Author: Jacinta Smith
Judgment date: 18 June 2020
Citation: Hawkins v South Western Sydney Local Health District  NSWDC 308
Jurisdiction: District Court of NSW – Common Law
- Where the plaintiff suffers a materialisation of an inherent risk that could not be avoided, s 5I Civil Liability Act (CLA) is engaged, such that there can be no liability for a failure to exercise reasonable care and skill.
- S 5O CLA can only be relied upon by those practising a profession.
On 17 October 2014, the plaintiff underwent an exploratory laparotomy and Hartmann's procedure for a perforated sigmoid colon at Campbelltown Hospital. On 21 August 2015, the plaintiff was again admitted to Campbelltown Hospital (the Hospital
) and on 25 August 2015, he underwent a laparotomy and adhesiolysis to remove adhesions. The plaintiff claimed that following the surgery, his surgeon directed that his diet was to be "NBM (Nil by Mouth) with ice to suck".
On 29 August 2015, the plaintiff’s diet was changed to "free fluids" following which the plaintiff alleged that he was served a lunch of jelly, ice-cream, yoghurt, apple juice and soup containing chicken solids. The plaintiff claimed that as a result of consuming the meal, he subsequently experienced severe nausea, vomiting and abdominal cramping which he notified to nursing staff. The plaintiff alleged the nursing staff did not notify his surgeon of his complaints until 30 August 2015.
As a result of the vomiting the plaintiff claimed that that he was diagnosed with a dehisced wound (wound rupture). Two staples were removed, and the wound was treated with negative pressure therapy.
The plaintiff claimed that as a result of the Hospital serving, or allowing to be served, food that was incompatible with his diet plan, failing to refer his complaints immediately to his surgeon and delaying diagnosis and treatment of a dehisced wound, he developed a large incisional hernia.
By reason of the incisional hernia, the plaintiff claimed he was unsuitable for reversal of the Hartmann's procedure (surgical resection of the recto-sigmoid colon with closure of the rectal stump and formation of an end colostomy) which has resulted in the need for him to live with a colostomy bag for the remainder of his life and has increased his risk of experiencing hernia rupture, infection and complications.
In respect of the plaintiff's claim in negligence, Judge Weinstein made the following findings:
- For the purposes of s5B of the Civil Liability Act (the Act), Campbelltown Hospital took precautions against the risk that a patient receives a meal that did not comply with dietary requirements. The precautions taken by the Hospital included checking that the soup was compliant when ladled into individual portions and, if not compliant, replacing the soup with a suitable substitute.
- Was unable to make a finding that the plaintiff was served a lunch with chicken pieces or lumps on 29 August 2015 for the following reasons:
- Whilst he considered the plaintiff to be a generally credible witness, his Honour did not accept the plaintiff's evidence in respect of the chicken soup which he found to be unreliable, in part due to the post-operative opioid medication and the plaintiff's own concession that his recollection of the events was not good.
- The uncontradicted evidence of the Local Health District's Director of Nutrition and Dietetics that there was a system in place for the plaintiff to receive the correct diet, with a record of him receiving the correct diet on that day.
- That the plaintiff did not complain to any person about the purported chicken pieces until April 2017.
- That until the hearing of the matter, the plaintiff did not understand a free fluids diet; and
- The clinical records conflict with the plaintiff's evidence.
- That there was no failure to refer the plaintiff to a doctor for examination during the relevant period and calling the resident medical officer at 5.00am on 30 August 2015 was consistent with a reasonable standard of care to be expected.
- That there was no evidence that the plaintiff complained of dry retching and there was no true dehiscence of the plaintiff's wound.
Accordingly, Judge Weinstein found that the defendant was not negligent as alleged in the plaintiff's Statement of Claim.
In terms of causation, Judge Weinstein did not consider that the evidence established causation with respect to the plaintiff's claim. As to the expert opinion, Judge Weinstein ultimately preferred the evidence of the LHD's expert, upper GI surgeon, Dr Arthur Richardson, to that of the plaintiff's expert, Gastroenterologist, Dr Siddharth Sethi.
Statutory Defences s5I and s5O CLA
Judge Weinstein found that the defendant's defence of s5I of the Civil Liability Act
was established. That is, that the inherent risks of infection and incisional hernia were likely to materialise given the multiple factors that made the plaintiff more prone to incisional hernia, such that the identified risks of harm could not have been avoided by reasonable care and skill.
Albeit conceded by the defendant in the Hearing, Judge Weinstein ruled that the defendant's pleading pursuant to s5O of the Civil Liability Act could not be maintained with respect to the allegation that the Hospital provided the plaintiff with inappropriate food, as the person who provided the plaintiff with food was not a person practicing a profession.
Why this case is important
This case is an important example of the Court accepting a defence of inherent risk.
In respect of the surgery performed on the plaintiff, the evidence supported the defendant's s 5I defence, that the inherent risks of infection and incisional hernia were likely to materialise given the multiple factors that made the plaintiff more prone to infection and incisional hernia, in particular his history of previous surgeries and smoking. It was accepted by the court that the identified risks of harm could not have been avoided by reasonable care and skill.
The case is also a good example of the Court accepting, pursuant to 5C of the Civil Liability Act, the evidence of a Local Health District taking a 'cautious and responsible response' to any risk of harm. In this case the Court accepted that the Hospital acted cautiously and responsibly in responding to the plaintiff's risks.