The Commonwealth of Australia v. Ferguson, J.M. & Ors [1985] FCA 65

Law Reform (Miscellaneous Provisions) Act (N.T.), ss.12, 12

THE COMMONWEALTH OF AUSTRALIA v. GUDITH MARTIN, EILEEN MARGARET FERGUSON and MICHAEL JAMES O'REILLY (No. NT G4 OF 1984)

EILEEN MARGARET FERGUSON and MICHAEL JAMES O'REILLY v. THE COMMONWEALTH OF AUSTRALIA (No. NIT G5 of 1984)

CORAM: Woodward, Gailop and Neaves JJ. 6 March 1965

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NT G4 of 1984

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

BETWEEN : THE COMMONWEALTH OF AUSTRALIA Appellant (Third Defendant)

EILEEN MARGARET FERGUSON Second Respondent (First Defendant)

MICHAEL JAMES 0'PEILLY Third Respondent 'Second Defendant)

ORDER JUDGES MAKING ORDER 3 Woodward. Gallop and Neaves Jc. DATE OF ORDER i 6 March 1985 WHERE MADE : Canberra THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the farst

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NT G5 of 1984 GENERAL DIVISION )

ON_APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

BETWEEN: EILEEN MARGARET FERGUSON and MICHAEL JAMES 0' REILLY Appellants {(Farst and Second Defendants)

AND: THE COMMONWEALTH OF AUSTRALIA Respondent (Third Defendant)

ORDER JUDGES MAKING ORDER : Woodward, Gailor and Neaves JJ. DATE OF ORDER : 6 March 1985 WHERE MADE : Canberra THE COURT ORDERS THAT: l. The appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NT G4 of 1984

ON_ APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

BETWEEN ; THE COMMONWEALTH OF AUSTRALIA Appellant (Third Defendant)

EILEEN MARGARET FERGUSON Second Respondent (First Defendant)

MICHAEL JAMES 0' REILLY Third Respondent (Second Defendant)

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NT G5 of 1984 GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

BETWEEN : EILEEN MARGARET FERGUSON and MICHAEL JAMES O'REILLY Appellants {First and Second Defendants)

These two appeals from the Supreme Court of the Northern Territory, which by consent were heard together, raise difficult questions of fact and questions of law of some complexity. So far as the principal issue of law is concerned it is surprising, to say the least, that the issue has not, so far as the researches of counsel have discovered, been the subject of judiczal consideration. That issue 1s whether, ina case where the doing of a negligent act results in personal injury from which, in the absence of prompt and effective medical treatment, the victim will surely die and there is a negligent failure on the part of a medical practitioner to provide such treatment, an action for damages under the statutes providing a remedy for wrongful death lies against both the tortfeaser who inflicted the personal injury and the medical practitioner. If that :ssue 18 resolved in the affirmative, the further issues arise whether the tortfeasors may seek contribution from each other in relation to the damages

recoverable under the statute and, if so, on what basis 1s

the Northern Territory at about 10.45 p.m. on 7 November 1978 when a Mazda sedan owned by William James O'Reilly ("O'Reilly") and driven by Eileen Margaret Ferguson ("Ferguson") came into collision with a Toyota Hi Ace van driven by Thomas Martin ("the deceased"). There is no Gispute that Ferguson drove the Mazda sedan across the path of the deceased's vehicle and in so doing was guilty of negligence. It must also be accepted that the deceased was guilty of nealigence which the Supreme Court of the Northern

Territory found "contributed to the extent of 20% to his

In the accident, the deceased suffered serious injuries which were inevitably death producing without corrective surgery. He suffered a traumatic laceration of the smali bowel and small bowel mesentery. The deceased was taken by ambulance to the Gove District Hospital and admitted. That hospital was at the relevant time operated and staffed by the Commonwealth of Australia ("the Commonwealth"). The deceased died at about 3.30 a.m. on ll November 1978 as a result of septicaemia secondary to peritonitis caused by faecal contamination of the peritoneal cavity by the perforation of his bowel, such bowel damage clearly resulting from injuries he received in the motor

The widow of the deceased, Judith Martin, ("the widow"), pursuant to sub-section 7(1) of the Compensation

(Fatal Injuries) Act of the Northern Territory, brought an

action for damages consequent upon the death of the deceased. The action, brought on behalf of her four children as well as on her own behalf, named Ferguson and O'Reilly as defendants. By their defence those defendants denied liability and alleged that the deceased's death was caused by the negligence of the Gove District Hospital and its staff in failing properly to diagnose and treat the

deceased's internal iniuries, such negligence amounting to a

novus actus intervenrens between the motor vehicle accident

and the deceased's death. It was also alleged that the deceased had been quilty of negiigence which caused or

The widow then joined the Commonwealth as a defendant to the proceedings and amended the statement of claim filed therein to ailege a cause of action against the Commonwealth under sub-section 7(1) of the Compensation

(Fatal Iniuries) Act on the footing that the deceased's

death was caused by the negligence of the Commonwealth's servants or agents in that they failed to provide, establish or maintain a reasonable system of care for the deceased or,

alternatively, failed to use reasonable care and skill in

carrying out treatment and care of the deceased as a

Third party notices were given by Ferguson and O'Reilly to the Commonwealth and to Maxwell Roy Chalmers and Mohan Ran Pillai both of whom were medical practitioners at the Gove District Hospital. A third party notice was given

When the action came on for hearing before the Supreme Court, Ferguson and O'Reilly admitted that Ferquson was guilty of negligence in the manner in which she drove the Mazda sedan and that O'Reilly was vicaricusly liable for that nealigence. The case proceeded on the footing that the principal issue for determination was whether the death of the deceased had been caused, not by the injuries received in the motor vehicle accident, but by the negligence of the medical practitioners at the Gove District Hospitai, that negligence being of such a character as to break the chain

of causation between the negligence of Ferguson and the deceased's death. It was common around that the medical practztioners involved were the servants or agents of the Commonwealth and that the Commonwealth was vicariously liable in respect of any damage flowing from negligence on

their part. The third party notices given to Dr Chalmers

deliberately abandoned the contention that the negligence of the medical practitioners at the Gove District Hospital

amounted to a4 novus actus interveniens so as to break the

chain of causation between the road accident and the deceased's death. He contended, however, that Ferguson and O'Reilly were entitled to contribution or indemnity from the Commonwealth in respect of any damages they might be orcaered

against the defendants in the sum of $178,136 apportioned

between the widow and her four children as follows -

Widow $131,334 Hector Martin s 3,200 Judith Sally Martin $s 10,400 Keita Martin $ 15,600 Weireta Martin $_17,600

The sum of $178,136 represented 80% of the total damages assessed ($222,670), those damages being reduced in accordance with the finding mentioned above that the negligence of the deceased contributed to his injuries and death to the extent of 20%. The Court ordered that, of the sum awarded, Ferguson and O'Reilly contribute the sum of $133,602 (1.e. 60% of $222,670 or 75% of $178,136) and the

Commonwealth the balance of $44,534 (i.e. 20% of $222,670 or

25% of $178,136). The formal order of the Supreme Court did

not, however, accurately reflect the judgment cqiven by the

learned trial judge and steps were taken during the hearing

of the appeals to have the formal order appropriately

The Commonwealth has appealed from that part of the judgment whereby 1t was held liable in damages to the widow. The respondents named in that appeal are the widow, Ferguson and O'Reilly. Ferguson and O'Reilly have appealed from that part of the judgment "as apportioned responsibility for the death of Thomas Martin as against the Appellants CFerguson

and O'Reilly] to the extent of 60% and as against the Respondent Cthe Commonwealth] to the extent cf 20%". The

and O'Reilly set out the following grounds of appeal -

"(a) That the apportionment was inconsistent with and contrary to the found facts.

(b) That the learned trial judge made an error of law in that -

(1) He failed to have sufficient regard to the extent of the Respondent's Cthe Commonwealth' sJ responsibility for the death of Thomas Martin.

(il) He wrongly took anto account and/or assessed the relative 'dangerousness' of the first Appellant s CFerguson' si negligent acts.

(1i1) He failed to take into account Thomas Martin's prospects of

survival had he received proper and timely medical treatment."

At the hearing counsel for Ferguson and 0O'Reilly sought leave to amend the notice of appeal by adding the following

"(c) That the learned trial judge erred in failing to find that the neaqligence of the Respondent [the Commonwealth] and its doctors constituted a novus actus interveniens."

In support of the application counsel relied on the circumstance that the question whether the conduct of the

medical practitioners at the Gove District Hospital ain treating and caring for the deceased amounted to a novus

actus interveniens was and remained an issue at the trial

until the point was abandoned by counsel for Ferguson and O'Reilly during his final address, an address made after the addresses of the other parties. It was submitted that the failure to maintain that point in no way prejudiced the other parties in terms of the evidence that was adduced at the trial or the terms of the submissions they made except those in reply to what had been put on behalf of Ferguson and O'Reilly. It was submitted that any prejudice could be

rectified by the Court making an appropriate order as to

In his reasons for Judgment the learned trial judge

adverted to the matter in two passages. His Honour said -

"The first and second defendants [Ferguson and O'ReillyJ no longer maintain the argument prefaced on the pleadings that such negligence (if proved) constituted a novus actus putting an end to their liability beyond admission to hospital. On the facts here such an arqument was untenable and there is no necessity to consider the authorities."

"As I have said it was not finally contended - and in my view ridghtly so - that the Commonwealth's negligence constituted a novus actus so as to put an end to the liability of the first and second defendants at the hospita

It was submitted that the Court should grant the application so as not to be constrained artificially in its consideration of the causal significance of the negligence of the medical practitioners by reason of the concession

that had been made in the closing stages of the addresses at

The Court decided that the application should be refused and indicated that it would qive reasons for that

decision when delivering judgment on the substantive appeal.

Because the point was expressly abandoned at a time when there had been ample opportunity for due consideration of the consequences of takina that step, this Court does not have the benefit of any discussion of the point by the learned trial judae and although, as has been already mentioned, his Honour regarded the point as untenable, the Court does not have the benefit of the reasons which his Honour had for expressing that view. We took the view that to allow the matter to be reopened 1m such circumstances would be of particular significance in relation to the conduct of trials and we thought it inappropriate, except in the most exceptional circumstances, that an appeal should be allowed to proceed on an entirely different basis from that upon which the matter was put to the learned trial judge. We did not regard the circumstance put to us by counsel for Ferguson and O'Reilly that the point had been a live one during the course of the taking of evidence in the Court below as amounting to an exceptional circumstance warranting the granting of the leave sought. We should add that we do not reqard the decision of the High Court in Chalmers Leask

Underwriting Agencies v. Mayne Nickless Ltd. (1983) 49

A.L.R. 149 relied upon by counsel for Ferquson and 0'Reilly as requiring a different conclusion. That case was concerned not with a point that had been expressly abandoned

As has been already mentioned the widow's claim was

based on sub-section 7(1) of the Compensation (Fatal

"Where the death of a person 1s caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages

in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime."

Sub-section 7(1) has its origin in section I of Lord Campbell's Act (9 & 10 Vaict. c.93) but, for reasons which will appear, it is not a faithful reproduction of that provision. Its application to the circumstances of a particular case depends upon the Court being satisfied, on

the balance of probabilities, that the various requirements

One of those requirements 1s that the act, neglect or default of the person sought to be made liable is such

that 1t would, if death had not ensued, have entitled the

person injured to maintain an action and recover damages "in respect of the injury". In so providing the language of the sub-section departs from the language of section I of Lord Campbell's Act and of the legislation of the various States

of Australia modelled upon that statute (although not that

in force in the Australian Capital Territory which is in identical terms to the Northern Territory legislation). Section I of Lord Campbell's Act and the corresponding section of the legislation in force in each of the various States provides that the act, neglect or default must he such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages "in respect thereof". These latter words, read ain their context, would appear to relate back to the act, neglect or default and not, as in the Northern Territory legislation,

to the injury. It may be a question whether this change of

Another requirement of sub-section 7(1) is that the

death of the person be "caused" by the wrongful act, neglect

Once those requirements are fulfilled the statute provides as the consequence that the person who wouid have

been liable if death had not ensued 1s to be liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person

was caused by circumstances that amount in law to a

appeal from the decision of the Supreme Court that Ferguson

and O'Reilly were liable in damages to the plaintiff. They were held liable on the footing that Ferguson's negligent act (for which O'Reilly was legally responsible) in driving the Mazda sedan not only caused the deceased's death but was such that, had the deceased survived, he wouid have been entitled to maintain an action against both Ferguson and

O'Reilly in respect of the injuries he received in the motor vehicle accident. Thus the requirements of sub-section 7(1)

of the Compensation (Fatal Injuries) Act were satisfied.

We must turn, then. to a consideration of the question whether sub-section 7(1) operates, in the circumstances of this case, to create a liability in the Commonweaith to pay damages to the widow. As a first step, it wili be convenient to examine the question whether the medical practitioners who attended the deceased at Gove District Hospital were, or either of them was, guilty of a wrongful act. neglect or default, or more accurately whether the reasons given by the learned trial judge in support of his affirmative answer to that question exhibit error

In his reasons for judgment the learned trial judge

"The deceased was admitted to hospital shortly before midnight on Tuesday 7th November 1978. The nurses' notes indicate he was very restless and complaining of 'severe abdominal pain'. Dr

Chalmers saw him soon after. He noted no cross external injuries but observed the patient smelt strongly of alcohol. He was placed under observation for head injury. About three hours later he complained to both Dr Pillai and the nursing staff of abdominal pain and the former prescribed morphine - not in the view of some a wise prescription for a patient under observation for either head or internal injury. At this stage he 185 reported to have been conscious but his pulse rate had increased. In the early hours of the morning he expressed anxiety to contact his employers and at about 7.1l5a.m. Dr Chalmers encountered the deceased walking 'a bit stocped over - but fairly briskly' en route to take a taxi home. He was sent back to the ward. Dr Chalmers found his abdomen to be a little tense but bowel signs were sluagish. This incident I am afraid assumed great significance in'Dr Chalmers' mind. As he said in evidence, having observed the internal damage upon operation - 'I was shocKxed

• I was really surprised that somebody with that much injury had in fact been able to walk - I

hadn't thought that was possible'. It is. on the evidence indeed surprising that the deceased walked that morning. He was a strong fit

fellow, and 21t may well be that the alcohol he consumed and/or the effects of the morphine played their part - together with his anxiety to get back to work. Be that as it may I find this incident deceived Dr Chalmers and it may explain why, much later that day he instructed the nursing staff to discontinue taking girth measurements although at the time this instruction was given some distension was establisned. It may also explain why Sister Witthahn's expressed anxiety found no ready

response. But the clinical picture as it emerged that Cay agave no justification for lack of extreme vigilance. Pain continued. At

1.00p.m. on 8th November 1t was categorised by Sister Witthahn as 'very severe', he was unable to pass urine and she commented 'quite a bit of abdominal distension' was present. She notified Dr Chalmers. An hour later she recorded 'abdominal pain getting more severe - short breathing pattern' - the latter being consistent with severe pain and the continued symptoms consistent with bowel injury. He had refused lunch and was not voiding urine. At about 3.00p.m. Dr Pillai catheterised the patient and the urine contained some blood. He recorded that bowel sounds were sluggish. At about

9,00p.m. that evening more morphine was administered and there was an increase in blood pressure, pulse rates, temperature and girth measurement - information which was recorded on the hospital charts. It was at this time that Dr Chalmers directed that measurements of girth should be discontinued, a direction I find hard to comprehend in view of the history available to him at that time. During the night further drugs were administered. Upon the evidence I have heard as to the symptoms and progress of

traumatic bowel injury I am satisfied that at that stage, about 24 hours after his admission,

the symptoms merited anxiety and active treatment. Some change in bowel sounds, haematuria, rising pulse rate, shallow breathing, continuing complaints of severe pain warranting the administration of morphia were symptoms which should have continued to put the doctors on their guard to avoid falling into the 'trap' referred to by Mr Fleming and others in evidence of awaiting the 'full development' of

clinical symptoms before taking positive steps - which I find were available - evacuation,

During the following dav, the 9th November, there 1s no record of examination by a doctor until 11.00p.m. that night when the symptoms st1ll were ominous. On that day three of the other patients injured in the accident who were members of the R.A.A.F. were evacuated by Hercules aircraft. I have some doubts as to whether any detailed examination of the deceased was carried out by a doctor before 11.00p.m. that night. Dr Chalmers believes he did examine the deceased although neither his notes, nor the

nurses' notes support a proper examination. It 1s more iikely I think that he observed the

deceased in the course of his comings and goings in the small ward. Sister Witthahn recorded inter alia that he was 'quite restless' at times, that he complained of abdominal pain of varying degree and as the day wore on he 'seems quite disoriented'. In evidence she stated 'I had the feeling that the patient was in pain and he was coming towards a disorientation state. He came towards a toxic state'. These observations were upon the evidence of great significance, restlessness and disorientation being danger signs. They were adequately recorded in the notes but did not elicit medical response. The 'wart and see' programme

continued until 11.00p.m. that night when the deceased vomited a bile stained fluid and Dr Pillal was called. During the day- his pulse rate increased to 120 with some short lived recessions, his blood pressure rose to 140 over 110 and his temperature remained higher than normal. Shortly before midnight on the 9th November, in response to the call earlier made by the nursing staff, the deceased was seen anc examined by Dr Pillai who recorded this examination in the hospital notes. It suffices to say that following the examination Dr Pillai suspected peritonitis but decided on a course of continuing treatment and observation."

"Further examination during the morning indicated general tenderness and riqidity of the abdomen. H-Rays of poor quality and of little assistance were taken and pre-operative treatment was prescribed. Dr Chalmers took charge and carried out the operation. I find from his evidence that even at this stage he did not really suspect the major probiems which the operation revealed and he considered only there may have been a mechanical obstruction of the small bowel. Upon laparotomy the full extent of damage was revealed. As I have said there can be no criticism of the surgical procedures or the subsequent efforts ta maintain iife but I find that the delay between the injuries and operative intervention was such as to make the patient's death at that late stage almost inevitable."

His Honour regarded it as proved that within 24 hours of his admission the deceased was exhibiting a combination of clinical and subjective symptoms which necessitated active steps and surgical intervention, bearing

in mind that it was only by inspection of the bowel that the

extent of the damage could have been assessed and, if

failed to heed the combination of symptoms and that Dr Chalmers placed too much weight upon his own provisional diagnosis of seat-belt bruising, a diagnosis confirmed in his mind by the deceased's apparent physical capacities on the morning following his admission but contradicted by the duly recorded clinical observations. His Honour also found that the medical (as opposed to the nursing) surveillance fell short of the degree demanded by the deceased's history and symptoms. His Honour concluded that "in the careful exercise of his professional skills a provisional Ciagnosis leading to laparotomy and final diagnosis should have been made by Dr Chalmers considerably earlier and that this would, on the probabilities, have led to earlier 11fe saving surgery either at Gove or elsewhere." He found Dr Chalmers negligent "in his failure in this instance in allowing the injuries to remain undiagnosed so long, knowing as he did the inherent dangers should his earlier provisional

Having considered the whole of the evidence, we are of the opinion that there was material upon which the learned trial judge could find that Dr Chalmers was quilty

of negligence in failing to diagnose the deceased's

condition and to operate upon him at an earlier point of

time. We are unable to accept the arguments to the contrary put to us by counsel for the Commonwealth. We see no reason

whether the death of the deceased was caused by the wrongful

was that, by the time when Dr Chalmers' failure to act could properly be said to have amounted to negligence, it was

probably already too late ta save the life of the injured

between the delay in operating and the chances of the injured man surviving. As the symptoms became more demanding of attention, and the doctor's negligence in omitting to act became clearer, so the chances of survival reduced. However, it was not incumbent on the learned trial

judge to fix a precise moment when negligence was clearly established and a successful operation could safely he predicted. His Honour was entitled to weigh the increasingly negligent conduct against the steadily

diminishing chance of the patient's survival and reach a

finding as to whether the course of conduct over a period

In fact his Honour was rather more specific than this, because he reached a positive finding that the deceased ""... within 24 hours of his admission was exhibiting a combination of clinical and subjective symptoms which I find necessitated active steps and surgical intervention ...". There was medical evidence, which his Honour was clearly entitled to accept, and by inference did accept, to the effect that an operation on the afternoon following the accident (some 15 hours after admission) would have had "a negligible risk of mortality" anc one late the following night (48 hours after admission) would have had a 40-50% chance of success. It was open toa his Honour to infer that an operation within 24 hours had every prospect

of success. We therefore do not accept this submission of

Counsel for the Commonwealth further submitted that, once it is accepted that the failure of Dr Chalmers to diagnose the deceased's condition and to operate upon him at an earlier point of time, although constituting negligence

on his part, did not amount to a novus actus interveniens

negligence and the death of the deceased, 1t was not open to

the learned trial judge to find that the death was caused bv

the negligent omissions of Dr Chalmers. Counsel stated the principle to be that where the subsequent wrongful act, neglect or default is not such as to break the chain of causation between the original wrongful act, neglect or default and the harm complained of (be 1t personal injury or death), the person responsible for the criginal act, neglect or default 1s iiable for the harm complained of and the person responsible for the subsequent act, neglect or default is not liable. In other words, unless the

subsequent act, neglect or default constitutes a novus actus

responsible for that subsequent act, neglect or default, liability for the totality of the harm suffered remaining

It was said that 1n a case where death has not ensued and the injured person is seeking damages for personal anjuries suffered as a result cf two successive acts of negligence andthe later of those acts cannot properly be described as the sole cause of the injuries received, the injured person may recover damages against the persons responsible for each act of negligence. In such circumstances, however, the quantum of damages recoverable against the person responsible for the later act of negligence was said to be limited to the damage resulting from that negligent act. But 1t was submitted that, ina

case where death has ensued, the statute requires, asa

IMAatter of law, that a decision be made whether death was caused by the original or the subsequent act of negligence, it not being open to conclude that the death was caused by both acts. Unless the subsequent act of negligence amounts to a novus actus _interveniens breaking the chain of causation, the only answer which may properly be given to the question posed is that the original act cf negligence caused the death. If, however, the subsequent act of

negligence is such that it breaks the chain of causation, the result is that the death is caused by that subsequent act. In no case 1S it open as a matter of law, so the

argument ran, to hold that the death was caused both by the

In support of these submissions counsel referred to

and relied upon Adelaide Chemical and Fertilizer Co. Ltd. v.

Carlyle (1940) 64 C.L.R. 514, Hogan v. Bentinck West Hartley

Collieries (Owners), Ltd. C1949] 1 All E.R. 588, Thompson v.

Toorenburgh (1973) 50 D.L.R. (3d) 717, Haber v. Walker

C19633 V.R. 339 and Chanman v. Hearse (1961) 106 C.L.R. 112.

All but the last of these cases were, however, concerned only with the question whether there had béen a

new and independent cause of the harm complained of sufficient to break the chain of causation between the eriginal act causing injury and that harm so as to relieve

from liability the person responsible for the original act.

The cases were not concerned with the questions which this

appeal poses whether the person responsible for the

subsequent act, even though that act cannot properly he

characterised as a novus actus interveniens, can be held

liable in damages if that act is wrongful and, if so, the

Carlyle (supra) was an action by a widow in respect of the

death of her husband which was due to septicaemia arising from a streptococcal infection entering through tissue broken down by burns caused by sulphuric acid which came in contact with his legs when the earthenware jar in which it was supplied by the company to the deceased's emplcyers broke while the deceased was taking delivery of 1t from the company's premises. The High Court unanimously rejected an argument that the death of the deceased was not the consequence of the burns he sustained from the acid because 1t was due to a new and independent cause, namely the anfection or the disobedience of medical orders or the want

of proper treatment of the injuries by the deceased and his

wife. The question in Hogan v. Bentinck West Hartley Collieries (Qwners), Ltd. (supra) was whether the incapacity

for work from which the worker (who had a congenital defect

in his right thumb) admittedly suffered was, for the

purposes of the relevant workmen's compensation legislation, properly regarded as resulting from an accident at his work

when the thumb was fractured or, as the arbitrator found, from a subsequent operation upon the thumb, an operation

which was held to have been carried out not to relieve the disability arising from the accident but because of the congenital deformity and to have been ill-acvised. The

arbitrator, not having misdirected himself upon the law and

there being evidence to support his finding that the chain

of causation between the original injury and the incapacity

had been broken, the House of Lords, by majority, dismissed

which the plaintiff, as administrator of his deceased wife's estate, sought damages in respect of her death following a motor vehicle accident caused solely by the fault of the defendant. The wife, who suffered from mitral stenosis, was treated at hosnital following the accident for minor lacerations and aprasions and allowed to leave. Shortly thereafter she developed the symptoms of acute pulmonary oedema which had been induced by the accident. Although taken immediately to hospital her condition was not diagnosed for some time and, in the meantime, treatment was administered which was not the appropriate treatment for her condition. By the time the condition was diagnosed it was

too late to prevent her death. An appeal against the

findings of the trial judge that, as the wife's death was the result of acute pulmonary oedema brought on by the collision, the negligent motorist was responsible and that

the failure to provide the proper treatment (which would almost certainly have saved her life if appiied speedily)

did not constitute a novus actus interveniens so as to

Haber v. Waiker (supra) was, again, a case which considered only the question whether the chain of causation

between the negligent act of the defendant causing a motor

vehicle accident and the deceased's death was broken so as to relieve the negligent motorist of responsibility for the death. In that case the deceased had committed suicide while mentally unbalanced as a result of the serious

while going to the aid of Chapman who had been thrown on to the highway when the car he was driving (negligentiy, as it was held) collided with another vehicle, was struck by a car negligently driven by Hearse and killed. Hearse was sued for damages in respect of Dr Cherry's death. He joined Chapman as a third party seeking contribution or indemnity from him in respect of the damages he might be ordered to

pay to the executor of Dr Cherry. Chapman was ordered to

make a contribution of one-fourth of the damages awarded

against Hearse. Chapman's appeal to the High Court was

An analysis of the issues that arose for decision in those cases and the answers which the courts gave

propositions advanced for the Commonwealth that, ina case where death occurs following two successive acts of negligence, a choice must be made whether the death is caused by the original or by the subsequent negligent act and that, as a matter of law, it is not open to a court to

find that the death was caused by both negligent acts.

Indeed, Chapman v. Hearse (Supra) is inconsistent with such

a principle for the effect of that decision was to hold that the death of Dr Cherry was caused by the negligent act of

Counsel for the Commonwealth sought to distinguish that case on the basis that the negligent acts of both Chapman and Hearse were "essential for the death", that is to say that the death resulted from the injuries received by

the deceased when struck by the motor vehicle driven by Hearse but that the negligence of both Chapman and Hearse brought about the situation in which those injuries were received. In those circumstances the wrongful acts of both Chapman and Hearse could be said to have caused Dr Cherry's

death. But, it was submitted, in a case such as the present

where the injuries received as a result of the first act of negligence were fatal unless appropriate treatment were provided it was that act of negligence that caused the death. This remained the position even though there was a supervening failure by a medical practitioner to provide adequate and proper medical treatment which, if provided, would or may have resulted in the survival of the injured person. In those circumstances, 1t was submitted, ali that could be said of the medical practitioner's negligence was

that it deprived the deceased of a chance to live: it did

It is of the utmost importance in considering this and, indeed, any question arising under the Compensation (Fatal Injuries) Act to keep firmly in mind the words of the statutory provision. In speaking of the cause of the death the provision is not looking to the medical explanation for the death. The effect of the provision is to create a cause of action where none previously existed and 1t, therefore, focuses attention on any wrongful act, neglect or default that may be associated with the death. A cause of action arises only 1f it can be determined that the death was caused by such a wrongful act, neglect or default. There is nothing in that language to require that a single act, neglect or default be identified as "the" cause of the death. What the provision requires is that the whole of the

circumstances surrounding the death be examined with a view

to identifying any wrongful act, neglect or default that can

properly be described as causing the death. The question so

posed 1s clearly one of fact to be decided according to the

"concepts relating to causation that are latent in ordinary

thought and speech" (Haber v. Walker (ibid. per Smith J. at

p.358)). In a case where there are successive acts of negligence, the inquiry will sometimes isolate one or other of those acts as being the sole cause of the death. But we are unable to accept that, as a matter of law, one cannot reach the conclusion in an appropriate case that both acts

caused the death. Nor are we able to accept that sucha

conclusion is only open in a case such as Chapman v. Hearse

(supra) where death would clearly not have resulted if the

Accepting this view of the statutory provision, it is necessary to consider whether there 1s a finding of fact that the death of the deceased was caused by the wrongful neglect of Dr Chalmers and, if so, whether there was evidence to support such a finding. To both of these

questions we think an affirmative answer should be given.

The learned trial judge did not in his reasons for judgment make a finding expressly in terms of the statute

that the death of the deceased was caused by the neglect of Dr Chalmers. What the learned judge found was the Dr

Chalmer's negligence ""contributed" to the deceased's death

but did not amount to a new and independent cause of death so as to put an end to the liability of Ferguson and O'Reilly for the death. But by those findings, read with the further finding that earlier diagnosis would, on the probabilities, have led ta earlier life saving surgery either at Gove or elsewhere, we understand his Honour to be saying that there was a sufficient nexus between the

negligence of Dr Chalmers and the death of the deceased to

satisfy the statutory requirement. We are of opinion that to say that the cause of the deceased's death was the negligent driving of Ferguson coupled with the negligent failure of Dr Chalmers to provide timely and adequate

medical treatment is to state a conclusion that accords with the "concepts relating to causation that are latent in ordinary thought and speech". We are satisfied there was

evidence to support the finding to which we understand his

But in order to succeed in an action against the Commonwealth under the statute it was necessary for the widow to show not only that there had been a breach of duty owed by Dr Chalmers to the deceased but that, had the deceased survived, he would at the date of his death have been entitled to maintain an action against the Commonwealth and recover damages in respect of his injury. The assumption which the statute requires to be made that death

did not ensue gives rise to its own difficulties in a case

where the injuries received as a result of the motor vehicle accident were such that, unless timely and adequate medical treatment was received, death was inevitable. The difficulties are accentuated where, as here, the time interval between the neglect of Dr Chalmers and the death

was comparatively short. Nonetheless that 1s the assumption

For the Commonwealth it was submitted that the deceased, had he survived, would not have been entitled to

recover damages from the Commonwealth for no damage additional to that resulting from the motor vehicle accident flowed from the failure of Dr Chalmers to provide timely and adequate medical treatment. Damage being the gist of an action in negligence, an action against the Commonwealth must, it was said, have failed. There is also the question whether the deceased, had he survived, couid have shown an "injury" within the meaning of that expression in sub-section 7(1) of the Ordinance arising from Dr Chaimers'

These are difficult factual questions which do not appear to have been agitated at first instance. At least

they are not adverted to in the reasons for judgment of the

learned trial judge. However, while acknowledging their difficulty we think that there was sufficient material

before the learned judge to sustain a conclusion that the

deceased did suffer injury and damage by reason of Dr Chalmers' failure so that, had he survived, he would have been entitled to recover damages against the Commonwealth arising from that failure. It is not possible on the material to form a view as to the quantum of such damages. Indeed, they may have been very small. But one is not concerned with the quantum: once it is correct to posit that some damages, however small, could have been recovered by the deceased had he survived, the statutory requirement

is satisfied. It may seem paradoxical that the dependants

of the deceased may be entitled to recover from the Commonwealth a substantially greater sum by way of damages than the deceased could have recovered from the Commonweaith had he survived. However sucha result, if it arises, is referable to the circumstance that the cause of action given

by the Compensation (Fatal Injuries) Act is sui_ generis and

injury and damage by reason of Dr Chalmers' failure to provide timely and adequate medical treatment and the

deceased, if he had survived, would have been entitled to recover damages against the Commonwealth in respect of that

failure, the cause of action provided by the Ordinance was established. For these reasons we think the appeal by the

We turn now to the appeal by Ferguson and 0'Reilly in which an order is sought increasing the proportion of the damages awarded to the widow that are to be paid by the Commonwealth and decreasing the proportion to be paid by Ferguson and O'Reilly. As already mentioned the learned trial judge ordered that of the damages payable to the widow ($178,136) Ferguson and O'Reilly were to contribute $133,608

Northern Territory are sections 12 and 13 of the Law Reform

(Miscellaneous Provisions?) Act. Section 12 provides in

sub-section (1) that the section applies where damage 15

suffered by a person as a result of a tort. Sub-section (4)

"A tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who 1s, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, but no person is entitled to recover contribution under this section from a person entitled to be indemnified by him in respect of the liability in respect of which the

In proceedings for contribution under section 12 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard

to the extent of that person's responsibility for the damage

Because of the finding by the learned trial judge (a finding with which we find no reason to interfere) that the death of the deceased was caused by the wrongful act of Ferguson (for which O'Reilly 1s responsible) and the negligent failure of Dr Chalmers. the servant of the Commonwealth, to provide timely and adequate medical treatment, Ferguson and O'Reilly on the one hand and the Commonwealth on the other were liable to the widow for the

damages payable under the Compensation (Fatal Injuries) Act,

in respect of the death, the damages being proportioned toa the injury resulting: from the death. In such circumstances 1t would seem clear that Ferguson and O'Reilly on the one hand and the Commonwealth on the other were tort-feasors liable in respect of the same damage within the meaning of that expression in sub-section 12(4) of the Law Reform

(Miscellaneous Provisions) Act and that it was a proper case

Having stated that his task was to determine the contributions which the defendants should make to the plaintiff£'s damages onthe basis that the contributions should be just and equitable having regard to the respective responsibility for such damage, the reasons for judgment of

"This is not an easy exercise. It is well established in cases following Pennington v.

Norris 30 A.L.J. 242 €(1956) 96 C.L.R. 10] that questions such as culpability, and the 'dangerousness' of the negligent act fall to be weighed. In cases involving road accidents

such criteria are not difficult to apply. But here I have a case where the defendant

Ferguson by a positive act of negligence and in breach of statutory duty inflicted injuries which were inevitably death producing unless the plaintiff{f's ECsicl] life was to be saved by

early diagnosis and major surgery. The defendant has been found liable because of the delay in surgery - not resulting from any

wilful neglect but by delaying surgery and failing to recognise danger signs until it was too late. Upon my fandings it involved a significant clinical error of judgment. Clearly in my view the negligence of the defendant Ferguson must be classified as primarily responsible. I have already found that the deceased's own negligence contributed

to his injuries and subsequent death to the extent of 20%. I apportion responsibility against the first two defendants to the extent of 60%; against the defendant Commonwealth to

It may be mentioned in passing that his Honour appears to have been in error in referring to Ferguson as having committed a breach of statutory duty but, if it be an error,

Counsel for Ferguson and 0"'Reilly submitted that his Honour farled to attach any significance to the fact that Ferguson's negligence was of a transitory nature whereas that of Dr Chalmers was of a continuing character involving repeated significant omissions extending over many hours. It was also submitted that his Honour failed to attach any significance to the fact that but for Dr

Chalmers' nedligence there was a high degree of probability

that the deceased would have survived his injuries and made

It is clear that the statutory provisions give a very wide discretion to the judge entrusted with the task of making the apportionment. Having regard to the width of

that discretion, the cases in which the apportionment can be

successfully challenged on appeal must pe rare. In A.V.

Jennings Constructions Ptv. Ltd. v. Maumill (1956) 30 A.L.Jd. 100 the High Court had to consider an appeal against apportionment of liability between joint tortfeasors. As to

apportionment of responsibility the High Court said at

"Such a finding, it must be remarked at once, 1s not lightly reviewed by a court of appeal. As Lord Wright observed in British Fame (Owners) v. Macareqor (Owners) ((1943) A.C. 197. at p.201), it is a finding upon a question 'not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may weil be differences of opinion by different minds'. Accordingly re-consideration of the question in the exercise of an appellate jurisdiction is subject to the limitations imposed by the principles which govern all appeals against judgments given in the exercise of discretions, principles which this Court has stated repeatedly in recent cases. Consequently, as Lord Simon remarked in the case just cited at pp.198-199, 'the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge.'"

It is not suggested that his Honour's approach to the question was otherwise than in accordance with established principle. A reading of his Honour's reasons for judgment demonstrates that his Honour had well ain mind the detailed history of the medical treatment afforded to the deceased between the time of his admission'to hospital shortly before midnight on 7 November 1978 and his death at 3.30 a.m. on 11

November 1978 and, in particular, the matters to which counsel

has drawn attention by way of criticism of his Honour's

apportionment. The relative significance to be attached to

those matters in relation to the general question of

apportioning as between the defendants the extent of

responsibility for the damage was a matter for the learned trial judge. We are not persuaded that his Honour fell into

any error that requires the intervention of this Court. His

The Commonwealth must pay the costs of the widow of and incidental to the appeal numbered NIG 4 of 1984, that being the only appeal in which the widow was named as a party. Since the Commonwealth and Ferguson and O'Reilly have been unsuccessful in their respective appeals and as most of the

documentary material and the oral exposition of facts was

common to both appeals, we think that, as between the

Commonwealth and Ferguson and O'Reilly, it is appropriate that

I certify that this and the preceding 35 pages are a true copy of the Reasons for Judament herein of their Honours Mr Justice Woodward, Mr Justice Gallop and Mr Justice