00 pm and 11.00 pm, his opinion went principally to what Dr Walsh had or had not done, but also to Dr Wilson's treatment on his arrival. The point made by counsel for the plaintiff is valid. However, it also was not put to Dr Harris that he was, consciously or unconsciously, affected by the position he held vis a vis either of those doctors; I recognise that, had that question been put, it may well have been an arid exercise. I do not find it necessary to embark upon a final consideration of bias on the part of Dr Harris. It is possible that bias explains some of the unsatisfactory aspects of his evidence, but bias is far from the only possible explanation. 354 Finally, there is a matter which goes, in a sense, to Dr Harris' expertise. He, and he alone of the medical experts, advanced a theory of medical treatment, potentially justifying the failure to attempt to resuscitate Mr Sherry with the administration of fluid by reference to a theory of medical treatment known as "minimal fluid resuscitation". In his report, Dr Harris acknowledged that basic resuscitation guidelines available during the early 1990s would have suggested that some initial volume resuscitation was appropriate for a patient suffering tachycardia and presumed bleeding. He then wrote: "However subsequent to this teaching throughout the remainder of the nineties there was a progressive shift towards the concept of minimum volume resuscitation for uncontrolled blood loss. This body of opinion encompasses the idea that simply resuscitating a patient with fluid does nothing to stop the bleeding. In fact it could possibly be harmful because fluid resuscitation increases the patient's blood pressure further increasing the uncontrolled bleeding. In addition to this effect, fluid resuscitation more than likely will dilute the patient's blood clotting factors and worsen the patient's clotting profile. Based on these two main facts, the concept of minimum volume fluid resuscitation in uncontrolled blood loss has gained favour throughout the late nineties and since that time." 355 It was Mr Glenville who first exploded this theory. He said that it was a theory put forward by Texan physicians, in respect of out of hospital management of patients who had been subjected either to abdominal or thoracic trauma; the most important aspect of it was that it was designed for treatment of a patient before arrival at a hospital, and not for a patient in an ICU. Dr Stow agreed. He said: "I start by saying it is a controversial theory and that it has virtually no place, or only in certain circumstances, in intensive care, even today, and in 1997 I don't believe that anybody was practising the use of minimal volume resuscitation in intensive care in Australia." (t 1383 - 4)

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He agreed that it was for out of hospital situations, and for some other presently irrelevant circumstances. No other expert supported Dr Harris' position on minimal fluid resuscitation. 356 None of the doctor defendants, nor SAH, sought to rely upon the theory, either as a reason for not having administered fluid to Mr Sherry, or as an ex post facto basis justifying the non-administration of fluids. It is of some interest that Dr Harris was not asked about the theory in examination-in-chief. However, he was pressed about it in cross-examination. He continued to defend it. He said: "I think both in the 90s and certainly today , the feeling would be that if ... the patient has got ongoing bleeding and we can't physically immediately stop the bleeding ... to volume resuscitate the patient, thereby further increasing their blood pressure or intravascular volume, potentially makes the bleeding worse." (t 3923, emphasis added) 357 Dr Harris was confronted with publications of Professor Hillman (who had acknowledged himself to be a strong proponent of volume replacement) advocating that course. On one occasion Dr Harris simply expressed his disagreement with Professor Hillman; on another he said that, if Professor Hillman put that view in an international meeting: "there would be howls around the world ..." 358 In one sense, given the decision of the defendants not to pursue any reliance upon a defence in part dependant upon a theory of minimum fluid resuscitation, the issue has become something of a red herring. However, it is significant in the assessment of Dr Harris' evidence. I am forced to evaluate the relative expertise of those witnesses who expressed an opinion on the theory. The evidence is overwhelmingly in favour of those who discount the theory, at least as relevant for present circumstances, and against the views propounded by Dr Harris. This must cast some doubt upon his expertise and the extent to which I can rely upon the opinions he expressed. I also found Dr Harris' readiness, at his stage of intensive care training and experience, to set himself up in opposition to, and to comment unfavourably upon, the written work of a specialist of the eminence of Professor Hillman, somewhat disconcerting. 359 Having dilated at some length upon the reasons that lead me to treat Dr Harris' opinions with caution, I will deal with them briefly. Dr Harris was asked three specific questions, bearing in mind that his consideration was confined to the last hour. These, together with an encapsulation of his answers, are set out below. 360 The first question was: "Were Dr Walsh's management decisions reasonable in the circumstances?"

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He agreed that each of the signs just mentioned was "fundamental" to the diagnosis of Mr Sherry as at 10.15 pm. 365 Dr Harris joined the list of doctors who did not accept that percussion ought to have been carried out by Dr Walsh at or shortly after 10.15 pm. He did not agree that percussion would necessarily have excluded the mistaken diagnosis of pneumothorax. He did say that, if his provisional diagnosis included either pneumothorax or haemothorax, he himself would tend to percuss the chest; that was because percussion has the potential to provide immediate information. However, he immediately went on with a qualification, that the information is just as likely to be misleading as useful. 366 Although Dr Harris agreed that a fluid challenge is both a diagnostic tool and a treatment, he did not accept that, on suspicion of the possibility of hypovolaemia, a doctor would administer fluid. 367 Dr Harris agreed that he would not regard a patient who was pale, sweaty, tachycardic, had two litres of blood in his chest, a left lung compressed against his vertebral column and evidence of mediastinal shift as haemodynamically stable. The usefulness of that answer to the plaintiff depends upon her establishing each of the assumptions on which the answer was based. Only two of these were seriously in issue: these were the compression of the left lung against the vertebral column, and evidence of mediastinal shift. Mediastinal shift is the displacement of the internal structures of the chest - for example, the heart and the lungs. 368 Dr Harris refuted "entirely" the proposition that, as at the time Dr Walsh saw Mr Sherry a little after 10.10 pm: "there was every indication to insert a chest drain and to do so immediately" (t 3924) 369 In re-examination Dr Harris adhered to his view that the signs put to him in cross-examination as assumptions were consistent with hypovolaemia; but said that they were consistent with several other pathologies as well; that there were many signs that were inconsistent with hypovolaemia; and that the diagnosis as at 10.10 pm of pneumothorax was probably the most "likely". He thought that the 9.00 pm and 10.00 pm recorded urine outputs would have had "a huge effect" on a doctor's decision concerning the administration of fluid; the apparent urine recovery strongly contraindicating a diagnosis of hypovolaemia. 370 I turn now to deal with the evidence on this issue given by the defendant doctors themselves. It is obvious that each of them has a personal interest in defending his own judgment and conduct. However, in respect of none of the defendants did I detect any dissembling or defensiveness. There was no sign, to my observation, that indicated that I should treat the evidence of any of the doctor defendants as less worthy, by reason of his credibility, than that of any other witness. Each of these doctors was in an extraordinarily difficult position. I was satisfied that each had devoted many hours to assisting in the preparation of the case, and analysing the events, and the recordings of signs, which are the centrepiece of this case. It is not to be wondered at if this has produced some degree of reconstruction in the evidence given. 371 The bulk of Dr Marshman's evidence on this issue was given in response to cross-examination by counsel for the plaintiff. Dr Marshman did accept that, on the basis of Mr Sherry's CVP reading, his tachycardia, the three hours of oliguria between 5.00 and 8.00 pm (although apparently recovered by 9.00 pm), the new finding of reduced air entry on the base of the lung at 7.00 pm, the level of pain and the level of morphine administration, his pallor and coldness, and his failing to reach the expectations of the Clinical Path, he would have expected the nurse, between 8.00 pm and 9.00 pm, to have contacted either Dr Walsh or Dr Wilson. He thought that, if Dr Walsh had been called, he would have called the surgeon "if he were concerned" about Mr Sherry's condition. He did not accept that a chest x-ray should necessarily then have been carried out, saying that that depended upon a physical examination. However, he then agreed that if all those signs had been present when Dr Walsh examined the patient, then the next logical step would have been to order a chest x-ray (t 3483). 372 He agreed that, on the basis of the description of the plaintiff's observations of Mr Sherry at the time she and the family visited, Mr Sherry was not as well as he should have been and that, at this time, involving Dr Walsh was indicated. He did not agree that percussion of the chest was then necessary, saying that auscultation would be sufficient if that showed that air entry was satisfactory; if air entry was not satisfactory then a chest x-ray and percussion would be indicated. 373 Dr Marshman was asked about his visit to Mr Sherry at about 9.30 pm. He said that he had read the Progress Notes and the ICU Chart but was not necessarily aware that Mr Sherry had not been able to fulfil the expectations of the Clinical Path by ambulating, with help, to a chair. He did not agree that, on the basis of what he observed, he should have conducted further investigations. However, when asked in his evidence-in-chief about what he would have expected to see had the bleeding started, as hypothesised by Mr Glenville and Dr Stow, at about 1.30 pm and continued until 9.30 pm at a fairly regular rate, he said he would have expected, at 9.30 pm, to have seen a fall in blood pressure, a fall in CVP, a fall in oxygen saturations and a steady or raised heart rate and low urine output. He said that the one rule in relation to urine output is that it is possible for poor urine output to coexist with good cardiac output but the reverse, that is, poor cardiac output and good urine output, cannot coexist. None of the signs to which he referred was in existence at 9.30 pm. 374 In cross-examination Dr Marshman was asked about the 8.00 pm readings and observations. In the light of the then recorded three hours of oliguria, tachycardia, severe pain, pallor and coldness, and particularly the new sign of reduced air entry at 7.00 pm, he said that he would have expected the nurse to have notified Dr Walsh or Dr Wilson (although he qualified this by adding that he would only expect that if the nurse did not know that the doctors were aware of the signs, by, for example, having recently seen the patient); he would have expected Dr Walsh to have notified himself. He did not accept that the logical next step would be a chest x-ray unless Dr Walsh had some concern about the physical examination of Mr Sherry's chest. However, when the same assumptions were put to him again (t 3483), he said that if all those things were present on examination by Dr Walsh, then the logical next step was an x-ray. All of the signs put to Dr Marshman were signs that could be associated with hypovolaemia. He expected that a CMO seeing a patient with those signs would include hypovolaemia as part of the differential diagnosis. In those circumstances, he thought it would not be unreasonable to administer fluid (t 3484). (This was not a concession that good medical practice demanded that fluid be administered.) He rejected the suggestion that, on the basis of his observations of Mr Sherry's condition at 9.30 pm, he ought to have carried out auscultation and percussion. He said that Mr Sherry had very good chest expansion indicating an adequate volume of air entering and leaving the chest. He rejected the proposition that he, too, should at that time have ordered a chest x-ray. 375 Dr Wilson gave extensive evidence about the course of events from the time of Mr Sherry's surgery until his death. His credit also was significantly attacked and I should deal with those attacks at the outset. I observe here, as with Dr Marshman, that I noted nothing in the manner of his giving evidence that gave me any cause for concern or to doubt his honesty, his integrity, or his genuine attempt to recount the events as he recalled them and to give his opinions where he was asked. 376 The attack on Dr Wilson's credibility as made in the written submissions (D12 - D29 incl) tended to confuse issues of credibility, and issues as to whether or not his evidence should be accepted. The two are not necessarily the same thing. Lack of credibility may be a good reason why evidence may not be accepted; but evidence may be not accepted for reasons other than lack of credibility. This is particularly so where the evidence given is of the expert variety and the task is to weigh up competing opinions, each honestly held. 377 At present, I propose to deal only with those aspects of the submissions which really call into question Dr Wilson's honesty. The first attack upon him was along these lines. It was asserted that he had, in his evidence-in-chief, sought to give the impression that he was wholly dedicated to SAH when on duty there, but that this was belied by other evidence. The other evidence consisted of entries drawn from Dr Wilson's diary. Dr Wilson held dual appointments, one at SAH, and one at RNSH. He shared his time between the two hospitals and had obvious commitments to the ongoing work, not only of SAH, but also of RNSH. 378 Dr Wilson's diary (extracts of which constitute Exhibit CCC) contained entries showing a number of scheduled meetings at RNSH, on Monday 11 and Tuesday 12 August at times when he was rostered on duty at SAH. Dr Wilson was extensively cross-examined on these entries. The first meeting scheduled for 11 August was noted in his diary as an interview at 7.45 am. In his cross-examination Dr Wilson seemed to accept that he had attended that, but said that it would have been short because it was necessary for him to be at SAH in time for the morning handover, which occurred at 8.00 am. 379 Although the timing is difficult to reconcile (it is reasonable to think that the journey from RNSH to SAH would alone take at least 15 minutes), the issue on this meeting really went nowhere, since there was no suggestion that Dr Wilson had not undertaken his handover duties at SAH on Monday 11 August. The point of the cross-examination appeared to be an attempt to show that Dr Wilson tended to concentrate his attention on endeavours other than his duties at SAH. 380 More was sought to be made of a meeting scheduled for 5.00 pm on that day. The diary entry, however, had a cross through it, which Dr Wilson said meant either that it was cancelled, or that he did not attend. 381 The diary showed another entry for a meeting at RNSH on 12 August beginning at 5.00 pm and ending at 7.15 pm. Dr Wilson could not recall whether he had attended that meeting or not. There was no other evidence that he had attended. Notwithstanding this, the submission was put that the diary showed that Dr Wilson had attended that meeting and that, taking into account travel time, he must have been away from SAH's ICU from about 4.00 pm until about 8.00 pm. I am not satisfied that the evidence does establish that Dr Wilson attended that meeting. Nor am I satisfied that, even if he did, it denotes any lack of commitment on his part to his duties at SAH. 382 The most substantial attack on Dr Wilson concerned a second instance of the same kind. Another diary entry noted a meeting with a Professor George Rubin at the University of Sydney between 5.30 pm and 7.30 pm on 14 August. If Dr Wilson had attended such a meeting, he could not have participated in the 6.00 pm - 7.00 pm handover round, as he claimed in his evidence (supported by Dr Walsh). Dr Wilson denied that he had attended any such meeting. He was cross-examined at great length, the obvious aim of the cross-examination being to establish that, in dereliction of the duty he owed to SAH and its patients, including Mr Sherry, he had for unexplained reasons, absented himself, and been many kilometres away, in circumstances (given the time and known traffic conditions) that would have made it impossible for him to respond to an emergency at SAH. If I were so to find the consequences would be manifold: it would mean that Dr Wilson had not made the observations of Mr Sherry that he claimed to have made at the handover round; it would reflect adversely upon his commitment to SAH and its patients; and it would impact seriously upon his credibility. There was no evidence to contradict Dr Wilson's denial. Although it was not ultimately submitted that Dr Wilson had in fact attended that meeting, his evidence was described as "perplexing". This was because SAH rostering was done at the beginning of the year and his roster would then have been entered in Dr Wilson's diary, meaning that his note was made at a time when he knew that the meeting with Professor Rubin would cut across his SAH duties. If he had not intended to attend the meeting (knowing that would be on duty at SAH), why would he make the entry? 383 A further point that was made concerned evidence eventually given by Dr Wilson in cross-examination, when he asserted that he knew that he had not attended that meeting. Dr Wilson said that, in the preparation of his statement for the purpose of these proceedings, he used his diary and this alerted him to the entry concerning the meeting scheduled with Professor Rubin. However, said Dr Wilson, he had asked Professor Rubin for any information in his possession, and Professor Rubin had told him that he had no record of anything to which that meeting would relate. 384 The fact that he had checked with Professor Rubin was characterised as casting doubt upon his evidence. The question was asked rhetorically: "Why would [Dr Wilson] have needed to check with Professor Rubin if he remembered seeing Mr Sherry in the afternoon and evening of 14 August?" 385 The submission is, in my opinion, disingenuous. It was perfectly reasonable for Dr Wilson to make inquiries of Professor Rubin. I accept without reservation Dr Wilson's evidence that he did not attend the meeting with Professor Rubin and that he was on duty at SAH at the times he said he was. There was, ultimately, no submission put that Dr Wilson had not seen Mr Sherry at the time he said he had, although this was thoroughly canvassed in cross-examination. 386 Finally, on the credit issue, Dr Wilson was asked about the retention of information contained on the electronic monitors in the ICU after Mr Sherry's death. His evidence was that these monitors retained information for a period of four or eight hours before it was automatically deleted. During that four or eight hours the information could have been retrieved by "interrogating" the machines. After Mr Sherry's death, therefore, there was a period of four or eight hours in which any otherwise unrecorded information could have been obtained from the machines, but Dr Wilson took no steps to ensure the preservation of that information. This was so even though an immediate decision had been made by Dr Marshman, with Dr Wilson's concurrence, to notify the Coroner of Mr Sherry's unexpected death. In written submissions, Dr Wilson's failure to have the information preserved was described as "a significant one". 387 No doubt something was sought to be made of Dr Wilson's asserted mala fides in this respect. That, also, I reject. Firstly, it was very plain that all doctors involved were deeply shocked and disconcerted by Mr Sherry's death. There was no reason, at that time, for them to think of preserving information. Secondly, there was no reason why they should have believed that the machines may have provided information which could have inculpated any of them in some form of malpractice. Concealing evidence of malpractice could have been the only conceivable reason for Dr Wilson deliberately to avoid retrieving the latent information on the machines. Thirdly, nothing was identified that the machines, if interrogated, might have produced that would have thrown light upon the present issues. Whatever material was lost might equally have helped the defendants' cases. These attempts to cast Dr Wilson in an adverse light entirely failed, as did the attack upon his credit generally. 388 In oral submissions, this attack was considerably diluted. Senior counsel accepted that he could not put the proposition that the material had been wiped deliberately, and recognised that, in all the circumstances, it would be too "savage" to suggest the kind of mala fides that had, earlier, been suggested. 389 Although the scope of cross-examination was relatively limited, I think it is a pity it was entered into at all. There never was the slightest reason to think that Dr Wilson, or anybody else, deliberately allowed any information to be lost. 390 In the end, all that was sought to be made of this was a submission based on the decision of the High Court in Allen v Tobias [1958] HCA; 98 CLR 367, adopting, at 375, the statement of principle pronounced in The Ophelia (1916) 2A.C. 206, as follows: "If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case." 391 Any allegation of intention on the part of Dr Wilson to destroy evidence is rejected. The alternative proposition, that, by reason of the destruction of the records, his evidence is without corroboration, seems to me to be meaningless in the circumstances of this case. I draw no inferences about what information might have been contained on the monitors. 392 It was put to Dr Wilson that, at 10.15, when Dr Walsh was called to see Mr Sherry, he should then have called Dr Wilson, even before having the results of the chest x-ray he had ordered. Dr Wilson disagreed. He thought that that would have been so had Mr Sherry been haemodynamically unstable when examined by Dr Walsh, but that, if he had been haemodynamically stable, then it was reasonable to wait for the short time it would take to complete the diagnostic assessment process. 393 It was Dr Wilson's opinion, on his interpretation of the ICU Chart and the Progress Notes that, at that time, the signs indicated that Mr Sherry was haemodaynamically stable. 394 Thus, it became important to determine whether, at that time, it was correct to describe Mr Sherry's condition as "haemodynamically stable". It will be remembered that Mr Glenville took the view that the physiotherapist's 7.00 pm note of reduced air entry on the left base of the lung was a significant new finding which should have set alarm bells ringing. It was suggested to Dr Wilson that, in the light of that entry, it was not correct to describe Mr Sherry at that time as haemodynamically stable. This gave rise to a digression into Dr Wilson's own observations. In evidence-in-chief Dr Wilson had said that in 1997 it had been his usual daily routine to attend the hospital in the morning in time to be brought up to date on any problems that had occurred overnight and then commence a formal ward round with the nurse supervisor and the CMO if available. This would continue until 11.00 am or midday. He would then deal with new admissions and paperwork. It will be remembered that a "handover round" was conducted at some time between 6.00 pm and 7.00 pm, the time depending on the circumstances. The records of each patient in the ICU were looked at during this round, which also involved the nursing team leader and the CMO, although this was a much less formal exercise than the morning round. 395 The Progress Notes contain no entry recording any observations of Mr Sherry by Dr Wilson on the evening of 14 August. It was thus suggested that some doubt existed as to whether or not he had in fact participated in an evening handover round. This, in turn, was said to cast doubt upon his evidence that he had observed Mr Sherry. 396 In answers to interrogatories Dr Wilson had said that the absence of any notes made by him of problems with Mr Sherry's respiratory pattern meant that, at the time of his observations, he had not detected any changes out of the ordinary for a patient who had had a left thoracotomy. He said that he had detected diminished air entry on the left side "from the time of my morning examination of August 14" (t 2675). He had not, however, recorded this in the notes, because it was not an unexpected finding. 397 (This interrogatory and its answer did not go into evidence in documentary form. Evidence of what Dr Wilson said in answer to the interrogatory emerges from his cross-examination. The questions and answers, as they appear on the transcript, are not unambiguous. However, it appears from the whole of the questioning, that what Dr Wilson was saying in the answer extracted above was that, during his morning examination, he detected diminished air entry on the left side, and not that, by the afternoon round, air entry had diminished since the time of the morning round.) The significance of all this concerned Mr Glenville's strong opinion that the reduced air entry on the left base, noted by the physiotherapist at 7.00 pm, was an important new sign signifying deterioration in Mr Sherry's condition. It was Dr Wilson's position that, as might be expected following a left thoracotomy, Mr Sherry had had reduced air entry on the left side from at least the early morning, and that the physiotherapy note therefore did not represent any new departure or significant deterioration. Some objective support for Dr Wilson's position is to be derived from the radiological evidence showing some left lung collapse before 7.00 pm (although this does not necessarily entail clinically observable collapse). 398 Dr Wilson was also asked about the proper characterisation of Mr Sherry's condition when Dr Walsh saw him at about 10.15 pm. He rejected the suggestion that a sudden increase in chest pain is consistent both with pneumothorax and haemothorax: he said that it was consistent with pneumothorax, but that haemothorax is generally painless. The sudden increase in chest pain experienced by Mr Sherry did not then bespeak haemothorax. 399 He agreed, however, that pallor and sweatiness are consistent with hypovolaemia (among other things). He agreed that the inability adequately to inhale or exhale in long slow breaths is consistent with both pneumothorax and haemothorax, as is decreased air entry on the left side; and that sinus tachycardia is consistent with hypovolaemia and that one cause of hypovolaemia is blood loss. The references to pallor and sweatiness, and breathing difficulties, were drawn from answers given by Dr Walsh to interrogatories. 400 Senior counsel turned to the question of percussion. He suggested that, if Dr Walsh had percussed Mr Sherry's chest at 10.15 pm, he would have discarded the diagnosis of pneumothorax and recognised that Mr Sherry probably was suffering from a haemothorax. Dr Wilson said that he found that a very difficult question to answer. He accepted that percussion of a patient suffering pneumothorax would give a quite different sound to percussion of a patient suffering haemothorax. The clinical picture then pointed more strongly towards pneumothorax than haemothorax, that in part being because of the pain suffered by Mr Sherry, but percussion would have given a contrary conclusion. 401 Dr Wilson raised doubts about whether the x-ray showed displacement of the trachea or mediastinal shift. 402 As at 10.30 pm Dr Wilson thought the signs were confusing: the starting point was that Mr Sherry had a clinical change with severe pain. However, an x-ray abnormality which appeared to be a haemothorax was not consistent with pain, and Mr Sherry had been assessed as haemodynamically stable. 403 Dr Wilson did direct Dr Walsh to insert a chest drain without delay. There were three reasons for the insertion of a chest drain: firstly, to determine conclusively if the substance observed on the x-ray was blood; secondly, to remove the blood; and thirdly, to enable monitoring so as to determine whether the bleeding had stopped or was ongoing and would require further intervention such as surgery (t 2755). 404 Dr Walsh's evidence on these issues can be dealt with with relative brevity. As I have noted above, he saw Mr Sherry during the routine evening handover on 14 August and was aware that there was some difficulty with pain control, and that his pulse rate was, in Dr Walsh's view, "slightly high". He thought that the reading denoted a "low grade sinus tachycardia". In the context of the stability of all other parameters, he thought that this was not a concern and could be explained by many circumstances. 405 The evidence does not disclose the precise time of the evening handover on 14 August. Dr Walsh had no specific recollection of examining Mr Sherry's ICU Chart, but said that it had been his practice to do so. His evidence was given, not from recollection, but from an examination of the ICU Chart. On that basis, he thought that there was nothing disclosed at 6.00 pm which would have suggested that it would be desirable to administer fluid. Dr Walsh was asked, as were the other medical practitioners, about the physiotherapist's 7.00 pm record of reduced air entry at the left base. In common with some other medical practitioners, he took the view that this was of no significance, and, that, had he known of it (he was not sure if it had been brought to his attention or not), it certainly would not have concerned him. This was because, he said, it is invariably the case that patients following cardiac surgery have lung collapse and consolidation of the lower part of the left lung. 406 When asked about the records as they appeared on the ICU Chart at 8.00 pm, Dr Walsh maintained that no cause for alarm was disclosed. This was because Mr Sherry's blood pressure, mean arterial pressure, and CVP were all steady and within normal range; that the administration of the drug GTN had been ceased with no apparent elevation of blood pressure; his temperature, at about 38 degrees, was fairly to be expected following his surgery; although his heart rate still qualified for the description of borderline tachycardia, it had decreased a little since 6.00 pm, and was readily explicable by the administration of Ventolin, fever and pain; urine output by that time had been low for three hours, but having regard to the earlier period of low urine output followed by recovery, this warranted only alertness but no other specific action; oxygen saturations were "very, very good"; respiratory rate was stable. There was nothing to indicate that a chest x-ray should be taken at that time. Nor would he have ordered fluid at that time, preferring to wait another hour to see if recovery occurred spontaneously. Dr Walsh did not consider that when he saw Mr Sherry at 10.15 pm there was anything in the signs and symptoms which suggested the need for fluid resuscitation therapy. This was for the same reasons given earlier: blood pressure readings were stable, and similar to what they had been throughout the evening; heart rate was stable, as was CVP; and Mr Sherry was then, apparently, making urine. Even by 10.45 pm or 10.50 pm, after having seen the x-ray and examined Mr Sherry and the monitors, Dr Walsh maintained that Mr Sherry's haemodynamic parameters had not changed and there was no need to administer fluids; the priority at that time was to insert a chest drain. 407 Dr Walsh was subjected to probably the most sustained attack of all doctor defendants in relation to credibility. Indeed, the submission was made that he was not only unreliable, but "actually dishonest". He was extensively cross-examined about perceived discrepancies between the evidence he gave in the proceedings, and statements he had previously made. One example of the approach taken by counsel for the plaintiff was this. In his evidence, Dr Walsh said that, as part of his 10.10 pm - 10.15 pm examination, he had felt Mr Sherry's hands and feet. In interrogatories Dr Walsh was asked the following question: "31A. On each occasion when you saw the deceased, describe in full the time of the examinations (if any) and observations made of the deceased on each occasion?" 408 In a verified answer made on 21 May 2001, Dr Walsh said: "At about [10.15 pm] on 14 August Mr Sherry appeared to be in pain. He looked pale and sweaty. His observations were stable. His pulse rate was about 100. He could not adequately inhale or exhale in long slow breaths as requested due to pain. He had decreased air entry on the left." (emphasis in original)

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There was no reference in this answer to the physical examination of Mr Sherry's hands and feet that Dr Walsh claimed, in his evidence-in-chief, to have made. 409 Counsel for the plaintiff drew further support for their attack on Dr Walsh's credibility in this respect by reference to a statement of assumptions dated 17 August 2001 which had been prepared by the solicitors for the doctor defendants for the purpose of obtaining expert opinion evidence. Dr Walsh accepted, in cross-examination, that, so far as those assumptions related to anything said to have been done by him, he was the source of the information provided to the solicitors upon which the statement was based. 410 Paragraphs 97 - 99 of the statement are relevant to Dr Walsh's 10.15 pm examination of Mr Sherry. They included the observation that Mr Sherry looked pale and sweaty, that Dr Walsh checked the monitors and found the measurements to be stable and that an examination of Mr Sherry's chest proved difficult due to the severity of the pain but that there appeared to be decreased air entry on the left side; and that he was experiencing difficulty in breathing deeply. 411 Again, there was no reference in any of these paragraphs to an examination of the hands and feet or the results of any such examination. Dr Walsh was cross-examined about these omissions (from the interrogatory answers and the statement of assumptions) at some length. The explanation he gave (t 2979) was that, while the answer to the interrogatory was not complete, it was frank and that he had not been trying to deceive anybody. He said that he was not leaving information out on purpose but that the full weight and importance of the document (that is, the answers to interrogatories) were not something that he fully realised at the time. 412 Counsel for the plaintiff squarely put to Dr Walsh that his evidence about the hands and feet examination was false. Dr Walsh, not surprisingly, rejected that suggestion. 413 Associated with this criticism of Dr Walsh was a reference to his evidence that, when he observed Mr Sherry, he was pale and sweaty in the hands and face - a variation on an interrogatory answer that he was pale and sweaty (i.e. there was no suggestion then that the pallor and sweatiness was confined to the hands and face). The gloss placed on the interrogatory answer in oral evidence was, it was argued, an attempt to minimise inferences, of pallor and sweatiness, or that Mr Sherry's extremities were cold, indicating a lack of blood volume, that might otherwise be drawn. 414 Counsel submitted that the inference that Dr Walsh had fabricated this part of his evidence to tailor his evidence to fit with that of other experts is overwhelming. 415 While I do not accept that characterisation of the effect of the omission to make any reference, either in the assumptions, or in the answers to interrogatories, to the hands and feet examination, taken in conjunction with the assertions made in evidence, or the slight variations in Dr Walsh's descriptions of the extent of the observed pallor and sweatiness, I have found this issue troubling. The answer to the interrogatory is terse, if not taciturn. But, except for the reference to the hands and feet examination, it does appear to have incorporated, sometimes in summary form, everything else that Dr Walsh said he had observed. 416 In the end, and only after careful evaluation of all of the evidence and the competing arguments, I accept Dr Walsh's evidence. He described the hands and feet examination as being something that is done routinely with every patient and I think this may be the explanation for his omission to mention it in answer to the interrogatory. Accordingly, I reject this attack on Dr Walsh's credibility. 417 I will deal with two other aspects of the attack on Dr Walsh. In answer to another interrogatory Dr Walsh said: "34(b) ... I called Dr Wilson immediately after viewing the chest x-ray. He asked me to insert a chest drain. When the patient arrested at about [11.00 pm] I asked that Dr Wilson be contacted. Dr Wilson was already on his way to the ICU. I may have asked that the surgeon be rung as well." 418 In evidence-in-chief, Dr Walsh was asked what went through his mind after he had seen the 10.30 pm x-ray. He replied: " ... I went directly from the x-ray box to the patient to make sure that he was still well ... so I walked to the patient's room and checked on the patient, checked on the monitors ..." (t 2869 - 70) 419 He went on to give his description of Mr Sherry's appearance at that time. 420 In written submissions it was put that the answer to the interrogatory, that Dr Walsh had spoken to Dr Wilson immediately after reviewing the chest x-ray, was inconsistent with his evidence that his immediate response to seeing the x-ray was to check on Mr Sherry. It was put that: "The question asked in the interrogatory was quite clear, that is, what steps did he take upon reviewing the [chest x-ray ]." (emphasis added) 421 This is not a correct paraphrase of the question asked in the interrogatory. In the introductory words of the multi-faceted interrogatory, Dr Walsh was asked to state precisely what he did between ordering the x-ray and the arrival of Dr Marshman, and, in particular: "(b) Did you attempt to contact, or order that contact be made with, either [Dr Wilson or Dr Marshman]? If so, when, in what terms and what was the result of the contact (if any)?" 422 When the answer to the interrogatory of which complaint is now made is seen in the light of the specific question asked, the criticism can be seen as contrived. The answer given is a direct answer to the question asked. It may be, assuming that Dr Walsh did conduct his review of Mr Sherry, that some issue could be taken with the use of the word "immediately", but this is not a matter upon which I would make an adverse credibility judgment. 423 It was also put that the answer to interrogatory 31A made no reference to any observations made by Dr Walsh after reviewing the x-rays. I am in no position to judge the validity of this complaint. The interrogatory answers that were put in evidence were "truncated answers". Interrogatory 31A asks for information about "each occasion" on which Dr Walsh saw Mr Sherry, but only part of the answer (paragraph (b)) found its way into the evidence. 424 Another matter raised against Dr Walsh in relation to his credibility concerned his reasons for not performing percussion on Mr Sherry's chest at the 10.15 pm examination. In evidence-in-chief Dr Walsh said that this was because: "... percussion in this setting is a very unreliable tool. I would have expected that his base on the left side would be dull to percussion." (t 2860) 425 This was contrasted with paragraph 100 of the statement of assumptions (Exhibit 2D19), through which the experts qualified on behalf of the doctor defendants were asked to assume that the reason percussion had not been performed was: "... the added pain it would have caused and the outcome would not have altered the immediate management which was to order a chest x-ray."

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(In written submissions it was also put that the oral evidence given was inconsistent with answers given to interrogatories. However, this cannot be sustained when regard is had to those parts of the interrogatories that were tendered. Dr Walsh was there asked if he had percussed the chest, to which he replied in the negative. His reasons for not doing so were not explored in the tendered interrogatories.) 426 There is an inconsistency between what is contained in paragraph 100 of the statement of assumptions (which, admittedly, was derived from information provided to the solicitors by Dr Walsh) and his oral evidence. Dr Walsh's position did not improve when he was cross-examined about this. He said that the likelihood of causing pain was not "the major reason" for not performing percussion (t 2961); it appears, that, during this cross-examination, Dr Walsh was maintaining that the major reason was that which he had given in his evidence-in-chief, that is, the unreliability of the test as a diagnostic instrument. He sought to explain the absence of that reason from the statement of assumptions by contesting that, in paragraph 100, the unreliability of testing was omitted. He said that he believed the second half of the answer covered the issue - that is, that in saying that the outcome of percussion would not have altered the immediate management was, in effect, equivalent to saying that percussion was an unreliable tool. I cannot accept this explanation. I think it is correct that Dr Walsh has given two different explanations for his failure to perform percussion. They are not mutually inconsistent: both reasons could sit together, but that does not really assist Dr Walsh. There is some substance in this aspect of the criticism of Dr Walsh's reliability. 427 There were other matters put in criticism of Dr Walsh, said to be relevant to his credibility. One of these concerned a minor inconsistency about the timing of Dr Wilson's arrival vis-a-vis intubation. Given the dramatic situation that was unfolding, I do not find it at all surprising that one or other of the witnesses had a faulty recollection. It was not necessarily Dr Walsh. 428 Generally, and notwithstanding my concern about two aspects of his evidence, I find no real reason to doubt Dr Walsh's honesty in respect of the answers he gave. Naturally, as I have observed in relation to Drs Marshman and Wilson, I am conscious that Dr Walsh has a personal interest in the outcome of this litigation and that this may have some, conscious or unconscious, effect upon the evidence he gave, particularly upon the opinion evidence as to what the situation called for at any given time, but also upon the factual matters concerning Mr Sherry's observable condition at any given time. * * *

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adequacy of SAH staffing in ICU 430 Three documents indicating appropriate levels of service relevant to ICUs generally were tendered. These were:

Exhibit U: "Minimum Standards for Intensive Care Units" issued on 6 July 2004 by the Faculty of Intensive Care of the Australian and New Zealand College of Anaesthetists;
Exhibit GG: a similarly entitled document dated 1997 ("the Minimum Standards");
Exhibit VV: part of which is a document entitled "Guidelines for Intensive Care Units" issued in February 1997 by the Australian Council on Health Care Standards ("the Guidelines"). 431 Each of these documents recognised three levels of adult ICUs, the highest being a Level 3 unit. Some argument arose as to which category SAH's ICU properly falls into, and this is not easily resolved by reference to any of the documents. For example, Exhibit VV purports to define the three levels of ICUs, but what it in fact does is to define what is required of a facility of each level, without identifying what it is that causes it to be so categorised, or giving any defining criteria. However, another part of Exhibit VV was a form, entitled "Intensive Care Unit - Core Data Information", completed by Dr Heather Low, the Director of SAH's ICU, providing information to the Australian and New Zealand Intensive Care Society, the organisation apparently responsible for the preparation of the Guidelines. Dr Low there identified SAH's ICU as a Level 3 facility. 432 Exhibit VV described the nature of a Level 3 ICU as one which: "... must be a separate and self-contained facility in the hospital capable of providing complex, multi-system life support for an indefinite period . It must be a tertiary referral centre for intensive care patients and have extensive backup laboratory and clinical service facilities to support its tertiary referral role." (emphasis in original) 433 It described the "care practice" as one which: " ... must be capable of providing mechanical ventilation, extra-corporeal renal support services and invasive cardiovascular monitoring for an indefinite period . These types of facilities are illustrative of the nature of care provided in a level three intensive care unit but not exhaustive of all the possibilities." (emphasis in original) 434 Notwithstanding Dr Low's identification of SAH's ICU as Level 3, Professor Tatoulis was of the view that it was somewhere between a Level 1 and a Level 2 facility. He considered that a Level 3 ICU was something that: "... deals with heart transplants, major trauma, liver transplants, life circuitry assist devices, really high-tech heavy duty life-support.." (t 2144) 435 He said that SAH's ICU predominantly dealt with post-operative anaesthetic recovery in cardiac surgery. Professor Tatoulis even doubted that SAH's ICU would be classified as Level 2, appearing to prefer to rate it as Level 1. 436 The appropriate classification is of some significance. The Guidelines suggest that a Level 3 adult ICU be medically staffed by at least one specialist (presumably an intensivist) as well as: " ... at least one registered medical practitioner who is in the hospital predominantly present in the unit and exclusively rostered to the unit at all times." (italics in original)

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He insisted that the purpose of the documents was to set minimum standards for training purposes. He did acknowledge that, as a flow-on from its training purpose, the Faculty of Intensive Care was attempting to ensure uniformity of standards. 440 I see nothing in the documents, in either version, which suggests that it should be so limited. I do not accept that there is, or should be, any such limitation on the use of the Minimum Standards. 441 In their written submissions, counsel for SAH adverted to the evidence concerning the classification of SAH's ICU, describing it as "a great deal of distracting debate ...", and then referred to the evidence of Professor Tatoulis which I have extracted above. Interestingly, however, counsel stopped short of putting any submission that I should make a finding in accordance with Professor Tatoulis' opinion, as distinct from the classification claimed on behalf of the ICU by its Director, Dr Low. SAH did not offer any other evidence to contradict Dr Low's assessment. Dr Stow agreed with the classification of SAH's ICU as Level 3. 442 In my opinion that assessment should be accepted. That means that the Guidelines relevant to a Level 3 ICU are applicable. But, even if the ICU were to be classified as a Level 2 facility, both the Minimum Standards and the Guidelines would suggest that the ICU ought to have had dedicated medical coverage. 443 I will now deal with the evidence concerning the medical staff in SAH's ICU. In this respect there is no issue about the specialist cover - that is, the level of intensive care specialist medical cover. The only issue concerns the junior medical staffing, in this case represented by Dr Walsh. Dr Walsh's evidence was that in 1997 SAH was a hospital with somewhere in the vicinity of 350 beds. It had an Accident and Emergency Department, the ICU and a Coronary Care Unit, an Obstetric and Gynaecology Unit, general medical and surgical wards that involved cardiology, respiratory medicine, gastro-intestinal medicine, general surgery, orthopaedic surgery and various other sub-specialties such as ear, nose and throat, urology, a busy oncology unit and paediatrics. The ICU was a facility of 12 beds; adjacent to it was an eight-bed Coronary Care Unit. All facilities were housed in one building, of 12 levels, 10 of which were used for medical purposes. 444 Dr Walsh gave evidence of his duties in 1997. He said the Accident and Emergency Department had its own CMO, and that, otherwise, one CMO was rostered on duty in SAH at any one time. That CMO attended to the requirements of the whole of SAH, other than the Accident and Emergency Department. He or she worked on what Dr Walsh called "a trouble-shooting basis", being available on a pager to assist any patient in SAH about whom a nurse or visiting medical officer was concerned. The duties of a CMO included responding to problems, but also attending to more routine matters to do with medication and other treatment. The CMO was based in the ICU and coronary care area when not attending to other matters in other parts of SAH. However, Dr Walsh said, it was very uncommon, particularly in the early evening, for the CMO to be able to remain in the ICU. SAH was: "... very, very busy, particularly in the late afternoon through to the late evening." (t 2849) 445 Dr Walsh said it was not uncommon to receive at least 10 pages an hour requesting attendance on a ward. A patient in the ICU was always given priority unless there was something obviously more urgent in a ward. On occasion the CMO could be called on to help out in the Accident and Emergency Department, and this happened frequently in 1997. It was usual for the CMO to be able to return to the ICU in the late evening, that is, 11.00 pm or midnight, and sometimes later. 446 A CMO Duty Statement (part of Exhibit C9) declared that a CMO's primary responsibility was to the ICU and the Coronary Care Unit. The same document, under the heading "Priorities", and no doubt facetiously, advised that: "The workload at any one time fluctuates considerably. The demands on the CMO at times can be very stressful. These priorities will assist in managing the difficult job of being in two places at once!" 447 In cross-examination Dr Walsh was asked this question: "What I want to suggest to you is that, first, it was impossible for you, given that workload, to give adequate cover in the intensive care unit in 1997?" (t 2931)

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His answer was: "It was difficult, I wouldn't say impossible." (t 2931) 448 He acknowledged that there were times when he felt as though he needed to be in two places at once but added that, notwithstanding that, "we generally managed" (t 2931). Dr Walsh agreed that, because of the demands upon him elsewhere in SAH, he was highly dependent upon the competence of the nursing staff in the ICU and on their ability to make accurate observations of the patients; and that accurate assessment by the nurses was "critical" to adequate patient care on his part. 449 In 1997 CMOs worked 12 hour shifts, commencing at either 8.00 am or 8.00 pm, on Monday, Tuesday, Wednesday, Friday and Sunday; on Thursdays and Saturdays they worked 24 hour shifts (t 2847). On occasions, shifts were exchanged and, even on what would ordinarily be a 12 hour shift day, a CMO might work a 24 hour shift. This, in fact, is what occurred on 14 August 1997. Dr Walsh was not rostered for duty on that day but, in order to accommodate another doctor, he agreed to fill in for him. He commenced his shift at 8.00 am on that day. By 10.15 pm he had been on duty in excess of 14 hours. 450 Once a conclusion is reached (as it has been) that SAH's ICU was a Level 3 ICU, then the further conclusion that SAH failed to reach the standards set out in the Minimum Standards and Guidelines is inescapable. 451 SAH's response to these particulars of negligence and breach of contract depended largely upon the (undoubtedly correct) proposition that the Guidelines or Minimum Standards are not mandatory and that departure from them does not necessarily constitute negligence or breach of contract. Counsel referred to evidence given by Professor Tatoulis to the effect that the standards in Exhibit GG were, in broad terms, reasonable, but that, in some respects, the standards were controversial and "to some degree a wish list" (t 2132). 452 I accept that the standards are not absolute. They do, however, give guidance in the assessment of what is a reasonable level of medical cover in an ICU of the kind and size here under consideration. A finding that SAH failed to comply with the Guidelines or Minimum Standards is not necessarily a finding that it failed in its duty of care to Mr Sherry. 453 In his report Professor Tatoulis wrote: "It would be expected that the CMO spent most of his time in intensive care, however not exclusively so. This would be an appropriate and common practice in private hospitals in Australia at that time. The primary responsibility for care of patients would rest with the treating consultant specialist, and in the intensive care environment the primary responsibility would be shared between the consultant specialist under whose care the patient had been admitted into the hospital in the first place, and with the consultant Intensivist. In general the role of the CMO would be secondary, and in particular to facilitate the practical functioning of the hospital and including the intensive care. Tasks would normally include ordering investigations as directed by the consultant specialist, chasing up results of such investigations, writing up medication orders, communicating with consultant specialists that might be off campus and conveying reports of patient status, and in return organising treatments or investigations as may be indicated by a consultant off campus. Additionally such CMOs would be required to attend urgent or emergent problems experienced by inpatients in the hospital including episodes of instability in the intensive care unit." 454 Professor Tatoulis repeated this in his evidence, and drew a distinction between the roles of the CMO (or equivalent) in a private hospital and in a public hospital. The Guidelines and Minimum Standards themselves do not explicitly recognise any such distinction, and do not accommodate the different responsibilities that specialist medical practitioners may have in private hospitals. As to any such differences, the evidence was sparse. 455 Professor Hillman's approach was different. In cross-examination, he said that he had had a hand in creating Exhibit U, the 1994 Minimum Standards. He agreed that an appropriate level of staffing for ICUs was a dedicated intensivist during ordinary working hours, and dedicated CMO coverage after hours. He specifically agreed that this was an appropriate level of staffing for a hospital such as SAH. When an encapsulation of Dr Walsh's workload was put to him (the accuracy of which was not questioned) he agreed that that was outside the Guidelines for an ICU such as that at SAH. He agreed that, in the exercise of ordinary skill and care, a CMO in Dr Walsh's position would spend his time at least primarily in the ICU and he would not have expected him to have a practice of undertaking one evening round in the ICU and otherwise attending on request by the nursing staff. He did not regard the latter as consistent with ordinary skill and care. 456 In his report, Dr Stow described Dr Walsh's workload as excessive for one CMO. 457 He also wrote: "10.9 It is my opinion (in accordance with the guidelines of the Joint Faculty of Intensive Care) that a 12 bedded ICU routinely admitting patients following cardiac surgery should have, as an absolute minimum, a dedicated resident medical officer of appropriate experience present in the unit (or very close by) at all times. That CMO should not have responsibilities elsewhere in the hospital. 10.10 Intensive care is as much about patient surveillance and the detection of physiological abnormalities and complications of treatment or disease as it is about the provision of particular modes of treatment. The constant presence of vigilant, adequately trained medical and nursing staff is an integral part of this surveillance. A medical practitioner who makes infrequent and periodic visits to a patient within the intensive care unit, or who only visits when requested by a nurse, or who has a significant and excessive workload in the rest of the hospital, risks missing significant changes in the physiological parameters, signs and symptoms, and disease progression." 458 Dr Stow considered that even a Level 2 ICU required a dedicated medical officer exclusively rostered and immediately available to it (in addition to the intensive care specialist). 459 Dr Stow had been involved in the establishment of a Level 2 ICU in a Victorian hospital in late 1997 and 1998. He had considered it appropriate to staff that facility in accordance with the Guidelines. He also said: "The other obvious answer is that we firmly believe that it is an absolute requirement to have a medical officer exclusively rostered to an intensive care unit so that there are no conflicts in his ability to manage patients within that intensive care unit." (t 1265) 460 Counsel for SAH appeared, in their written submissions, to rely upon evidence that the Guidelines were not universally followed by hospitals other than SAH. For example, this submission was made: "Although proclaimed as 'minimum standards', it is clear on the evidence that these minimum standards were not routinely met in terms of CMO cover at hospitals (particularly private hospitals) in August 1997 ..."

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Reference was then made to the evidence of Professors Tatoulis, Hillman and Skowronski. 461 This, it seems to me, is irrelevant: see Rogers v Whitaker [1992] HCA 58; 175 CLR at p 497: see Francis & Ors v Lewis [2003] NSWCA 152, unreported, 19 June 2003. 462 While I accept that departure from the Minimum Standards or Guidelines does not necessarily entail a conclusion that the standard of care provided was inadequate, that conclusion cannot be escaped merely on the basis of evidence that other hospitals operated at a standard the same as or similar to that of SAH. The judgment has to be that of the court based upon the evidence of what constitutes an acceptable level of care. 463 The evidence of Professor Hillman and Dr Stow in this respect is convincing. The issue is not merely that Dr Walsh had duties outside the ICU. A judgment is to be made on the basis of the extent of the demands made upon him other than those made in and by the ICU. While one would not necessarily find that a modest level of demand outside the ICU necessarily amounted to a standard of care incompatible with acceptable practice, the question is to be determined by reference to the degree of departure from the Guidelines, an assessment of the workload of Dr Walsh, and its impact upon his capacity adequately to service ICU patients. 464 I am satisfied that what was required of Dr Walsh was, in all the circumstances, inconsistent with that which Mr Sherry was entitled to receive. To this point, the plaintiff's claim against SAH in this respect must be held to have been made out. 465 But that is not the end of this issue. There remains for determination the question of causation. Was the failure to provide adequate medical cover which I have found proved, causally related to a failure by Dr Walsh to observe the signs of the haemorrhage that led to Mr Sherry's death? Would Dr Walsh's continued presence in the ICU have made any difference? That is interlinked with other questions; questions concerning what the signs actually were, and what an ordinarily careful and competent medical practitioner in Dr Walsh's position (absent his duties in SAH outside the ICU) would have made of them. 466 I note in passing that Dr Walsh had been on duty in excess of 14 hours. He agreed in cross-examination that he may, by 10.15 pm, have been tired. Little was made of this, and, in the absence of more detailed evidence and argument, it should not be given too much weight. 467 It is to be remembered that Dr Walsh did not see Mr Sherry between the handover rounds at no later than 7.00 pm, and about 10.15 pm, when the nurse called him. He was busy in other parts of the hospital. There is no doubt that Dr Walsh attended promptly when called by the nurse. But it is of some interest to bear in mind what might reasonably be inferred would have been the circumstances, had SAH operated within the Minimum Standards or Guidelines. Dr Walsh would have been present in the ICU throughout. He would have been in a position to observe much more closely Mr Sherry's condition and progress, both by reference to the recorded signs and his own clinical observation. He would have been subject to less of the stress to which Dr Stow referred (t 1265). 468 Sustained personal observation and clinical monitoring by Dr Walsh of Mr Sherry's condition was not possible by reason of Dr Walsh's excessive duties. Had he been in a position to undertake that personal monitoring, it is, I have concluded, very likely that he would have observed the signs (even though they were "subtle") of his deterioration. He would have been present when the physiotherapist recorded the change in air entry on the left, and would have been readily available for consultation by her. He would, in all probability, have paid more attention to that change in condition. He may well, at that stage, have ordered an x-ray. In this respect the observations of the Sherry family earlier in the afternoon are apposite. In my opinion, Mr Sherry was gradually declining and this would have been more apparent to Dr Walsh had he been present to make personal observations. 469 In undertaking to provide hospital and medical care to Mr Sherry, SAH was under an obligation to staff the ICU at appropriate levels. It failed to do so. I find that there is a causal connection between SAH's failure adequately to staff the ICU and Mr Sherry's death. 470 I note the final aspect of SAH's submissions on this aspect of the plaintiff's claim. An extract from the submissions will suffice to make the point: "6. Implicit in this allegation of negligence being at all causally relevant is an assumption that exclusive rostering of one [CMO] to the ICU guarantees that he or she would have been available at every minute for Mr Sherry. This ignores the fact of other patients in the ICU and the normal responsibilities of an intensive care doctor on duty, that is, calls to arrests or emergencies in other parts of the hospital or, in some cases, to avert impending emergencies." 471 Theoretically, this may be correct. However, SAH called no evidence to establish that any such emergency arose, either in the ICU or elsewhere in SAH, during the evening of 14 August such that, even if Dr Walsh had been exclusively rostered to the ICU, he would or might not have been available for Mr Sherry. The submission, while theoretically correct, is irrelevant in the circumstances of this case and on the evidence before me. 472 Counsel for the plaintiff also sought to bring home SAH's inadequate staffing of the ICU to both Drs Wilson and Marshman. In written submissions, they argued: "H21. Dr Wilson should have been aware of the actual practice within the hospital, in particular in relation to the evenings and he should have taken some steps to ensure that the practice was changed bearing in mind his overall responsibility for patient care. It is a breach of duty on his part for allowing a departure in practice from the desire (sic) responsibilities for CMOs."

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and: "H30. The Court should infer that Dr Marshman would have acted reasonably if aware of the inadequate medical supervision provided during the evenings in the ICU. The appropriate step to take was to stop performing cardiac surgery at the SAH." 473 In respect of the submission concerning Dr Wilson, it is notable that nothing was advanced as to what "steps" he ought to have taken to ensure that the staffing practice was changed. What has been suggested, it seems, is that Dr Wilson ought to have taken it upon himself to require that SAH engage sufficient CMOs to bring it within Minimum Standards or Guidelines. The final sentence in the passage extracted above appears to suggest that Dr Wilson was under a duty to manage or supervise staffing levels of the ICU at SAH. 474 The assertion is untenable. It is conceivable that a hospital may be so badly managed that a medical practitioner is under a duty not to facilitate its further operation, and that to do so would be to participate in its maladministration, but that point is far from reached in this case. Dr Wilson's duties were those of an intensive care specialist. So far as the evidence goes he was entitled to rely upon SAH, as an apparently reputable and responsible hospital, to comply with its obligations and meet reasonable standards. There is no substance in the submission that he was responsible for SAH's departures from appropriate standards or its breaches of duty. 475 The same applies to Dr Marshman. Indeed, the submission in relation to Dr Marshman is not entirely easy to follow. It may be that it is properly characterised as an elaborate causation argument: that is, that, had Dr Marshman been aware of the failure of SAH to offer an adequate standard of care, then, acting reasonably, it would be expected that he would have withdrawn his services from SAH and Mr Sherry would not have undertaken the surgery there. However, it is unnecessary to deal with the argument. There was no reason shown in the evidence for Dr Marshman to have apprehended any failure on the part of SAH and certainly no reason shown why he ought to have withdrawn his services.

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failure to observe or act upon signs of blood loss 476 It is convenient to recapitulate some essential facts. 477 Apart from that aspect of the case against SAH with which I have already dealt, this was the substance of the case against all defendants. Dr Wilson, with Dr Walsh, saw Mr Sherry during the handover round at between 6.00 pm and 7.00 pm. Dr Marshman saw him at about 9.30 pm. Otherwise, Mr Sherry was not seen by any medical practitioner until 10.10 pm, when Dr Walsh was paged. 478 At between 6.00 pm and 7.00 pm, when Dr Walsh saw Mr Sherry in the company of Dr Wilson, he (Dr Walsh) was entitled to rely upon the seniority of Dr Wilson. If there were signs that ought then to have been observed, the responsibility for doing so lay with Dr Wilson. 479 Nor, in the circumstances of his engagement by SAH, can Dr Walsh be held accountable for failure to make observations of Mr Sherry between 7.00 pm and 10.10 pm. He was entitled, and indeed obliged, to rely upon the nursing and possibly physiotherapy staff to draw his attention to any sign requiring his attention. If there was any breach of duty by Dr Walsh it can only have been in what he did or did not do between 10.10 pm and 11.00 pm, when Dr Wilson arrived. 480 What Dr Walsh did at 10.10 pm was to order a chest x-ray. There is no doubt that this was correct but there is doubt as to whether it was sufficient. Dr Walsh misdiagnosed Mr Sherry's condition as a pneumothorax. Initially, there was no negligence in his doing so. However, he then left the ICU and went about his duties in other parts of SAH. This, it was contended, was, in the circumstances, negligent. Had Dr Walsh remained with Mr Sherry and examined him more comprehensively (particularly by percussing his chest) he would, on the probabilities, have become aware of the correct diagnosis. 481 Had Dr Walsh seen Mr Sherry at 8.00 pm, or indeed at any time prior to the apparent recovery of urine output at 9.00 pm, he may well have been alive to the possibility of hypovolaemia. By the time he did see Mr Sherry at 10.10 pm, the signs had become confused, because of the apparently spontaneous recovery in urine output. I have no doubt that that deflected attention from the concern that ought to have aroused had Mr Sherry been seen at 8.00 pm, or at any time between 7.00 pm and 9.00 pm. However, I am satisfied on the evidence that a more thorough assessment of the signs would have shown that the 9.00 pm and 10.00 pm urine output readings were insufficient to dispel the concern that ought to have been experienced as a result of the combination and accumulation of the readings. 482 Of course, the circumstances vary in relation to the different defendants; since it was not suggested that Dr Marshman ought (unless specifically requested by SAH or either Dr Walsh or Dr Wilson to do so) to have seen Mr Sherry prior to his 9.30 pm visit, an allegation of failure to observe or act upon relevant signs before 9.30 pm could not be levelled against him; nor was there criticism of his conduct when called to SAH at about 11.00 pm; it was his 9.30 pm observation that gave rise to the allegations against him. Similarly, it was not suggested that Dr Wilson ought to have seen Mr Sherry, other than as and when he did, at the evening handover round, and when called to SAH at about 10.45 pm. The allegations against him are that he failed to observe or act upon relevant signs at the handover round; and that, when telephoned by Dr Walsh, he failed to make adequate inquiries or give adequate instructions. The allegations against Dr Walsh were all concerned with his conduct at or after 10.10 pm.

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Existence of these signs ought to have alerted SAH staff to the need to investigate. Possible hypovolaemia ought to have been included as part of a differential diagnosis. 485 By 7.00 pm the signs were stronger: there had been a second hour of unacceptably low urine output, and the physiotherapist had recorded the new finding of decreased air entry to the left, as distinct from the right, lung. 486 By 8.00 pm there had been a further hour of unacceptably low urine output. 487 At any time to 9.00 pm the urine output readings alone were a cause of concern, and, taken in conjunction with the other readings, ought to have provoked investigation. 488 Some confusion occurred at 9.00 pm, with the apparent spontaneous resumption of acceptable urine output. This, on the plaintiff's case, was not sufficient to dispel the anxiety that ought to have existed by reason of the other signs. The recovery of urine output was possibly explicable by the consumption of fluid. Instead of investigating further, the apparent recovery of urine output gave rise to a false and unwarranted sense of security. 489 It was common for the defendants' witnesses to point out that none of the signs, in isolation, would have given cause for alarm. In response to that, it was acknowledged on behalf of the plaintiff that the signs were subtle: but, it was argued, taken in combination, they were present and readily observable to an intensive care nurse exercising reasonable care and skill. 490 The competing case, put on behalf of all defendants, was that no sign, taken in isolation, was of such magnitude as properly to give rise to concern. For example, the CVP, which was low, was (although barely) within normal limits; tachycardia and high temperatures are common in the aftermath of cardiac surgery, and, alone, also give no cause for alarm. Decreased air entry caused by collapse of the lung is another commonly seen consequence of cardiac surgery. A limited period of unacceptably low urine output calls for no more than observation and awareness and alertness. The apparently recovered urine output by 9.00 pm could properly dispel any concerns that might otherwise have been experienced. The fluid consumption, upon which the plaintiff's witnesses relied as explaining that apparent recovery, was not sufficient to do so; it was reasonable to conclude that urine output was back to an acceptable level. 491 Two difficulties, as I see it, lie in the way the defendants' experts put their case. Firstly, their invocation of the circumstance that any sign in isolation is insufficient to indicate hypovolaemia, is misplaced: the signs were not present in isolation, but in combination. Secondly, to the extent that the experts recognised and accepted that the readings and observations were consistent with hypovolaemia (they did this in varying degrees, the high point being Professor Skowronski) they advanced possible alternative explanations for those readings: for example, tachycardia may be caused by fever, reduced air entry commonly occurs following cardiac surgery. The argument appeared to be that, if an alternative explanation for any of the readings could, in retrospect, be found, then there was no need for investigation. This seems to me to overlook this: that the availability of one, benign, explanation for a potentially adverse sign does not necessarily exclude other, malign, possible explanations for that sign, or the need to exclude a possible malign explanation. 492 Merely that a sign might be attributable to a cause that does not call for intervention, does not, in my opinion, justify a failure to exclude causes that do call for intervention. Yet this was the theme that emerged repeatedly in the evidence of the defendants' experts. 493 There is a third matter relevant to this issue. There was, in fact, no evidence that the reason that no action was taken at any time before 10.10 pm was that any of the professionals involved was conscious of, and considered but excluded, the possibility of hypovolaemia, or any possible problem in Mr Sherry's recovery. This was largely because neither Dr Walsh nor Dr Wilson saw Mr Sherry during any relevant time (other than the evening handover round, when, even on the plaintiff's case, the signs would have been at their minimum) and none of the nursing staff gave evidence. 494 The conclusions I have reached are as follows:

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(iv) By 9.30 pm a further confusing element was introduced: while CVP, temperature, pulse rate and respiration rate remained steady, the urine output apparently returned to a satisfactory level. 495 The constancy of the readings, and the apparent recovery of the urine output had, in my opinion, the effect of disguising the seriousness of the signs. I accept that, ordinarily, the ICU Chart of a patient who was losing blood at the rate Mr Sherry was would show downward trends in CVP, blood pressure, and urine output, and upward trends in respiratory rate and oxygen saturation. A superficial glance at the ICU Chart would not show those trends. 496 But the phenomenon of compensation, as explained by Dr Stow and acknowledged by other experts, is well known. It seems to me that too much faith was placed in the graph system in the expectation that alterations in condition would thus manifest themselves; insufficient attention was paid to the actual readings themselves; and no attention at all was paid to the possibility of compensation as an explanation for the unsatisfactory readings. 497 Was there a point at which nursing staff, discharging their duty of care, ought to have alerted a medical practitioner? Up to 7.00 pm, it was reasonable for the nursing staff not to do so; Dr Wilson and Dr Walsh had only very recently made their own observations, apparently without any concern. That raises the question of whether a single new finding, of reduced air entry at 7.00 pm, and the second hour of oliguria, were of sufficient significance to warrant alerting a medical practitioner who had, only so recently, made his own observations. 498 After some hesitation, I have concluded that they ought to have done so. The proposition may be tested in this way: if SAH had employed a CMO solely dedicated to the ICU, it is, in my view, likely that his/her attention would have been drawn, either by the physiotherapist or the nursing staff, or in the conduct of his/her own routine examination, to this finding. One may speculate that the nursing staff forbore to worry Dr Walsh with unnecessary concerns, having regard to the extent of his duties elsewhere in SAH. But the fact that he was busy elsewhere does not impinge upon the duty of the nursing staff to notify him of significant changes in the condition of an ICU patient. I am of the view that, notwithstanding the extent of his duties elsewhere, the nursing staff ought to have advised him of the new finding. 499 By 8.00 pm, the third hour of oliguria ought to have caused concern in the nursing staff, again sufficient to alert Dr Walsh. 500 I am satisfied that, in failing to call Dr Walsh at any time between 7.00 pm and 9.00 pm, the nurses responsible failed in their duty to Mr Sherry. 501 There still remains the question of causation. What would Dr Walsh have done, if called at 7.00 pm or at any time thereafter until 9.00 pm? 502 This question becomes entwined with that concerning staffing levels: in the circumstances as they existed, Dr Walsh may or may not have himself recognised the signs which I have held the nurses ought to have recognised as of concern. But, if he had been exclusively rostered to duty in the ICU, I am satisfied that he would have made the relevant observations and taken the requisite action. Even in the actual circumstances of his employment, I think it more likely that, if he had been called and had his attention specifically directed to the reduced air entry, and, later, the third hour of oliguria, he would more probably than not have conducted a more searching examination. 503 A complication arises, so far as SAH is concerned, from 9.30 pm: that was when Dr Marshman conducted his examination. It is difficult to conclude that, at that time, or shortly after, the nurses should have raised concerns about Mr Sherry's condition, since Dr Marshman's examination had raised no such concerns. The nursing staff were then entitled to rely upon the superior position of Dr Marshman. Between 9.30 pm and 10.10 pm there appears to have been little change, such as to have triggered concern in the nursing staff. 504 Nevertheless, I have concluded that, up to 9.00 pm or 9.30 pm, the necessary level of vigilance was not exercised by the nursing staff.

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(v) that on his return to the ICU he misconstrued the chest x-ray. 506 In support of the first alleged breach, an elaborate argument, based upon asserted inconsistencies in and deductions from the evidence was mounted. I will encapsulate it as briefly as possible. Dr Walsh said (in evidence-in-chief, t 2863) that about fifteen minutes elapsed between his arrival in the ICU and his ordering the x-ray and Toradol. This was taken as meaning that his examination of Mr Sherry occupied that length of time. That could not be correct, so the argument ran, when regard is had to Dr Walsh's description of what the examination consisted of. 507 Further, the nurse's note of increased pain and the administration of morphine was timed at 10.10 pm, but the chest x-ray report is timed at 10.25 pm; indicating that the x-ray was ordered at some time prior to that, no later than 10.20 pm. That would leave no more than ten minutes for the examination. 508 I am unable to place a great deal of weight upon estimations of time, particularly in a situation as grave as this. Time is notoriously difficult to estimate, especially in retrospect, and witnesses frequently give time estimates that simply could not be correct. Here, Dr Walsh was asked, seven years after a dramatic and traumatic event, to estimate the time between two events - his arrival in the ICU and his ordering treatment and a test. I would not expect him to have focussed then on the time taken for the various things that were done and I would not expect him accurately to be able to recreate that. Of far more value is his account of what the examination consisted of. Even this, it can be seen from the evidence he gave, was not a mere recital of his examination, but incorporated the observations that resulted from that examination. I think it may well be that the examination took substantially less than fifteen minutes, but that of itself does not establish that it was inadequate. 509 On the other hand, Dr Walsh was under pressure, he had been on duty in excess of fourteen hours, and he was faced with an emergency and rather mysterious situation. If his workload meant that his judgment was affected (and it may well have been) that is not a failing to be brought home to him. 510 I am not satisfied that Dr Walsh did not perform an examination as he said he did. I do believe, however, that, in the emergency situation as it existed, he did not apply the depth of analysis to all of the records that he would have done had he not had duties elsewhere in SAH, or had he been notified sooner of the anomalies in Mr Sherry's condition. 511 I have not to date explored the various views expressed by the experts as to the value of the test of percussion. Professor Tatoulis described it as: "... a physical sign created by placing usually the middle finger over the chest and then tapping with the finger, middle or index finger, of the other hand."

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He thought that it was sometimes a useful test in clinical practice, but with the disadvantage of being very subjective and difficult to interpret, one that even very experienced clinicians have difficulty with. He thought that the dependence in clinical practice, particularly in cardio-thoracic surgery, on objective tests such as x-rays, CT scans and ultrasounds was more beneficial than reliance on percussion. However, in cross-examination, he agreed that a percussion test could diagnose a pneumothorax because the sound produced is a hollow one. 512 Dr Wilson agreed that the test is subjective, and subject to variable skill levels. He said that it does not give "actionable information". Like Professor Tatoulis, he thought that it had been superseded by radiological tests and he described it as "a diminishing facility". In cross-examination he gave a long answer, suggesting that, in Mr Sherry's particular circumstances, a percussion test may have produced confusing and conflicting information. 513 Professor Hillman also thought that percussion is a less accurate indicator, but, nevertheless, could have provided information. He agreed that it is the most important way of distinguishing between a pneumothorax and haemothorax. Nevertheless, he would have preferred to wait for the x-ray. He, too, observed that percussion is rarely done and is subjective. 514 Dr Stow was firmly of the view that, at the 10.15 pm examination by Dr Walsh, percussion should have been performed. He did not agree that it is a rarely used test and said that a good examination of the chest involves percussion. Different sounds are produced where a pneumothorax is present from those produced where a haemothorax is present. 515 Analysis of the above views is not easy. A common element is that, subject to the skill of the doctor using the test, it has the potential to identify the nature of a recognised chest problem - that is, whether it is a pneumothorax or a haemothorax. The use of percussion does not obviate the need for an x-ray, but, in this case, it could have diverted Dr Walsh from his focus upon a potential pneumothorax and turned his attention to the possibility of a haemothorax. Had that occurred, he would, almost certainly, have taken a different course. 516 The other thing to observe about percussion is, as I have mentioned before, that it is exceedingly quick, exceedingly simple, and requires no specialised equipment. 517 I have come to the view that Dr Walsh's omission to percuss the chest was a tragic mistake, indicative of a less than acceptable level of care. This is, in part, because percussion is such a simple and rapid test, potentially yielding valuable information. 518 The next breach alleged against Dr Walsh is the omission to give fluid at 10.15 pm, following examination. This cannot be considered in isolation. Based on the signs as interpreted by Dr Walsh at the time, fluid administration was not an urgent priority. However, based on the signs as later interpreted by Mr Glenville and Dr Stow, it was. Thus, this question really depends, not upon what, objectively speaking and in the light of the knowledge of later events and the luxury of a three month examination of the ICU Chart and Progress Notes, Dr Walsh ought to have done at 10.15 pm, but what he ought, acting reasonably, to have made of those signs when he saw them at 10.15 pm. I have regretfully come to the conclusion that Dr Walsh ought to have recognised the possibility of haemothorax as well as pneumothorax: that, had he included haemothorax as part of his differential diagnosis, he would have percussed; that that test would, in all probability, have moved him in the direction of a diagnosis of haemothorax; and he would have administered fluid. Certainly he would have prepared to insert chest drains. Probably he would have remained with Mr Sherry. He would have been in a position to administer fluid, and would have done so. Thus, by a complex series of connected findings, I conclude that, at 10.15 pm or soon thereafter, Dr Walsh ought to have administered some fluid, but this is because of what he ought to have made of the signs. His failure properly to recognise the signs was a breach of his duty to Mr Sherry. 519 I think it was a mistake, also, for Dr Walsh to leave the ICU when he did. There was no evidence of any other emergency situation in SAH at the time, which required his attention more urgently than Mr Sherry. It was, in my opinion, an error of judgment, in breach of his duty to Mr Sherry, to leave before the chest x-ray was available. Whether that error had any causative effect is a difficult question to be considered below. Further, it was an error on Dr Walsh's part not to ask the nurses to prepare to insert chest drains after his 10.15 pm examination. Even on the diagnosis of pneumothorax, chest drains would have been required. At the tragic conclusion of these events, the nurses were in the process of preparing the drains. Had they been prepared earlier, minutes would have been saved. 520 Although the allegation of breaches of duty against Dr Walsh have been particularised in such a way as to create the impression of a series of mistakes, the truth is that they all stem from one error: the failure to recognise the serious condition to which Mr Sherry had sunk. It was that that caused Dr Walsh not to percuss his chest; not to give fluid; to leave the ICU; to defer giving instructions to prepare the chest drains. 521 It was also put that Dr Walsh misconstrued the x-ray, causing him to misdiagnose. It is only necessary to note that I have reread the extensive cross-examination of Dr Walsh on this topic, and I am satisfied that he satisfactorily answered what was put to him. In any event, misconstruction of an x-ray is not necessarily negligent, and there is no other evidence that no reasonable practitioner in Dr Walsh's position could so have read the x-ray. Accordingly, I reject this alleged breach of duty.

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Dr Wilson 522 The case, as it was ultimately put against Dr Wilson, was very limited indeed. It had, at most, two branches. I put it that way because it is not at all easy to see what is encompassed in the first. In oral submissions senior counsel for the plaintiff said: "There is a section S in our [written] submission that deals with the position of the handover. That is at 6.00 pm. That, in effect, deals with what we wish to say about Dr Wilson and his liability there. I have said already that if he was on duty then, he should have been aware of the symptoms and authorised examination at 6.00 pm." 523 In section S of the written submissions reference was made to a number of factual matters and some evidence, particularly evidence given by Dr Wilson, which was, in two respects, the subject of challenge (S6, S8). I have to assume that what counsel was seeking to make of the 6.00 pm - 7.00 pm handover was that Dr Wilson, in breach of his duty, failed adequately to examine Mr Sherry and the information recorded on the ICU Chart; that if he had adequately conducted such an examination, he would have been aware of a developing problem and acted differently. However, how he would have acted differently is left to inference. I take it also that it was intended to assert that Dr Wilson would, at that time, have alerted Dr Walsh or the nursing staff to the need for greater vigilance and of the potential of then worrying signs. 524 In my opinion, the most that could be said about what could be observed by 7.00 pm was that the signs called for vigilance. I do not think it was necessary for Dr Wilson to draw Dr Walsh's attention to the need to be aware of Mr Sherry's condition, or of the implications of any adverse signs. 525 There was no evidence on which it could be inferred that Dr Wilson's duty extended to explicitly advising the nursing staff to that effect. 526 I have concluded that, although by the time of the handover round, Mr Sherry's haemorrhage was well under way, and the early signs of it could be seen, what was observable before 7.00 pm was not such as to call for any specific action on the part of Dr Wilson. 527 In coming to this view, the only thing that has given me pause is the observations of the Sherry family in the preceding hour. There is nothing to suggest that Dr Wilson had made observations of that kind, as, perhaps, one might have expected, given the emphasis that was, from time to time in the evidence, placed upon clinical observation. However, this is not enough, in my opinion, to fix Dr Wilson with any liability for his conduct at the time of the handover round. 528 The second branch of the plaintiff's case against Dr Wilson is directed to his responses to Dr Walsh when he was telephoned at about 10.45 pm. The complaint that was here made was that Dr Wilson failed to ask enough, or the right, questions. It was, it was submitted, inadequate to ask if Mr Sherry were then haemodynamically stable; more detailed information was required. Further, it was submitted, had he elicited adequate information from Dr Walsh, he would then have instructed Dr Walsh to administer fluid. 529 A number of answers may be made to these propositions. Firstly, it is obvious that, for every additional question asked by Dr Wilson on the telephone, a further delay was entailed in his leaving home and arriving at the hospital. Secondly, Dr Wilson was entitled to rely upon Dr Walsh to convey the important information. (In saying this I do not mean to imply that Dr Walsh failed to convey any important information of which he was aware.) 530 I am quite unable to see that the evidence establishes that Dr Wilson acted otherwise than properly, and in accordance with the standards expected of an intensive care physician exercising due care and skill. I propose to dismiss the statement of claim so far as he is concerned.

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Dr Marshman 531 I begin by noting that I have found the claims against Dr Marshman the most difficult to determine. For that reason, at the risk of repetition, I propose to refer again to what is alleged against him, and to the evidence concerning what he did, what he observed, and when. 532 The plaintiff's case against Dr Marshman hinges upon his 9.30 pm examination. Put simply, the plaintiff alleges that, at that time, the signs of hypovolaemia were present and ought to have been observed by him had he exercised reasonable care and skill in his examination. The position was really very similar to the position that appertained half an hour earlier, at 9.00 pm, and different only in one respect to the position that appertained at 8.00 pm. By 9.00 pm all the signs indicating hypovolaemia were present except for the one hour of apparently recovered urine output. I do not think that this was, in the circumstances, sufficient to allay the suspicion that ought to have been experienced by Dr Marshman. There are explanations proffered for the apparent but illusory recovery, and, although these explanations were not accepted by all experts, they are available for consideration: that is, the fact that there may have been some explanation for the apparent recovery in urine output other than the absence of hypovolaemia means that enquiries ought to have been pursued. Mr Sherry was not conforming to the Clinical Path. I have concluded that, in this case also, the failure to recognise the signs amounted to a failure of duty. 533 It was submitted that what Dr Marshman did at 9.30 pm "did not amount to an examination at all". I reject this. Dr Marshman's account of his 9.30 pm examination is comprehensive and is summarised earlier in these reasons. He did not use a stethoscope to listen to Mr Sherry's heart or chest sounds, nor did he use the percussion test. He disagreed (without expansion) with the proposition that he ought to have percussed; and he said that, on observation, Mr Sherry had very good chest expansion, indicating adequate inspiration and expiration (t 3489). 534 Both Dr Stow and Mr Glenville were of the view that percussion and auscultation were required tests in the circumstances. For the same reasons I have given in relation to Dr Walsh's failure to percuss Mr Sherry's chest - that the tests are simple and quick and yield valuable information - I have come to the view that Dr Marshman ought, at 9.30 pm, to have used both tests. Had he done so he would have been alerted to the presence of, by then, a large quantity of fluid in Mr Sherry's chest. 535 Accordingly, I have concluded that Dr Marshman failed in his duty to Mr Sherry.

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(ii) that SAH is vicariously liable for any negligent acts or omissions of:

nursing staff
physiotherapy staff
Dr Wilson
Dr Walsh. 537 In written submissions, however, this was not fully pursued. The submission was made that SAH is vicariously liable for the acts and omissions of nursing staff and physiotherapy staff (written submissions, paragraph B9. As to this there is no contest.) 538 The next paragraph in the written submissions is as follows: "B10 In addition to being liable for the negligent acts and omissions of its employees who treated Mr Sherry the SAH is also liable for the negligent acts and omissions of Dr Wilson and Dr Walsh because it owed Mr Sherry a non-delegable duty of care." 539 The submissions which followed were all directed to the concept of a non-delegable duty of care. 540 I take this to mean that the plaintiff no longer relies upon the pleading that SAH has any vicarious liability for any negligent acts or omissions of either of the named doctor defendants. That relieves me of the obligation to consider and determine whether SAH did have any such obligation under the doctrine of vicarious liability as distinct from the doctrine of non-delegable duty of care. Since it will not be possible finally to dispose of the matter without having further argument, if my perception in that respect is incorrect, it can readily be corrected. I will make no final finding on this issue. Generally speaking, an employer will be vicariously liable for the wrongs of an employee; a principal will not be vicariously liable for the wrongs of an independent contractor: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21. That distinction can give rise to a digression into whether the relationship between the parties is that of employer/employee or principal/independent contractor, as occurred in Hollis. In evidence was Dr Wilson's contract of engagement with SAH. A similar document, between Dr Walsh and SAH, could not be located. 541 There is reason, in Dr Wilson's contract, to conclude that the arrangement be had with SAH was as an independent contractor. However, having regard to the conclusions I have reached with respect to his liability, it is unnecessary to reach a final view about that. 542 Dr Walsh's position is less clear. I think, on the limited evidence available, that he probably was an employee, for whose acts or omissions SAH is vicariously liable. However, again having regard to the conclusions I have reached about SAH's non-delegable duty of care, it is also unnecessary to reach a final view on that question. 543 The written submissions filed on behalf of SAH focus upon the question of vicarious liability for the doctors. Nowhere, as I interpret the written submissions (and the oral submissions), was it disputed that SAH owed Mr Sherry a duty of care, nor that the duty of care was a non-delegable one. What was in issue was the scope and extent of the duty of care. In this respect an elaborate, but plainly fallacious, argument was constructed. It may be summarised as follows:

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SAH was in a contractual relationship with Mr Sherry. The terms of the contract were not, in any formal way, reduced to writing: the contract was, at best, an oral contract the terms of which have to be implied from the conduct of the parties, and (I would add) from longstanding practice in the administration of medical services. The only terms which ought to be implied into the contract are these: "- that the SAH was lawfully entitled to operate the hospital including the provision of care in an ICU;

that such services that were provided were provided with due care and skill [see s74(1) of the Trade Practices Act 1974];
that the equipment which was provided would be in a reasonable state of repair and would be capable of operation as intended." 544 However, it was further submitted that Mr Sherry ought to be taken to have contracted with SAH for provision of services by SAH of the kind and the standard actually proffered. I will make that a little clearer. The argument was that Mr Sherry contracted to receive care and treatment from SAH which included, for example, an ICU with the staffing levels actually in existence. Whether or not those staffing levels were adequate for the due provision of medical services (such as might, apart from the contract, make SAH liable in tort) Mr Sherry had contracted for medical services less than the exercise of due care and skill would require. (As I suggested to senior counsel when this argument was presented orally, this seems to me to amount to a submission that SAH contracted out of its obligation to exercise due care and skill in the provision of medical services to Mr Sherry.) 545 The argument then proceeded that, if Mr Sherry and SAH had contracted for the provision by SAH to Mr Sherry of services of a less than adequate standard, then SAH's liability in tort could not be greater than its liability in contract. 546 Indeed, one of the written submissions was in the following terms: " ... it is quite clear that for many years prior to 1997, [SAH] operated with a CMO available, not exclusively but with priority to the patients in the ICU, just as it did during Mr Sherry's admission there. There is nothing in the relationship between the parties or arising from the express terms of the contract which would enable the court to imply a term which required a different staffing procedure for SAH as regards the CMO. In part, that is because in the bargain entered into between the late Mr Sherry and SAH, the fees set by the SAH may be taken to reflect the cost of the provision of the services. If a term could be implied that services of a higher level ought to be supplied, a search needs to be undertaken to find within the negotiations leading to the contract a basis for the implication of a higher service level in the care provided to the late Mr Sherry than that provided by SAH as part of its standard practice." 547 A little later, the following submission was made: "- Mr Sherry certainly made no specific request for an additional service level to be provided but instead, it ought be inferred was content to accept the service level, which existed [at SAH]" 548 The argument is untenable; and, in part, is answered by SAH's own concession that a term ought to be implied into the contract that the services it provided to Mr Sherry would be provided with due care and skill. If it be the case (as I have found) that the level of services was not such as to enable the CMO to devote the requisite care and skill to Mr Sherry, then the term SAH proposes as one of the implied terms has not been fulfilled. There is no reason to hold that Mr Sherry, by impliedly accepting services at the level customarily provided by SAH, voluntarily accepted something less that that to which he would otherwise be entitled. There are many reasons why the argument is unsound. There is no reason to believe that Mr Sherry had any knowledge either of the roster organised at SAH, or the Guidelines or Minimum Standards. A similar argument could be made in relation to every claim brought by a passenger in a motor vehicle: that is, that he/she agreed to the level of skill and competence possessed by the driver of the vehicle, thus contracting out of the externally imposed duty of care. 549 I am satisfied that SAH owed a non-delegable duty of care to Mr Sherry. What is encompassed in that duty of care is the next question. That, so far as Dr Walsh is concerned, involved some consideration of Dr Walsh's relationship with SAH and with Mr Sherry. Dr Walsh's relationship with Mr Sherry may be contrasted with that of Dr Marshman. Dr Marshman was engaged by Mr Sherry himself for the purposes of the surgery; SAH became involved because Dr Marshman made the necessary arrangements for Mr Sherry to be admitted and there to undertake the surgery. That is why, no doubt, on the authority of Ellis, it was not argued on behalf of the plaintiff that SAH owed a non-delegable duty of care to Mr Sherry which made it liable for any wrongs of Dr Marshman. 550 That position, however, does not pertain in respect of Dr Walsh. Whether the relationship with Dr Walsh and SAH was that of an employee and employer, or independent contractor and principal, does not seem to me to matter in the context of this determination. It was SAH who engaged Dr Walsh; it was SAH who paid Dr Walsh; it was SAH who rostered Dr Walsh on duty; while, obviously, Dr Walsh had a great deal of independence in respect to the treatment he administered to individual patients, he was subject to the direction of SAH in certain important respects: for example, in being responsible for CMO duties in the whole of SAH; in being required to allocate first priority to the ICU; and in being required to be available, if called upon, for the Accident and Emergency Department. Dr Walsh was, properly speaking, one of many agents of SAH (along with nursing staff, physiotherapists, and, no doubt, cleaning staff, nurses' aides, pharmacists, laboratory technicians, radiographers and probably many others) to enable SAH to provide the services it had contracted and undertaken to provide. 551 Also relevant is the arrangement between SAH and Mr Sherry. That was that Mr Sherry would be admitted to SAH; SAH would provide him with all necessary medical services (other than those of the surgeon, with whom a separate arrangement was made by Mr Sherry); Mr Sherry had no input into the identity of the CMO who would be undertaking his care while he remained an inpatient; Mr Sherry had no input into the extent to which Dr Walsh would be available for his care. 552 Accordingly, I am satisfied that the non-delegable duty owed by SAH to Mr Sherry incorporated liability for any negligent acts or omissions of Dr Walsh. * * * 553 There are many reasons why this judgment has been exceptionally difficult. Quite apart from the detail of the medical material there has been a consciousness of the high stakes involved for each of the parties. I have striven to exclude those from my mind, and, indeed, this has been made easier by the circumstance that the considerations on each side are evenly balanced. What I have found is that SAH, Dr Walsh and Dr Marshman in their own ways did not, on this occasion, achieve the level of service our high standards of medical practice demand. This involves no judgment of moral culpability, and no judgment as to the general competence or attention to detail of any of the participants. This was a singular occurrence and should not be taken as typical of the standard of work of any of them. In each case the finding of breach of duty is at what may be termed a relatively low level. The degree of breach of duty is not quantitatively related to its consequences. Just as a momentary lapse of attention by the driver of a motor vehicle might have disastrous consequences, so also might - and has - a short term lapse of attention by doctors and nurses. In this case the consequences are tragically disproportionate to the level of breaches of duty I have found. Compensation is, however, not measured by the degree of the breach of duty, but by consequences. The tragic outcome should not overshadow an appreciation of what it was that went wrong. 554 When a duty of care is owed by one person to another, our system properly sets high standards. That standard is no higher and no lower when the person who owes the duty is a medical practitioner. When the person who owes the duty is a medical practitioner, the standard imposed is that of the ordinary competent medical practitioner (of that specialty or category) exercising ordinary skill and care. While, in a profession that depends upon the performance of duties by individuals, it is inevitable that human error will, on occasions, intrude, the standard of care to which any individual patient is entitled to expect does not vary and does not take into account the reality that such breaches will, from time to time, occur. 555 It is, probably strictly unnecessary to take this question any further. However, in my opinion, an examination of what went wrong on this occasion suggests that each individual placed excessive reliance upon the assumed observations of others. Thus, Dr Walsh was obliged, by reason of the extent of his duties elsewhere, to rely upon the nursing staff; Dr Marshman probably relied upon the nursing staff and on Dr Walsh to notify him of any growing concern about Mr Sherry's condition. The nursing staff relied upon the medical practitioners to alert them to any problem issues. Thus, no individual gave the degree of attention or analysis to the readings, or to Mr Sherry's observable physical condition, that he or she might have done in the absence of their reliance upon others.

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Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1. See also RTA v Cremona [2001] NSWCA 338, unreported, 16 November 2001 at [43], citing Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 in the following terms: "All that means is this; that you seek to reach a value for benefits which the deceased would probably have applied for the maintenance of his wife and family if he had not been killed. But, in the absence of special provision, you also have to set off against that any payments or benefits which, because of the death, are received by the wife or family." 557 Just what pecuniary benefits the plaintiff and her children would reasonably have expected of Mr Sherry had he not died was the subject of a great deal of evidence and is not easy to determine. 558 I will begin with some further reference to the evidence, sometimes, for convenience, repeating what appears earlier in these reasons. 559 Mr Sherry was born in Zimbabwe on 21 March 1951. He and the plaintiff were married on 8 March 1975. Their children were born on 16 October 1978, 25 June 1980 and 28 January 1982. In Zimbabwe Mr Sherry was a senior patrol officer in the Police Force. The family migrated to Australia in August 1983. Mr Sherry was then 32 years of age. Because of restrictions on what they were permitted to export from Zimbabwe, on arrival they had very little in the way of possessions or material wealth. Mr Sherry was a very ambitious and hard-working, some might even say driven, man. From the time of the family's arrival in Australia it was Mr Sherry's ambition to have his own commercial property management company. On arrival in Australia Mr Sherry took up employment with the NSW Retirement Board as a property officer. He supplemented his income by delivering newspapers in the early mornings. He enrolled in a TAFE property valuation course and subsequently gained a post-graduate qualification in urban estate management. He began, but did not complete, a degree in land economics. Later, he obtained a licence in real estate. After about six months at the Retirement Board he joined Colonial Mutual as a senior property manager, and about six months later he was promoted to State Property Manager. He remained in that position until December 1998, when he moved to employment with the State Superannuation Board of NSW ("the SSB"), initially as Manager in charge of the Property Management Section. In early 1990 he was promoted to General Manager of the Property Investment area. 560 In September 1993 he resigned from the SSB. This was because of conflict with his immediate supervisor. He and the plaintiff established a business under the name of Tim Sherry Property Services Pty Ltd. This was a consulting business providing advice to large property owners of commercial properties in NSW and Victoria. Although the plaintiff was a director of the company, her role was limited to that of a personal assistant to her husband, undertaking the book keeping work. All of the income producing work was done by Mr Sherry. The company operated from the family home, which by then was in Frenchs Forest. By 1996, clients of the company included both State and Commonwealth agencies. The business was successful and lucrative. It involved an amount of interstate travel on Mr Sherry's part. 561 Mr Sherry and the plaintiff had discussed their ambitions for the business. They intended to expand it to become a combined consultancy and property management company. With this in mind, in late 1995 or early 1996 Mr Sherry investigated office accommodation in North Sydney. From 1994 he had detailed discussions with his accountant, Mr Richard Fitzpatrick. He made plain to Mr Fitzpatrick that his plan was to establish "a property management operation" in commercial and industrial real estate. His abiding interest was in efficient and effective property management. In 1996 he developed a Business Plan (Exhibit E) representing his aspirations for the next stage of the development of the business. In the Business Plan he examined business opportunities in the real estate market. He proposed that the company (Tim Sherry Property Services Pty Ltd) would go into business in two phases of service delivery, the first phase being in consultancy services, and the second in property management. He envisaged that the property management part of the business would be confined to management of large commercial properties, preferably what were known as "A and B grade" buildings. He proposed to involve an additional person in this venture. 562 Phase 1, the consultancy service phase, would operate in three disciplines: portfolio management, asset management, and property management. Essentially what Mr Sherry here envisaged appears to have been the provision of a service incorporating comprehensive examination and analysis of the manner in which properties were managed, and of advice as to more effective ways of achieving maximum results of property investment for owners, and training of staff. 563 Phase 2 of the Business Plan envisaged the implementation of a section of the company that actually provided the services in the same three areas, portfolio, asset and property management. 564 In section 2 of the Business Plan Mr Sherry outlined the structure and the organisation of the company he proposed to incorporate to deliver the services. At some stage the company changed its name to Sherry Property Management Pty Ltd. 565 In section 3 of the Business Plan Mr Sherry dealt with the capital that would be required for its implementation, income/expenditure budget, and projected fees. In section 4 he considered market studies and in section 5 the experience required in the personnel he anticipated would need to be engaged. Mr Sherry discussed his plans with the company accountant. Phase 1 was not expected to require any injection of extra capital. Phase 2, it was expected, would require money to be raised and this could have been achieved by a mortgage over the family home. The plaintiff had reservations about the risk that this would have involved. 566 Phase 1 of the Business Plan was well under way at the time of Mr Sherry's death. Nothing concrete had been done to implement Phase 2, although he had had discussions with at least two individuals, to be mentioned below, in anticipation of its implementation. 567 At about the time Mr Sherry was formulating his Business Plan, a major city building was about to be developed by companies associated with an entity known as the Grocon Group of companies. (For the purpose of this judgment it will be sufficient to refer to any of the Grocon companies, and to the group, as "Grocon".) This was the building at No 1 Martin Place, Sydney, the old General Post Office. Mr Sherry nurtured ambitions to manage this property. If those ambitions had come to fruition, he would have launched Phase 2 of the Business Plan. He had a meeting with representatives of Grocon, with a view to contracting to manage the property. So far had the discussions gone that a meeting was arranged for the finalisation of the agreements and the signing of contracts. In Exhibit F can be found letters to the family owners of Grocon, concerning the proposal. The arranged meeting did in fact take place but, as one of the Grocon representatives was ill, contracts were not signed. This occurred at a time shortly before Mr Sherry's admission to SAH, and it was anticipated that, on his discharge, the arrangements would be completed. It was Mr Sherry's intention that he would take a partner, Mr Thomas Huolahan, who would have undertaken the role of General Manager of that building. It was envisaged that Mr Sherry would continue with his consultancy work and oversee the property management. According to Mr Huolahan (Exhibit X), salaries and fees (as set out in Exhibit F) had been agreed. 568 Had this arrangement proceeded, it would have represented a very valuable contract, and a significant boost for the company's business. 569 As an alternative to his property management ambitions, Mr Sherry had formulated a "Plan B". This was against the possibility that the property management business, for some reason, did not go ahead. Mr Sherry envisaged that, in that circumstance, he would work again in the industry as an employee of a large corporation. 570 Mr Sherry became active in professional associations concerned with property and property management. Having arrived in Australia virtually without assets, by the time of his death the family had acquired assets which included their home and an investment property, to the value of approximately $1 million. 571 At the time of the hearing the children were, respectively, 25, 24 and 22 years of age. The second child, Ryan, suffers from a mild degree of cerebral palsy. Mr Sherry devoted a considerable amount of time, over and above that which he gave to the other children, and over and above that which would ordinarily be involved in the discharge of parental duties, to Ryan. The various tasks he undertook extended from helping him with his meals, to athletics training (Ryan was an ambitious Paralympic track runner) to homework (acting as his scribe for the subjects for which Ryan could not use a computer). He had considerable parental involvement with the other children. For example, he regularly ran with his daughter Leigh Anne. He himself was committed to a strenuous exercise regime. He ran for about 45 minutes on most weekday mornings, and up to two hours on weekend mornings. On his arrival in Australia he gave up smoking. He maintained a healthy diet. He later took up golf, which he played regularly on Sundays. He was actively involved in the Cerebral Palsy Sporting Association. 572 He maintained the house, garden and swimming pool. He undertook some large tasks, such as paving, and painting (t 130). Generally speaking, the plaintiff managed the household and household finances. There was a fairly conventional division of duties between the two. 573 By the time of the hearing, all three children were in employment. Leigh Anne Sherry holds a Bachelor of Applied Science and works as a fitness instructor, and lives at home. Shortly after his father's death, Ryan abandoned his competitive sporting activities, but was awarded a traineeship at the Sydney Academy of Sport, and from 2000 has been working full time with the Academy (t 175). He owns and drives a manual vehicle. He also continues to live at home and contributes, as he is able, to the household and outdoor chores. In order to accommodate his physical disabilities, he requires about three to four hours per week by way of personal assistance and attention. 574 The youngest child, Matthew, has graduated with distinction in Commerce and had full time work as an analyst with a large accounting firm. He was about to embark upon training as a helicopter pilot. He also lives at home and helps around the house. 575 There was a great deal of evidence about Mr Sherry's competence, drive, ambition and diligence. He was obviously a man driven by a desire to succeed financially and to develop a successful, profitable and respected business. So much is, I think, not in dispute. Certainly, the evidence was uncontradicted, compelling and uniform. It was the tenor of evidence given by all witnesses who had known or worked with Mr Sherry. At the same time, he was a devoted and committed family man, who made a great deal of time available, especially for his children, and in particular for Ryan.

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Mr Sherry's likely career path 576 The starting point in the assessment of damages is the determination of the likely course Mr Sherry's career would have taken had he survived. Because he was, in a sense, at the time of his death in a state of transition, that is no easy task. Some useful guidance is to be obtained from the decision of the Court of Appeal in Norris v Blake [No 2] (1997) 41 NSWLR 49. That was a case involving a plaintiff who, although catastrophically injured, survived. His earning capacity was entirely destroyed. He was very young at the time of his injury, but was shown to have had, pre-injury, an extremely promising future as an actor. The problem faced by the court at first instance, and on appeal, was to assess the value of his lost earning capacity given that his injury had occurred at an early stage of his career, and his potential had not translated into concrete earnings. In some respects, therefore, the exercise undertaken by the Court of Appeal in Norris was similar to the exercise that I must undertake. That is because, like the plaintiff in Norris, Mr Sherry is shown to have had a significant earning capacity, and a promising career in front of him. He would, I am satisfied, have fully exercised his considerable earning capacity and achieved significant financial rewards. As in Norris, however, the exercise of the earning capacity was cut off at a time before any pattern of actual earning had been established. It is not possible, therefore, to point to the income which his earning capacity was, prior to his death, yielding, and use that as the basis for the calculation of what the exercise of his earning capacity would have yielded in the future. 577 The court in Norris accepted a submission that the proper approach to the resolution of the issue in that case was to use earnings actually achieved by the plaintiff as well as those of other broadly comparable actors in the period since the accident, and thus derive the income which it was likely or probable the plaintiff would have achieved and to adjust that amount in order to accommodate the real possibility that the plaintiff may have earned much more that the comparable actors. 578 That approach is not entirely apposite to the present case but can readily be adapted. 579 In the end, in Norris, Clarke JA (with whom Handley and Sheller JJA agreed) put the approach in simple terms. His Honour said: "The proper approach is to assess what it was most likely [the plaintiff] would earn during the rest of his working life and adjust this for contingencies including the possibility that he might have done far better." (p. 73) 580 I am not convinced that the second limb of this approach is of major significance to the assessment of Mr Sherry's earnings. That was appropriate in Norris because the evidence showed that the possibilities available to that plaintiff were almost infinite and had to be evaluated as a chance. 581 Three possible scenarios were put forward as potentially representing what Mr Sherry would have done by way of occupation and therefore earning after his surgery. These were:

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(vi) demand: Mr Sherry was held in sufficiently high regard as to be in receipt of as much work as he could handle, and at times had to refuse additional assignments. 585 It is also true that the evidence establishes that, for the business to have expanded, significant borrowing would have been necessary, and that this may have involved making use of the family home as security, something to which the plaintiff was reluctant to agree. 586 On the other hand, there was a great deal of evidence, from a number of quarters, concerning Mr Sherry's ability in property management, and also his passion for it to be done, and to be done better than was currently the case. 587 Apart from the evidence given by the plaintiff, the most specific evidence of Mr Sherry's plans for his future came from Mr Huolahan. This evidence was not limited to the plans for the consultancy business, but incorporated the projected associated property management enterprise. Mr Huolahan collaborated with Mr Sherry in the preparation of the Business Plan. Put briefly, their joint intention was to enter into a business arrangement together. Mr Sherry was to continue with the property consultancy which he already operated. Through his contacts in the property industry, he was to seek out contracts for the management of premium or A-grade CBD buildings. Once such a contract had been secured, Mr Huolahan would be engaged as the general manager of that asset, and appropriate staff would be employed. While Mr Sherry would retain all of the income from the consultancy business, the net profits of the property management business would be shared equally between the two men. 588 Their proposal was then progressively to acquire the management of more properties, ideally at the rate of about one a year for three to four years. Their ambition did not extend beyond the acquisition of, at most, four property management contracts, but they did envisage then taking on some "portfolio mandates", relating to suburban or non-CBD properties. As each new property management contract was acquired, Mr Huolahan would be replaced in the management of the existing contract, and move on to the newly acquired contract. 589 It was Mr Huolahan's belief that the negotiations with Grocon had proceeded to a point where, had Mr Sherry not become ill, contracts would have been signed, reflecting the projected figures contained in an exchange of letters between Mr Sherry and Mr Nick Lucas, representing Grocon, in August 1997 (Exhibit F). In that correspondence Mr Sherry set out, in some detail, the fees and costs that would be charged to Grocon. These, specifically, included salaries for a general manager (putatively, Mr Huolahan), and managers of other aspects of the buildings.

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a property management endeavour 590 That Mr Sherry was likely to be awarded the contract to manage the Grocon property at No 1 Martin Place was confirmed by Mr Lucas, who at the relevant time had been a consultant to Grocon. Mr Lucas gave evidence that, following discussions with Mr Sherry, and following receipt of the correspondence that constitutes Exhibit F, his intention was: "... to firm up the proposal and put it to the project control group meeting and have them approve it." 591 He intended to recommend acceptance of Mr Sherry's proposal. He would have wished the engagement to have commenced about twelve months before the development was due for completion. 592 Further, Mr Lucas had borne Mr Sherry in mind for appointment to similar positions in relation to subsequent projects undertaken by Grocon. 593 In cross-examination Mr Lucas agreed that no final decision as to the appointment of Mr Sherry had been made and that, ultimately, management of No 1 Martin Place was undertaken in-house. This decision, however, post-dated Mr Sherry's death and was a result of it. It cannot, therefore, be construed as an indication of what would or might have happened had Mr Sherry survived. 594 This evidence is sufficiently convincing to satisfy me on the probabilities that, had he lived, Mr Sherry (or his company) would have been awarded the contract to manage No 1 Martin Place. That, in itself, has another consequence. It renders it far more likely that Phase 2 of the Business Plan would have been implemented and that Mr Huolahan would indeed have joined the enterprise. It thus strengthens my preference for the second scenario earlier set out as Mr Sherry's most likely career path. 595 Mr Huolahan's evidence (and that of Mr Lucas) was that, as a matter of general policy, he would have begun to work on the contract about a year before the date of practical completion. 596 Further confirmation of the views expressed above are obtained from the evidence of Mr Alan Stringfellow, and Exhibit G. 597 In 1996 Mr Stringfellow was the Managing Director of P&O Services (presumably Pty Ltd), a subsidiary of the P&O Group. At that time P&O Services provided a variety of services to the property sector. These included, on Mr Stringfellow's evidence, "facilities management", maintenance, commercial cleaning, and others. In December 1996 P&O Services engaged Mr Sherry as a consultant. In oral evidence Mr Stringfellow described the task assigned to Mr Sherry as: "... to assist us with understanding the needs and the kind of approach we needed to take in both the areas of asset management and property management ..."

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Establish such a company on his [Mr Sherry's] own and work closely with a large services providor (sic) (such as P&O)." 599 It was apparent to Mr Stringfellow that Mr Sherry did not favour alternative 1; that the advantage of alternative 2 was the sharing of establishment costs; and that the disincentive to alternative 3, from Mr Sherry's point of view, was his total exposure in terms of establishment costs. 600 Mr Stringfellow noted that the cost of developing information technology facilities was a significant issue as it was something that involved considerable expense. 601 Mr Stringfellow was cross-examined about the fluctuations in property management to which I have already referred. He assented to the proposition that, in the late 1990s, it was not "the industry practice" for large commercial portfolios to be managed by small, one or two-person companies. 602 Mr Nicholas Collishaw was the head of property of the James Fielding Group, a group of companies engaged in a diverse range of property and facilities management and property development. He met Mr Sherry in late 1987 or early 1988 and worked with him for a time at the SSB. At the time he gave his evidence the James Fielding Group managed approximately $3.6 billion worth of investment real estate. Mr Collishaw gave evidence that, if Mr Sherry had embarked upon his property management endeavour, his organisation would have made use of its services. Indeed, Mr Collishaw said that, if Mr Sherry's enterprise had commenced, it was likely that the James Fielding property services operation would not have come into existence. 603 During the course of the discussions with Mr Collishaw, Mr Sherry made it plain that the work in which he was already engaged, predominantly consulting work, fully occupied the time that he had available. This effectively brought to an end the negotiations between Mr Sherry and the James Fielding Group. 604 Ultimately, I am not satisfied that the scenario most likely to have eventuated is the second: that is, that Mr Sherry would have implemented his Business Plan, continued with his consultancy, and expanded into property management. That is largely for the reasons advanced on behalf of the defendants. Additionally, cross-examination of Ms Jennifer Exner, an accountant called on behalf of the plaintiff to quantify potential earnings from such a business, cast real doubt upon its financial viability. It seems to be clear that, neither in 1997, nor since, has there been (at least successfully) a boutique business of the kind envisaged by Mr Sherry. This may well be because the costs of this operation demanded fees beyond the level which building owners would be willing to pay. 605 It is, in my view, rather more probable that Mr Sherry would have curbed his entrepreneurial ambitions and continued to provide a first class consultancy service; I do not, however, altogether exclude the possibility that he would have moved into property management; alternatively, he may well have been lured, by the offer of financial incentives, into employment with one of the large companies that sought him out. 606 I propose, therefore, to assess damages on the basis that he would have remained in the consultancy, but to include some allowance for the possibility that he may have expanded into financially rewarding property management. Such an allowance is necessary to reflect the advanced stage of the negotiations between Mr Sherry and Grocon. That allowance will be relatively modest. 607 My conclusions, of course, still leave open a vast range of possibilities encompassing what kind of consultancies would have come Mr Sherry's way had he taken that course. Certainly he was ambitious and had his heart set upon managing the most prestigious properties in Sydney (and, possibly, elsewhere), but ambition is not the sole determinant of success, nor of rich takings; and while diligence, which Mr Sherry undoubtedly exhibited, adds to the prospects of success, that too, is not determinative. The property market is, as Mr Huolahan pointed out in his evidence, cyclical and subject to volatility in its operation and management. For example, at times in-house management tends to be favoured, at other times "outsourcing" tends to be preferred. Obviously, during times when the latter is in favour, the opportunities for individuals such as Mr Sherry are enhanced; just as, during times when the former is in favour, opportunities in private practice are reduced (with, however, corresponding increases in employment opportunities).

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salaried employment 608 For the purpose of assessing damages, it is convenient to begin with the evidence as to salaries in the industry. This is, in part, because I am satisfied that it would only have been a failure to earn an income commensurate with salary levels to which he could have aspired that would have driven Mr Sherry back into salaried employment. He preferred to conduct his own operation, and disliked working in large organisations. Salaries are therefore a guide to the minimum income that would have kept Mr Sherry in the private enterprise area. 609 The most comprehensive evidence in this respect came from the work of Ms Marguerita Avdiev, who is, among other things, a certified management consultant, and was called on behalf of the defendant. Ms Avdiev also manages a human resources organisation (the Avdiev group) the business of which is executive recruitment and remuneration consulting. As part of that business the group publishes twice annually the Avdiev Property Remuneration Report (commonly known as "the Avdiev Report"). This is the result of a survey listing positions in nine different market sectors within the property industry. 610 Extracts from the Avdiev Report for the years 1997 to 2004 became Exhibit H. The report examined various positions within various "markets" in the property industry; it then divided the positions into "Low", "Mean", "75%" and "High"; and set out gross base salaries, additional benefits, and the total remuneration package for each position. It made a comparison between the total remuneration packages for various positions between three states, NSW, Queensland, and Victoria. 611 Based on that report Ms Avdiev prepared, for the purpose of these proceedings, an expert report directly related to Mr Sherry's potential earnings if employed in the property industry. She outlined six "scenarios", which were, in effect, hypothetical positions in which Mr Sherry might have been employed. She expressed the view that Mr Sherry could have performed equally well in any of the six. The six positions were:

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(vi) managing director of Sherry Property Management. 612 Using the data from the Avdiev Remuneration Report, Ms Avdiev then provided her assessment of the remuneration Mr Sherry could have achieved in each of those positions, in each of the years 1997 to 2004 inclusive. In most cases, the figures provided included what was called a "total package", together with "incentive", giving a "total remuneration". 613 The total remuneration packages varied, for 1997, from $125,000 (director research consultancy/ tenant advice, scenario (iii)) to $191,500 (national property manager or head of corporate real estate, property and investment funds management, scenarios (i) and (ii)). For the year 2004, the total remuneration packages ranged from $200,000 (director of property management, real estate, scenario (v)) to $250,000 (self employed - head of consulting business, scenario (vi)). 614 In making her assessment Ms Avdiev placed Mr Sherry in the top 25% of individuals performing the functions referred to in the scenarios. It is worth mentioning here that Ms Avdiev, although a witness called on behalf of the defendants, had been acquainted with Mr Sherry, and expressed considerable admiration for his capacity. 615 Both in examination-in-chief, and, more extensively, in cross-examination, Ms Avdiev was asked to explain why she did not classify Mr Sherry as suitable for a position identified in the Avdiev Report for 2003 on page 26 (Exhbit JJJ, a position of Director of Property/ General Manager, in a property investment, funds and trusts management enterprise). What was suggested to Ms Avdiev in cross-examination was that this position, for which the holder was remunerated with a package of $590,000, was one for which Mr Sherry would have been suitable, and which therefore should have been at least incorporated in the scenarios proffered by her. Ms Avdiev's response to this was that the position involved management of investment funds, which is something distinct from management of property assets, the area in which Mr Sherry's expertise lay, and that Mr Sherry lacked the skills and experience that would have been necessary for that position. Ms Avdiev refused to concede that Mr Sherry's experience with the SSB would have qualified him for the position. Her response was, on this aspect, convincing. 616 Less convincing, however, was her response to cross-examination concerning her use of average figures in her various career scenarios. This was because the averages she used were national averages which were invariably lower than NSW averages. Given that Mr Sherry was living in Sydney, and there was no suggestion that he intended to relocate to any other state or territory, it seems to me that a more accurate figure could have been obtained by the use of NSW averages. It is difficult to know what difference this would have made to the final figures. 617 Mr Collishaw's evidence was that Mr Sherry would have been his "first choice" of employee as a head of property management and facilities management. He would have commanded a salary in the order of $350,000 to $400,000, together with bonuses of various kinds, giving a total package of around $500,000. Mr Collishaw was, presumably, giving evidence of potential earnings for 2004. 618 With respect to the Avdiev Report categories, Mr Collishaw saw Mr Sherry as suitable for a position of business manager, or property chief executive officer, but outside the category of property management (t 326), and to be ranked in the "high" component. (It is not possible to fit Mr Collishaw's description of suitable positions with the categories identified in the Avdiev Report. The terminology used by him does not easily correlate with the terminology used in the Avdiev Report.) 619 All things considered, Ms Avdiev's assessment of Mr Sherry's capacity to earn in salaried employment should be regarded, except for one thing, as realistic. In my opinion, having regard to the evidence of Mr Sherry's capacity and reputation, and the demand for his services, it seems to me that placing him only in the top 25% is a little ungenerous. It seems to me that he ought to be placed at no lower than the top 15%, and this should be 15% based on NSW figures. 620 Even so, it is impossible to be precise about what Mr Sherry might have earned in salaried employment. The imponderables are simply too great and too wide ranging. Recognising that it might be perceived as arbitrary, I can do little more than select a figure from within the ranges proposed by Ms Avdiev. I have concluded that I should work on the basis that Mr Sherry would, in salaried employment in 2004, have earned $250,000 per annum. I have taken the figure at the very highest of the ranges proposed by Ms Avdiev in order to allow for the substantially more generous view taken by Mr Collishaw. 621 But, as I have mentioned, this figure is no more than a starting point. It is a guide to the minimum figure that would have kept Mr Sherry in private enterprise. His potential in that form of endeavour was very much greater, although there would, of course, also have been significant risks involved. 622 Mr Huolahan referred to figures contained in the 1996 Business Plan, which were, he thought, "achievable". These showed gross fee income, operating expenses, and profit or loss (before tax) for each of the first four years of operation, respectively:

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property consulting 626 Evidence of what Mr Sherry might have earned in his consultancy business was given by a number of witnesses. It is convenient to set out, as succinctly as possible, the different approaches taken by each of these witnesses, primarily in reports provided by them. 627 The first to mention is Mr Christopher Hart, who described himself as a remuneration consultant providing advice to organisations on the market rates of pay, principally in the financial services market, including property businesses. In his report (Exhibit BB) Mr Hart made some fairly conventional observations about the variables involved in earnings in property businesses and made an assumption (which I consider to be valid) that Mr Sherry was capable of charging at least the average of the market for his consulting services. He considered that, in 1997, Mr Sherry could have generated a total income stream of $258,750. From this would have to be deducted expenses amounting to between $70,000 and $100,000. This was rather less than salaries paid to management consultants in medium to large firms who were, he said, expected to generate gross fees of between $250,000 and $500,000 (at 2004 rates) depending upon the seniority of the consultant. 628 It seems that Mr Hart was working on an assumption that Mr Sherry's charge-out rate was $1,000 per day. This was based upon the known fact that the arrangement to which he had come with Grocon was for remuneration in that order. Two things may be said about this assumption. Firstly, the arrangement with Grocon was particularly desirable to Mr Sherry and this may have influenced him to accept a lower than usual rate; secondly the Grocon arrangement was for property management and not property consultancy. Mr Hart seems to have assumed that the fees payable in the two fields of endeavour were comparable. I am not in a position to evaluate whether this assumption is a fair one or not. 629 In any event, Mr Hart turned his attention to projected earnings in the property consulting that would have been available to Mr Sherry in 2004. These he assessed as giving a total income stream of approximately $330,000, at a charge-out rate of $1600 per day. He then said, but without explanation, that, more realistically, he believed fees of approximately $500,000 could be generated. In doing so, he appears to have worked on a daily rate of $2,400. Again, he gave no explanation for arriving at this figure. Nor did he factor into that assessment the level of costs and expenses that would have to be deducted. Obviously, this would be significantly more than the $70,000 to $100,000 applicable in 1997. The position received some clarification in cross-examination. Mr Hart accepted that, by 2004, expenses could be expected to be in the range of $110,000 to $130,000. That would result in a net income before tax of $220,000 to $280,000. 630 The second witness on this aspect was Ms Judith Exner who was a partner in a firm providing litigation consultancy services and who has accountancy qualifications. 631 The precise instructions that were given to Ms Exner, and the assumption she thereupon made, are not easy to discern, either from her two reports, or her oral evidence; and it is not easy to translate the exercise she has undertaken into the approach that was subsequently taken by the parties and which I have adopted in this judgment. For example, Ms Exner appears to have devoted a considerable part of her energy to assessing what would have been the value of a company through which Mr Sherry undertook his assignments. But this also appears to have included a property management component, which is something I am attempting to exclude from the present exercise, for reasons I have already made plain. With that caveat, Ms Exner assessed the consultancy fees that would have been earned by the company as $259,500 in 1999, to $380,600 in 2003: each of these being based on 173 days consulting. The figure dropped to $206,400 in 2004, but this is on the basis that she allowed only for 86 days consulting for that year. She took this course in accordance with instructions given to her; in cross-examination she said that her instructions did not indicate why this reduction was posited. Nor does she appear to have taken into account, or specifically calculated, any costs or expenses specifically referable to the consultancy aspect of the business. 632 The third witness on this issue was Mr Charles Dalrymple-Hay, who gave evidence on behalf of the defendants. Mr Dalrymple-Hay is a certified practising valuer and an associate of the Australian Property Institute. His expertise includes delivering "broad-based property advisory and consulting services to a corporate client base", amongst other things. 633 Mr Dalrymple-Hay also provided an extensive report which, relevantly for present purposes, includes an estimated income that Mr Sherry might have earned as "a sole practitioner". (I take this to mean as a sole practitioner in a consultancy, but not property management, business.) The figures he arrived at were $195,900 for 1996, graduating to $293,000 for 2003. Mr Dalrymple-Hay specified that these were gross figures and, while he recognised that some expenses would be incurred and would need to be deducted, he did not, in his report, quantify these. 634 What this shows is that, taking a realistic view of Mr Sherry's potential earnings in his consultancy, there is little difference between those figures and those which emerge from determining his potential earnings in salaried employment. 635 The calculation of the damages to be awarded to the plaintiff by way of past and future economic loss will be made on the basis that, at the time of his death, Mr Sherry would have been earning $250,000 per annum; that will be supplemented by 15% to allow for the possibility of expansion into property management.

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When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison, it is possible to ascertain the 'balance of the loss' - on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse - and the true nature and extent of the 'injury resulting from [the] death to the parties'. When that comparison is made and the 'balance of the loss' is ascertained, evaluation of the loss can proceed." (p. 247) 640 Deane J also made additional observations. Noting that the entitlements under compensation to relatives legislation is to such damages as are "proportioned" to the injury sustained by reason of the death (s4(1) of the Compensation to Relatives Act), his Honour said: "The word 'proportioned' plainly introduces an element of what is reasonable in the circumstances. It follows that the mere fact that a deceased would, if he or she had lived, probably have provided gratuitous domestic services as a spouse, parent or child does not mean that the surviving relative is automatically entitled to damages calculated by reference to what it would cost in some actual or hypothetical marketplace to acquire all of the services which he or she would probably have enjoyed but for the death. The notion of what represents reasonable or proportionate compensation must take account of the need for the relevant services in the circumstances of the particular case. So to say is not to confuse the loss of services with the need for them. It is simply to recognize that it would be unreal to seek to ascertain the damages 'proportioned' to the 'injury' sustained by a particular claimant by way of loss of services without taking account of whether there was a reasonable need of the services or, in an extreme case, whether the applicant might even be properly seen as better off without them. Put differently, the damages 'proportioned' to the 'injury' which a particular claimant sustains by way of lost gratuitous services cannot be realistically assessed without regard being paid to the question whether the particular services were superfluous to the reasonable needs of the particular claimant. In a context where the ultimate burden of liability to pay damages under [compensation to relatives legislation] action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values..." (p. 257) 641 The majority (at p. 265) agreed that quantification of the losses so incurred is not necessarily to be made by reference to the actual cost of providing substitute services. 642 With those principles in mind, I turn to the factual detail of the claim made by the plaintiff. I have already referred, broadly, to much of the evidence concerning the manner in which Mr Sherry related to and provided services to his children and the plaintiff. 643 There was little specific evidence directed to the nature of any services provided in return, other than that the plaintiff generally managed the household finances. The evidence satisfies me, however, that, as I have already characterised it, domestic chores were divided along fairly conventional or traditional lines, the plaintiff undertaking the majority of the indoor and housekeeping tasks, and Mr Sherry actively participating in the outdoor maintenance of the home and garden, and being (perhaps more than usually) involved in the daily lives of his children. 644 The evidence was that he spent a total of about four hours per week upon such tasks as gardening, landscaping and cleaning the swimming pool; between two and six hours per week assisting Ryan with schoolwork (except on those occasions when Mr Sherry was himself absent from the home for business reasons); between three and seven and a half hours per week in athletics coaching (again, when Mr Sherry was at the home); and three to four hours per week assisting Ryan in other tasks involving fine motor skills, such as cutting up food and shaving. 645 In written submissions provided on behalf of the plaintiff the claim originally made in a document filed in this Court pursuant to SCR Part 33 Rule 8A was modified. The claim made in written submissions was, as I understand it, as follows:

[146]

(ii) assistance to Ryan: (a) tuition, scribing, daily living: 4 hours per week; (b) athletics coaching: 4 hours per week for four years (September 1996 to 200). 646 The claim for home maintenance services is quantified (plaintiff's written submissions paragraph GG14) by reference to a report which never found its way into evidence in the trial. It may be uncontroversial, but since it will be necessary for the matter to return for the resolution of various outstanding matters, I defer making a final finding on that quantification. 647 I observe that the task of evaluating Mr Sherry's contribution to family life as "services" appears to be somewhat artificial. Family life (at least at its best) involves an exchange of "services" with give and take on all sides. The defendants submitted that, to some extent at least, the loss of the services provided by Mr Sherry to the plaintiff is offset by the corresponding reduction in her need to provide services to him. That analysis is ineffective; generally speaking, the "services" provided by the plaintiff to Mr Sherry must have been subsumed in the "services" she provided, and continues to provide, to the children. The demands upon her, would, in my opinion, not be significantly reduced by reason of Mr Sherry's death. 648 I have concluded that the claim for damages for the loss of Mr Sherry's services in relation to house and garden maintenance comes within the principles stated in Nguyen and should be allowed for the four hours per week claimed. 649 I am also satisfied that the claim in respect of the additional assistance provided to Ryan has been good. In this respect the evidence of Mr Sherry's devotion is impressive and illustrates a contribution well beyond the basic parental demands. I propose to allow the claim for day to day assistance, and the claim for athletics training, up to 2000. 650 The day to day assistance, however, should not be open-ended. Ryan has proved himself, while plainly grieving the loss of his father, competent to hold down full-time paid employment, to drive a manual vehicle, and to manage most tasks for himself. I am satisfied that he will eventually establish an independent life for himself in his own accommodation. I will allow the claim for domestic assistance until he attains the age of 25 years.

[148]

life expectancy 653 A significant issue arose as to Mr Sherry's life expectancy. To some extent this contest depended upon the identification of the precise nature of the heart disease Mr Sherry undoubtedly suffered. Associated with that is an assessment of its severity and a prediction of the course it would have followed had he survived the surgery. 654 On this issue, reports were provided on behalf of the plaintiff by Associate Professor David Richards, a consultant cardiologist at Westmead Private Hospital and Clinical Associate Professor at the University of Sydney; and on behalf of the defendants by Professor Michael O'Rourke, Professor of Medicine at the University of Sydney and a specialist in cardio-vascular medicine and hypertension at St Vincent's Hospital; and Dr Geoffrey Berry, Emeritus Professor in the School of Public Health, at the University of Sydney (who, while highly qualified in his own field, does not possess medical qualifications). 655 In determining what Mr Sherry's life expectancy, absent the haemorrhage, would have been, the starting point - but only the starting point - is the Australian Life Tables. Mr Sherry was 46 years of age at the time of his death. The Life Tables published in the fourth (2002) edition of Luntz: Assessment of Damages for Personal Injury and Death indicate that at that age Mr Sherry would have had an expectation of living a further 32.82 years. That is not precisely the figure used by the experts. Professor O'Rourke worked on the 1998 figures of 34.68 years; Dr Berry used 1999 - 2001 table giving a life expectancy of 33.5 years. Professor Richards did not specify the basis of his calculations, but an arithmetical exercise from his report suggests that his starting point was 35 years. I would not, in the ordinary course, have thought that the discrepancies were of any great moment, and note these only to explain figures that might otherwise appear irreconcilable. 656 As I have indicated, the life table figures are a starting point only. As Professor Berry pointed out, the tables define the expectation of life of a group, not of the individual members thereof. The life expectancy of any individual member of the group may vary from that of the group as a whole by reason of facts and circumstances particular to that individual. 657 A number of factors are relevant to the calculation of Mr Sherry's life expectancy. Predominant amongst these is his heart disease. It was this that gave rise to the major debate as to what his prognosis would have been. Subsidiary, but related, matters include his history of smoking, family history (of heart disease), physical fitness, and diet. 658 Professor O'Rourke concluded that, because of his heart disease, Mr Sherry's life expectancy was reduced by 10 - 15 years (or 29% - 43%) to 20 - 25 years. I find the dimension of this reduction a little difficult to reconcile with Professor O'Rourke's observation that Mr Sherry had no continuing risk factors for coronary atherosclerosis, and the Professor's anticipation Mr Sherry would have undertaken all possible measures to prevent the recurrence of the disease. As against that, there was evidence that Mr Sherry's mother had died at a relatively young age of heart disease and, of course, Mr Sherry's own predisposition. 659 Professor Berry, whose statistical qualifications are infinitely superior to those of the other experts, but who was dependent upon those suitably qualified for medical information, concluded that the reduction in life expectancy was determined by the extent of the disease. This was a reflection of a dispute in the evidence about whether Mr Sherry had disease in one, two, or three arteries. Professor Berry considered that life expectancy would have been 26 years if the disease affected only one artery, 19 if it affected two, and 15 if it affected three. (In written submissions the defendants contended that Mr Sherry had "double vessel" disease.) 660 Professor Richards disagreed with Professor O'Rourke. He considered that Mr Sherry had a life expectancy of 28 years. Essentially, as I understand his report, this was because he had more faith in the success of the surgery. However, his opinion appears to have been predicated upon Mr Sherry's having single, not double, vessel disease. In fact, Professor Richards took the view that Mr Sherry's condition was something less than that that could be characterised as "disease". He said in oral evidence: "The assessment of prognosis, as I have done it, assumed single vessel disease when in fact he probably didn't have disease to that extent ..." 661 Mr Glenville took a similar view. 662 Dr Marshman's evidence in this respect is of some interest. At the time he saw Mr Sherry he was of, and acted upon, the view that Mr Sherry had single vessel disease. Following his examination of the autopsy report he formed the opinion that Mr Sherry had triple vessel disease. However, Mr Glenville and Professor Richards considered that the findings on autopsy were consistent with the diagnosis that had been made while Mr Sherry was alive. 663 As I think I have earlier made clear, I am unable to make any findings on disputed questions of fact on the basis of the credibility of any of these witnesses. Notwithstanding his plain interest in the outcome of the proceedings, I found Dr Marshman to be an entirely credible witness and one whose evidence was not coloured by his interest. 664 But, even in the written submissions of the defendants, no attempt was made to argue that Mr Sherry should be held to have had triple vessel disease. 665 Resolution of this issue is extremely difficult, based as it must be upon choosing the opinion of one highly qualified expert over another equally highly qualified expert. In my opinion justice will be done if I work upon the basis that Mr Sherry had a life expectancy of 22 years. That is the course that I propose to take. 666 There remain outstanding certain other issues, such as superannuation. The defendants accept that a figure claimed by way of funeral expenses ought to be allowed. That can be incorporated in short minutes of orders which I will ultimately direct the parties to bring in. 667 The orders I make are:

Sherry v Australasian Conference Association

At a glance

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Judgment (151 paragraphs)

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Cases Cited (9)

Cited By (2)