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Manu v McCaig [2006] FJCA 8; ABU0048.2005S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0048 of 2005S
(High Court Civil Action No.HBC 344 of 2002L)

BETWEEN:

ABHI MANU
Appellant

AND:

EDDIE McCAIG
Respondent

Coram: Scott, JA
Stein, JA
Ford, JA

Hearing: Friday, 17 March 2006, Suva

Counsel: Mr C. B. Young for the Appellant
Mr S. Banuve for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

[1] This is an unfortunate case. The appellant, Abhi Manu, awoke from an operation for a slipped disc with spinal cord damage which totally disabled him in urinary, bowel and sexual operation. He sued the respondent, Eddie McCaig, for damages for negligence, breach of fiduciary duty and a breach of section 54 of the Fair Trading Decree 1992. He was unsuccessful on all of his causes of action and Finnigan J. entered a judgment for the defendant.

The Facts

[2] The appellant had met the respondent socially. He suffered persistent back pain. The respondent told him that it could be cured by an operation he could perform in Fiji. The pain worsened and the appellant was hospitalised in Lautoka. There he was visited by the respondent and a group of doctors and students. One morning the appellant awoke in severe pain and could not move. He was transferred by ambulance to CWM Hospital, a public hospital in Suva.

[3] Following his arrival a myelogram was performed. He was apparently asked to sign a consent form, which he did although in great pain. The form has been lost. The appellant was taken to the operating theatre the next morning. The respondent a surgeon, told the appellant he would do the operation.

[4] As we have said, following the operation the appellant was unable to urinate or express faeces because of damage to his spinal cord.

[5] The respondent gave evidence of the operation. He said that he was the senior surgeon present at the operation on the appellant’s L4 and L5 vertebrae. There were two other surgeons who performed the operation with him but he was supervising them and took responsibility. It was an agreed fact that the respondent conducted the operation. He explained the operative procedure, in particular how the surgeon moves the nerve root aside to get through to the disc and the front of the vertebra. If the nerves leading to the pelvic region are damaged or cut then that affects the urinary, bowel and sexual function. In a discectomy the surgeon removes only the part of the disc which is pressing on the nerve and causing the trouble.

[6] Covering the spinal cord is the dura. This was torn in the operation. The tear was 1-1.5cm long. The respondent said that this was a complication which was rectified by a fascia patch which he applied. Tearing of the dura is one of the risks in the operation. Results of a torn dura can include fluid leaking into the spinal canal and bleeding from around the spinal cord.

[7] The respondent said that the nerves to the pelvic organs come from the lumbrosacral plexus of nerves. In relative terms they were operating far away from the plexus of nerves. Using a metaphor, he said one was at Suva and the other at Nadi.

[8] The respondent further said that the complication suffered by the appellant was totally unexpected and if there had been nerve damage during the operation they would have recognised it. The operation was straightforward and he was surprised when he returned from overseas to hear of the appellant’s condition. Finnigan J. said that the respondent’s evidence was that the appellant’s condition can be caused by "a cut too far" but was adamant that this had been ruled out by a MRI scan subsequently performed in New Zealand.

[9] In evidence were reports from the New Zealand specialists. Mr Howie, an orthopedic specialist, gave several reports. He said that the appellant’s persistent bladder, bowel and sexual dysfunction was likely to have been caused by an injury to one or more sacral nerves. This injury was likely to have been sustained at the time of the discectomy. Damage was likely to be permanent.

[10] A pre-hearing medical assessment in April 2005 revealed that the appellant was still unable to urinate spontaneously, was still evacuating his bowels manually and was still impotent.

[11] The appellant and his wife gave evidence of the serious impact of his continuing disabilities on his work, family and social life.

The Judgment

[12] His Lordship said that the cause of the appellant’s condition was the sacral nerve injury. He noted that Mr Howie’s opinion was that it occurred during the operation. He asked rhetorically how did it occur? His answer was that there was absolutely no evidence.

[13] Finnigan J. noted the causes of action including the claim that negligence had been proved. He noted that the appellant relied in the alternative on the doctrine of res ipsa loquitur placing the onus on the respondent of proving that what occurred was not negligent. His Lordship rejected the appellant’s claims of breach of fiduciary duty and under the Fair Trading Decree.

[14] The learned judge said that this was not a case for the application of the doctrine of res ipsa loquitur. In explaining why he so found he said that he had no doubt that the appellant’s condition occurred during the operation. This is an important finding and one based in the evidence.

[15] The Judge then said:

"What then occurred during the operation? Some nerves supplying the pelvic region were damaged. How did that occur? The defendant agreed that if they had been cut or damaged, then the surgeon had gone too far. He said the MRI proved that there was no cut. The evidence (mercifully) is of damage only. The Defendant said in evidence and in the letter cited above that what occurred was totally unexpected, it is certainly a complication that is recognized, but that the operation in this case was straightforward and he was surprised to learn of what had occurred when he returned from overseas. What evidence is there of negligence for the Defendant to rebut?"

[16] His Lordship continued that before the doctrine can be applied it is necessary that there be a finding that the event would not ordinarily have occurred unless there had been negligence. He said "Put... quite simply there must be a prima facie case before the defendant is required to explain."

[17] His Lordship concluded this part of his judgment by saying:-

"The step I am asked by Counsel to take is to infer from the fact of nerve damage a conclusion that, more probably than not, to damage nerves during this operation was negligent. All the evidence I have about this, such as it is, was given the Defendant. There is nothing in any of the specialists’ reports upon which I can base a finding that the intra-operative damage to one or more sacral nerves arose out of negligence or lack of due care. The Defendant himself spoke of the risks of the operation as being numerous and he mentioned death from anaesthesia (one in ten thousand), infection, pain, scarring, tearing of the dura and recurrence of the prolapse. Naturally he said nothing about any risk of negligence on the surgeon’s part. He said that the Plaintiff’s condition was a known risk of the operation. When that risk turns to reality is it because of negligence on the surgeon’s part? Or is it because of rare and unavoidable misadventure? I cannot say, there is no evidence. Unless I can take that step, I cannot apply the doctrine of res ipsa loquitur."

[18] Finnigan J. turned to the case on fiduciary duty and in effect said that the case had not been made out. The Judge also referred to the operation being an emergency and he doubted whether a fiduciary obligation arose in the respondent in such circumstances.

[19] The Judge concluded by saying that the evidence did not establish that the damage to the sacral nerves during the operation ordinarily would not occur absent negligence.

Appellant’s Case

[20] The appellant submits that this is a case where there must be an inference of negligence given the accepted facts.

[21] The appellant further submits that the doctrine of res ipsa loquitur can be applied to the circumstances since there was negligence proved by inferential reasoning Schellenberg v. Tunnel Holdings Pty Ltd. [2000] HCA 18 at 37. It is submitted that his Lordship was in error in the application of the doctrine when he thought that the appellant had to prove by evidence that the damage to the nerves was not the result of rare and unavoidable misadventure. The appellant submits that his Lordship misapplied Cassidy v. Ministry of Health [1951] 1 All ER 574 at 588. In effect, Finnigan J. reversed the need for an explanation.

Respondent’s Case

[22] The respondent submits that the trial judge was correct in finding that negligence was not established and there was no occasion to apply the doctrine of res ipsa loquitur. The respondent asserts that it is necessary that the appellant establish that lack of due care on the part of the respondent led to the damage. This was not done. The respondent submits that he did not admit that damage, cut or otherwise, had occurred, nor did he say that it would have constituted negligence.

[23] The respondent says that at most one may infer that a complication may have arisen from the surgery, but there is no evidence that this occurred due to the negligence of the respondent.

[24] A mere unfavourable result (even a fatality) from a disc operation is not synonymous with negligence. The trial judge was correct in not inferring a prima facie case of negligence.

[25] The respondent submits that the judge was correct to find that there was insufficient evidence to find misleading and deceptive conduct. As to the claim for breach of fiduciary duty, the respondent submits that this was an emergency operation and thus no fiduciary obligation arose.

Liability in Negligence

[26] One thing is clear on the evidence, the appellant was not suffering from a damaged nerve before the operation. There would have been numbness in his limbs but he reported no such symptoms.

[27] The crucial fact which was found by the court was that damage done to the pelvic or sacral nerve(s) occurred during the operation. This was the evidence of the New Zealand expert Mr Howie. The MRI in New Zealand mentions "heavy scarring’ to the nerve. The respondent said the sacral nerves were beyond where the operation was taking place. He said "we did not touch the nerve, the covering only and that was repaired." He explained that the disc prolapse was to the side of and beside the nerve. The nerve root is moved to one side. He said, "we work round to the side of it." If there was nerve damage it would have been recognised.

[28] Importantly the respondent said that the appellant’s condition can be caused by "a cut too far." He also said that a nerve can be damaged without being severed.

[29] It is plain that during the operation the sacral nerve(s) was damaged causing the appellant’s condition. The respondent conducted the operation although he did not personally do the closure. He said it was a straightforward operation.

[30] The respondent explained to the court the risks of the operation. For example, one in 10,000 patients die from anaesthesia. Also infection, pain, a tear in the dura which causes a leak of fluid into the spinal canal. There were other risks which he did not specify. Significantly, as the judge noted, he did not include the risk of the sacral nerves being cut or damaged, nor negligence by the surgeon.

[31] There is of course no direct evidence that the respondent cut or damaged the sacral nerve. Indeed, he denied it although he gave no explanation as to how the nerve became damaged. However, we must consider what inferences can properly be drawn. Can the appellant rely on inferential reasoning to prove negligence? Negligence in the respondent may be proved inferentially if there is no explanation of how the nerve was damaged in the operation other than under the hand of the surgeon not displaying reasonable care. Here there is no other possibility on the evidence other then want of care on the part of the respondent. On the probabilities it is likely that there was "a cut too far" by the respondent which damaged the nerve causing the appellant’s condition. There is no evidence that the nerve was damaged by some rare or unavoidable misadventure. Indeed, the respondent gave no explanation of what might constitute a rare or unavoidable misadventure.

[32] In these circumstances it is not necessary to invoke the doctrine of res ipsa loquitur.

[33] We find liability in negligence established on the evidence. The parties are agreed that the action should be remitted to the High Court to assess the damages to be awarded.

Orders

[34] Accordingly the following orders are made:-

(1) The judgment entered for the defendant/respondent should be set aside and in lieu thereof there be substituted a finding on liability for negligence in favour of the plaintiff/appellant.

(2) The appeal is allowed and the respondent is ordered to pay the appellant’s costs in the sum of $1,000.00.

(3) The matter is remitted to Finnigan J. to assess the damages to be awarded to the appellant.

Scott, JA
Stein, JA
Ford, JA

Solicitors:
Messrs. Young and Associates, Lautoka for the Appellant
Office of the Attorney-General, Lautoka for the Respondent