Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Qualao v Government of the Republic of Vanuatu [1999] VUSC 45; Civil Case 146 of 1994 (8 December 1999)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL CASE No. No. 146 of 1994

BETWEEN:

HAROLD QUALAO
of P.O. Box 462, Port-Vila, Efate, Republic of Vanuatu
Plaintiff

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU

First Defendant

AND:

DR. RONALD PEACH
of C/- Vila Central Hospital, Port-Vila, Efate, in the Republic of Vanuatu
Second Defendant

Coram: Lunabek J., Acting Chief Justice

Counsel: Mr. Mark Hurley for the Plaintiff
Mr Ishmael Kalsakau for the Defendants

JUDGMENT

1. INTRODUCTION

By a specially endorsed writ of summons with an amended statement of claim filed at the Supreme Court on 6 August 1998, the plaintiff, Mr Harold Qualao, claimed against the defendant for damages and compensation resulting from the death of the plaintiff’s son, Mr Jack Kapera Nicholson Qualao. In the amended statement of claim, the plaintiff sought:

1. damages under the Fatal Accidents Act (1846-1959) UK;

2. damages under the Law Reform (Miscellaneous Provisions) Act 1934 UK;

3. compensation under the custom law of Ambae;

4. interest; and

5. costs.

The plaintiff is the father of the late Mr Jack Qualao, who died after he had received treatment at the Vila Central Hospital following a sporting injury. The defendant is the Government of the Republic of Vanuatu, which is responsible for public health in Vanuatu and controls the Vila Central Hospital. The initial action was brought against the present defendant as well as Dr Ronald Peach, Port Vila Hospital’s general surgeon, as second defendant. However, by consent, orders were issued to discontinue the action against the second defendant on 8 June 1998, and the present amended statement of claim was presented.

2. FACTS<

The brief facts of this case can be summarised as follows:

On Friday, 27 August 1993, Mr Jack Qualao, who was 1rs old and employed as an assistant chef at a Port Vilt Vila restaurant, was knocked unconscious while playing rugby at Independence Park, Port Vila. He was taken to the Vila Central Hospital shortly after the injury occurred. Mr Qualao was examined by the hospital’s general surgeon, Dr Ronald Peach, who diagnosed an extradural haemorrhage, which, simply put, is bleeding in the brain area. Dr Peach decided that holes should be made in the patient’s skull to remove the collection of blood. Dr Peach did this, and Mr Qualao appeared to improve after the operation. However, the next morning Mr Qualao fell out of bed and hit his head. This necessitated another operation to remove more blood from his brain which was also performed by Dr Peach at the Vila Central Hospital. The operation was not successful and Mr Qualao’s condition became critical. The following morning, Sunday 29 August 1993, he was flown to the Liverpool Hospital in Sydney, Australia, where a specialist examined Mr Qualao and found that his brain had already died. Mr Qualao’s respirator was turned off later that evening and he died.

3. ISSUESS

The issues to be determined by this Court are as follows:

1. Is the defendant through the actions of its servants, ager another people eng engaged by it, liable for the death of Jack Qualao?

In order to prove liability of the defendant, certain elements need to be established.

(i) Did the defendant owe a duty of care to the Plaintiff’s son?

(ii) Was there a breach of that duty?

(iii) Did a material injury result from the breach?

(iv) Was there a reasonable proximate connection between the Defendant’s conduct and the resulting injury;

2. Was there contributory negligence and a voluntary assumption of risk?

3. If the answers to the questions 1 or 2 are in positive, then, the question of quantum of damages will be assessed in respect to each situation.

I now first concentrate on liability issue.

4. SUMMFRY OF THE EVIDENCE

The plaintiff called three witnesses to give evidence. These were himself, his wife Mrs Qualao, and a specialist nurgeon from Australia, Mr Robin Rushworth. The respondent ent relied upon the evidence of registered nurses, Ruth Kaltafara, Edwige Tabi, Veronic Lessy, Kim Joe and Inet Salemalo. Neither Dr Peach nor any other medical practitioner was called.

The plaintiff stated that he and his wife were preparing to go out when they were informed that their son had had a fall at a rugby game and had lost his memory. The informant said that Mr Qualao was better now but that he was at the hospital. Mr Qualao and his wife then went to the hospital. He said that when they arrived their son was lying on a mobile stretcher and there were three doctors, including Dr Peach, nearby. He said that his son smiled at them and talked to his mother. Dr Peach explained that the movement on Mr Qualao’s left side was slower, and that a blood vessel in Mr Qualao’s head had ruptured causing a clot and putting pressure on his brain. The plaintiff said that Dr Peach told him that he would need to operate to stop the bleeding and ease the pressure on his brain, and in his condition, Mr Qualao could not be moved until after the bleeding had been stabilised.

The plaintiff stated that he inquired whether Mr Qualao should be sent overseas for treatment, and Dr Peach told him that it was not necessary, as once the operation was done, he would be fine and the plaintiff would be wasting his money. In addition, Dr Peach said that the hospital needed permission from the Minister of Health, and as it was a weekend, he thought that that would be difficult. The plaintiff said that Dr Peach assured the plaintiff that the hospital could handle this case. The plaintiff stated that he clearly indicated to Dr Peach that if his son needed to go overseas, then he would like that done. However, Dr Peach reiterated that this matter could be handled at the hospital.

The plaintiff stated that before the operation, a nurse had asked the plaintiff whether he wanted a private room for his son, and he indicated that he did. The plaintiff said that he and his wife stayed with their son while his head was shaved on both sides and he was being prepared for the operating theatre. The plaintiff said that his son joked about his weight at that time. The plaintiff and his wife waited outside the operating theatre as the plaintiff thought it would be a short operation, and his wife in her evidence indicated that Dr Peach had told her it was a simple operation. However, a nurse told him that it would take about two hours and that the plaintiff and his wife should go home and come back later.

The plaintiff, his wife and their children came back to the hospital and spoke to their son around 11pm the same evening. Mrs Qualao stated that there was no one present in her son’s room when they arrived. Mr Qualao appeared better, talked about the operating theatre and how he needed more anaesthetic as he could feel what was happening and joked about his hair cut. He said he was hungry but his head was very painful. Mrs Qualao stated that she asked for painkillers for her son, but was told by the nurse that Dr Peach had not given instructions before he left. She also told the plaintiff that his son was not able to eat or drink anything.

The plaintiff stated that he left the hospital with his family around midnight and he came back again after collecting bedding for himself at about 12.15am. The plaintiff said that he sat with Mr Qualao and they talked for a while, however the pain in his head increased, and the plaintiff asked the nurse to call the doctor. The nurse said she had tried, but had not been able to contact the doctor on the number he had given her. About 15 minutes later, Mr Qualao’s pain became intolerable and the plaintiff said that he asked the nurse to try to find the doctor. The nurse returned and stated to the plaintiff that she could not find the doctor, but eventually administered a pethedine injection to Mr Qualao. Shortly after, Mr Qualao told his father that the injection had not helped him and the pain was very bad. The plaintiff relayed this to the nurse who gave Mr Qualao another pethedine injection.

The plaintiff stated that his son had a very bad night, he said that he was restless and was trying to scratch his head. The plaintiff said that Mr Qualao moved around the bed and that three times during the night he asked the nurses for assistance to put his son’s dressing back into place. The plaintiff said that by about 6.00am, his son had calmed down and appeared to be asleep so the plaintiff went home to sleep, sending his wife to sit with their son.

Mrs Qualao stated that she arrived alone at the hospital just after 6:00am on 28 August 1993. She said that she noticed that her son’s head had no dressing and there was blood on the side of his face and on his fingers. When she washed the blood off, her son did not respond at all. She stated that a nurse came in and took his pulse, and that she asked the nurse whether her son was all right. She said the nurse nodded and left. Mrs Qualao stated that she left the hospital at about 8.30am as she thought her son was asleep.

She stated that she returned at 10.30am with the plaintiff. In her son’s room, she saw Dr Peach and other medical staff. She said that one of the nurses advised her that her son had fallen out of bed and that Dr Peach told her that he would need another operation. The plaintiff said that he noticed that temporary rails had recently been attached to the bed with bandage. Dr Peach told the plaintiff that he would have to re-operate as the bleeding was irritating Mr Qualao. The plaintiff and his wife sat with their son who was rapidly becoming restless and agitated. The plaintiff said that his wife went to get the doctor, but could not find him. The plaintiff then went to look but could not find the doctor either. By the time the plaintiff had returned to his son’s room, tears were falling from his son’s closed eyes, so the plaintiff again went to find the doctor.

The plaintiff’s wife said that Mr Qualao was becoming extremely restless and was taking deep breaths. She said that she called for the nurse twice before the nurse came in and saw Mr Qualao’s difficulty in breathing. The nurse massaged his chest and called out for an oxygen bottle. She said that shortly after, Dr Peach arrived and started resuscitation. By the time the plaintiff had found another doctor and brought him to his son’s room, Dr Peach had returned.

The plaintiff stated that at that time he asked Dr Peach whether his son should be sent overseas and Dr Peach replied that no arrangements should be made until after the second operation. He said that Dr Peach stated that the evacuation team would be displeased if they came and were not needed. However, during the course of the second operation the plaintiff unsuccessfully tried to arrange an overseas evacuation. When the plaintiff returned to the hospital, his wife informed him that a doctor, Dr Zachs, wanted to speak to both his wife and him. Dr Zachs told them that while there was very little that could be done for their son, there was a very slim chance. Dr Zachs and Dr Peach then gave the plaintiff and his wife contact numbers for the emergency evacuation.

The emergency flight left for Australia at about 5 am on Sunday 29 August 1993, and the plaintiff and his wife followed at about 8.30am. The plaintiff stated that they went to the Liverpool Hospital in Sydney and sat with their son for a while. He stated that a doctor then told them that a brain specialist has examined Mr Qualao and found that his brain was already dead. Mr Qualao’s uncle arrived from Papua New Guinea that evening and Mr Qualao’s respirator was then turned off.

The plaintiff and his wife stayed the night at the hospital and identified their son’s body the following day for the coroner.

The plaintiff was very definite that the nurse offered the private room and that he had not requested it. He stated that he left it to the knowledge of the nurses as to which room would be best for his son. The plaintiff was also very definite that no nurse had ever said to him that his son should be attended at all times. He also very clearly denied Nurse Tabi’s statement that she had told him that he was not to leave his son unattended. He said that during the night, there was not a single time when a nurse came into the room without being asked and that the door was closed all night. Mrs Qualao was also adamant that no nurse had told her to advise if she was leaving.

In her evidence Nurse Ruth Kaltafura’s stated that she was on duty when Mr Qualao was admitted. She stated that another nurse, Nurse Inet Salemalo, had told her that Mr Qualao’s parents had requested a private room. She said that she prepared Mr Qualao for the operation but that she only shaved one side of his head, and denied Mrs Qualao’s claim that she asked the nurse shaving her son’s head why both sides were being shaved. She stated that she took Mr Qualao’s observations at 10.30pm, but recorded them in the 10:00 o’clock slot on the chart. She stated that she was in the room at 10.30pm when Mr Qualao returned from theatre and that the plaintiff and his wife were there at the time, however no conversation took place. Both the plaintiff and his wife deny that any nurse was present when they returned with the family.

In her evidence, Nurse Edwige Tabi, stated that she arrived on duty at about 10.30pm on the night of 27 August 1993. She could not recall who else was on duty, nor could she recall which nurses were going off duty. She stated that she and the other nurse on duty were briefed by the outgoing shift who reported that Mr Qualao must have close observation. She said that she checked Mr Qualao hourly, just to see how he was. Nurse Tabi said that she noticed that either the plaintiff or his wife could be seen attending to their son who had been placed in a private room at the request of the Mr Qualao’s parents. She stated that "we nurses", although she did not mention which nurses, had formed the view that Mr Qualao should be in the ICU room which is close to the nurses’ station.

She stated that during one of her hourly visits to Mr Qualao’s room, she had said to his father that Mr Qualao was not in "a normal condition" and that "someone must be awake and attending him." She stated that she said to the plaintiff and the plaintiff’s wife that one of them must remain with their son as the nurses would not be able to attend to him all night because of other patients. She also stated that she told the plaintiff and his wife that if they both wanted to go, then they must inform the nurses so that the nurses could attend to Mr Qualao. Both the plaintiff and his wife vehemently deny any such conversation.

She continued to say that as Mr Qualao could not talk, he was not able to tell anyone that he was in pain. She said that the only way they could suspect that he was in pain was that he was crying and twisting and turning in his bed. She said that during her hourly observations, she saw that Mr Qualao was in pain and took his observations. She said that she gave him a pethedine injection to which he responded well. She stated that some time later she again noticed that Mr Qualao was in pain. She stated that she took observations at 1.35am and again administered Pethedine to Mr Qualao who responded well to the injection. She stated that she took Mr Qualao’s last observations at 6.00am on the morning of Saturday 28 August 1993 and went off duty at 7.30pm. She stated that patients are normally checked six hourly, but in certain serious cases, the patient’s doctor will advise on how often the patient should be checked. She said that she believed that they were advised by Mr Qualao’s doctor to check him on a four-hourly basis, which they did.

Nurse Tabi stated that if a patient is placed in the ICU, a nurse must stay with that patient at all times and that it is the doctor who decides which patients go to the ICU.

The plaintiff’s evidence conflicts with Nurse Tabi’s in that he said that he had conversations with his son, and that his son told both him and his wife about the pain he was suffering. The plaintiff also stated that no nurse came into the room, whose door was closed, unless specifically asked.

In her evidence, Nurse Veronique Lessy stated that on the Saturday morning, Mrs Qualao and two other women were with Mr Qualao at 7.45am. She also stated that Mr Qualao had fallen out of bed between 7.45am and 8.00am. She said that when she put him back into bed, she took his observations and she then notified Dr Peach and Michel Kalotiti.

Nurse Kim Joe also recalled that Mr Qualao fell out of bed at about 8.00am. She stated that she took observations and that they were all right, except his blood pressure had gone up a little. She stated that after the second operation, Mr Qualao was placed in the ICU and she stayed with him until 4.30pm when her shift ended.

In her evidence Nurse Inet Salemalo, stated that the plaintiff had requested that his son be placed in a private room before the first operation. However, the plaintiff strongly denied that he requested a private room.

Mr Qualao’s Clinical Chart, Fluid Balance Charts and Controlled Drug Register entries for the time he was in Vila Central Hospital were exhibited by the defendant. The Clinical Chart is very sketchy, with only three entries for temperature and two for blood pressure and pulse graphed. The Fluid Balance chart dated 27 August 1993 shows three complete observation entries, being at 6:00pm, 10:00pm and 2:00am and a partial entry at 6:00am. This chart also records pethedine injections at 11:50pm and 1:35am . The doctor’s instructions on both of the charts indicate four-hourly observations and pethedine to be administered on the patient’s request. The Fluid Balance Chart dated 28 August 1993 shows observations of pulse and blood pressure at 10:00am, 11:00am, 3:45pm, 4:00pm and 5:00pm. It also shows the application of suction at 4.30pm and collection of urine at 5:00pm as well as a check of the dilation of the pupils at 11:00am. The Controlled Drugs Register shows three entries relating to Mr Qualao all for pethedine. The first was at 11.45pm on 27 August 1993, the second at 1:30am on 28 August 1993 and the third at 10:00am on 28 August 1993.

The defendant also exhibited a Nursing Care Report . This is a very scanty overview of the Friday and Saturday. There was no mention on any chart of the restlessness of the patient, nor the fact that his bandage had to be reapplied three times by nurses during the night.

Mr Ronald Rushworth, a neuro-surgeon from Australia gave evidence. He stated that in Vanuatu, it appears that the most basic neurosurgical items are not available, and that when general surgeons are called upon to operate on neurosurgical emergencies, they can only do their best. He stated that Mr Qualao’s condition was properly diagnosed, and that a surgeon has only one or two hours to operate to remove the blood from the brain. He said that Dr Peach was correct in operating, and that it would not have been possible to evacuate Mr Qualao to another country with a neurosurgical unit within the time available to remove the blood from the brain. He said that while the operation chosen by Dr Peach was not ideal from a neurosurgical point of view, it was effective as Mr Qualao improved after the operation.

He stated that it appeared to him that Mr Qualao was returned to the ward without proper nursing supervision. He stated that he considered 4 hourly observations to be inadequate, and he considered that continuous observation and the recording of half hourly to one hourly observations would be appropriate in conjunction with continuous nursing supervision. He said that parents are not able to determine the needs of a patient, and do not know what to do to care for them in these situations. Mr Rushworth stated that things can go wrong very quickly in these situations and he considered that something untoward could happen in the interval between a half hourly observation and a four hourly observation. He clearly stated that if the surgeon decided that observations should be carried out four hourly instead of half hourly, it could not be considered a less serious condition. He indicated that it is common in post-operative surgery neurosurgery for patients to be restless and the cause is hard to assess. Mr Rushworth said that he considered that when Mr Qualao was found on the floor and evaluation by Dr Peach, his condition was then past the point where he could be rescued. He indicated that his comments were not a reflection on the nurses themselves, but were directed at the way the system was organised.

5. FGS ONGS ON DISPUTED FACTS

In assessing the evidence brought before me, I notice that there are a number of areas of conflict in the evidence of the plaintiff and his wife, and the nurses. Nurse Salemalo stated that the plaintiff had particularly requested a private room, whereas the plaintiff categorically stated that he was offered a private room and accepted on the premise that the nurse would know which room would be best for his son. Nurse Tabi stated that she had a particular conversation with the plaintiff and his wife, however they deny ever having had such a conversation. Nurse Tabi stated that she checked Mr Qualao every hour, however the plaintiff stated that no nurse came into the room unless specifically asked. The Plaintiff also stated that the door was closed all night, but Nurse Tabi stated that at times it was open and at times it was closed. Nurse Kaltafura stated that she shaved only one side of Mr Qualao’s head, however Mrs Qualao clearly remembers asking her why she is shaving both sides. The fact that both sides were shaved is confirmed by the Coroner’s Report. Nurse Kaltafura also stated that both the plaintiff and his wife were in the room at 10.30pm when Mr Qualao was brought back from theatre, but they stated that they did not return until 11:00pm, and there was no nurse in the room at that time.

There were other areas of conflict. The doctor’s notes indicate that Mr Qualao fell out of bed at 9.45am which would be consistent with the scene that the plaintiff and Mrs Qualao describe greeted them on their return to the hospital at 10.30am. Both Nurse Lessy and Nurse Joe stated that the fall took place at around 8:00am. There are also considerable discrepancies between what nurses stated in evidence and what was recorded in the hospital charts.

Upon assessing the evidence, I consider the evidence of the plaintiff and his wife to be more credible than that of the nurses. This is not to say the nurses are lying, however a long time had passed before they were required to recall the events surrounding Mr Qualao’s death, and it is not feasible to believe that these events would remain clearly with the nurses for two years. The parents, on the other hand, would have a very strong memory of the last days of their son’s life.

The nurses’ statements indicate a small number of staff to cope with surgical patients, which forms an extremely heavy workload in a work intensive area. The charts show that they were given instructions by the doctor to check Mr Qualao four hourly and the nurses clearly state that they are expected to follow the instructions of the doctor. In addition, it appears that it is hospital policy that the doctor decides whether a patient is to go to the ICU or not and in this case there was no instruction given by Dr Peach for this to happen even though Mr Qualao was a head injury case.

However, the authenticity of the record keeping by the staff must be questioned in light of the conflicting evidence given by staff.

6. SUBMNSSIONS OF BOTH PARTIES

(a) The plaintiff’s submissions

The plaintiff submits that the defe through the actions of its servants, agents or other people engaged by it was guilty ilty of negligence. There is no evidence to sustain a defence, and it is no defence that the nurses followed Dr Peach’s instructions. The defendant admitted that it employed or engaged all staff at the hospital including Dr Peach. Although the case against Dr Peach was discontinued, the defendant is still liable for Dr Peach’s negligence.

The plaintiff submits that the defendant’s system was also at fault in that it should have ensured that:

• Jack Qualao was subject to 24 hour nursing supervision in the ICU or 24 hour supervision in a private room;
• Half hourly or as a minimum, one hourly observations should have been carried out and recorded;
• A suitable system was in place to provide for emergency access to doctors and specialists on 24 hour call.

The plaintiff submitted that these omissions led to the situation where Mr Qualao fell out of bed and suffered the fatal injury.

In support of his submissions, the plaintiff relied on Lord Denning’s judgment in Cassidy v Mininstry of Health¹, where he stated that where a person is under a duty of care, he cannot dispose of his responsibility by delegating the performance of it to someone else, regardless of whether the delegation is to a servant under a contract or an independent contractor . The plaintiff also relied on Lord Greene’s comments in Gold v Essex County Council² , where he stated that where a defendant treats patients, it also has an obligation, and is liable if the people employed by it to perform this obligation act without due care. It cannot assume no greater responsibility than to provide a skilled person and proper appliances. The judgments in both Cassidy’s case and Gold’s case were applied in Roe v Minister of Health.³

Dicta in Lord Green’s judgment in Gold’s case at pp. 301-2 were also cited in Collins v Hertfordshire County Council.⁴ In this case, it was held that the hospital authority was liable for its negligent system.

In Commonwealth of Australia v Introvigne⁵ the High court of Australia applied Lord Denning’s dicta at p.363 in Cassidy’s case and Lord Greene’s observation in Gold’s case at p.304 together with the ratio of Collins’ case and Roe’s case.

The plaintiff submitted that applying these cases to the evidence shows that the defendant was responsible for Dr Peach’s decision not to place Mr Qualao in the ICU and under constant nursing supervision, and that the defendant is liable for its negligence as pleaded in paragraph 7 of the Amended Statement of Claim.

About the issue of insurance, the plaintiff submitted that it is irrelevant and is no defence. To support this submission, the plaintiff relied on Boreham J’s comments in Van Oppen v Clerk of the Bedford Charity Trustees⁶ where he stated that a school which allowed its students to play rugby was not obliged to insure, not even against negligence. He further stated that even parents had no duty to insure. The plaintiff further submitted that although in Vanuatu, parliament has imposed a duty to insure under the Road Traffic (Control) Act [CAP 29], s. 41(1), there is no relevant statutory duty to insure on the present facts.

(b) Tfendanendant’s submissions

The defendant relied on three main submissions.

1. there was no negligence on the part ofnurses of the hospital in s in supervising the recovery of Mr Qualao after the first operation;

2. any negligence attributable to the death of the plaintiff was caused solely by the plaintiff and his wife;

3. it is not possible for the plaintiff to maintain an action against the defendant as the government could not have undertaken in any way to be responsible for the way in which doctors or nurses employed by it performed their duties.

The defendant argued that it could not have been foreseen that Mr Qualao would fall out of bed. However, the plaintiff was expressly told that Mr Qualao could not be left unattended and if either he or his wife were intending to leave the patient, they should informed the nurses so that a nurse could remain with him, even though the only instruction given by the surgeon was four hourly routine observations. The defendant argued that a secondary insult to his initial head injury is often fatal even in a specialised neurosurgical hospital, and the expert opinion of Mr Rushworth indicated that in such circumstances, mortality more than doubles.

The defendant submitted that even when the questions of duty and causation are answered in favour of the plaintiff, then remoteness of damage must be considered. The defendant submitted that Roe v Minister of Health⁷ indicates that the ability to foresee the consequences may be vital, but is decisive where there is intervening conduct by other persons. It is disregarded when the negligence is the immediate or precipitating cause of the damage. The defendant relied on the comments of Lord Denning who says that even when duty, causation and remoteness of damage are taken singly, they can only be determined by applying common sense to the facts of each particular case.

The defendant argued that here is a natural feeling that the family should be compensated for the tragedy, however as Lord Denning stated in Roe’s case, "[B]ut we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors [and nurses] would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point but we must not condemn as negligence that which is only a misadventure".

The defendant also relied on the words of McNair J in Bolam v Friern Hospital Management Committee⁸ "…you must not look through 1957 spectacles at what happened in 1954". The defendant argued that we should look through 1998 spectacles at what happened in 1993, and if we did look through sophisticated "western" spectacles at what happened at the Vila Central Hospital, it would be a grave injustice

The defendant submitted that it could not be held responsible for the manner in which Dr Peach performed the operation, how he delivered his post operative instructions to the nurses and how the nurses were expected to supervise the patient. The defendant argued that this would open the flood gates to litigants to readily sue the government for everything that goes wrong in a hospital.

To support this argument, the defendant relied on Hillyer v St Bartholomew’s Hospital⁹ where Kennedy LJ said that he did not consider it a proper legal inference that the hospital authority is liable in damages for members of its professional staff, whose competence is not in question but who act negligently in the treatment of patients and use of apparatus. He continued to say that he would be prepared to hold that the hospital authority is legally responsible to the patients for the performance of their servants within the hospital of their purely ministerial or administrative duties.

The defendant referred to Swift J’s comments in Marshall v Lindsay County Council¹⁰. He said that the Committee of the hospital contracts with a patient to provide a hospital, that is a building with domestic staff to run it. He commented that they also contract that they will employ or engage competent doctors and nurses, but they do not undertake to be responsible for the way the doctors and nurses perform their duties because these are skills and cannot be controlled by the committee. Therefore, he said, the committee is not responsible for any negligence doctors and nurses may be guilty of in their duties.

The defendant submitted that the government could not possibly supervise or control the actions of Dr Peach and the nursing staff, and therefore were not liable. The government could not be responsible for matters of skill and care within the competence of the surgeon and the nurses of the hospital.

The defendant submitted that it did not owe a duty of care to Mr Qualao as it could not reasonably foresee that he would fall out of bed. Furthermore, the fall from bed did not arise as a result of the direct act or omission of the nurses on duty at the material time. The defendant argued that there was an intervening omission on the part the Mr Qualao’s mother, which the nurses could not reasonably expect, and that this is not a case of the negligence of the nurses being the immediate or precipitating cause of the damage.

The defendant also argued that the fall from the bed in the circumstances of the surgeon’s instructions was too remote from the nurses’ supervision considering the instructions given them and the impressive initial recovery of Mr Qualao.

7. APPLICATIOCATION OF THE LAW TO THE FACTS AS FOUND BY THE COURT

The defendant in this case is the Government of the Republic nuatu and as such, is responsible for public health inth in Vanuatu and controls the Vila Central Hospital which is the biggest Public Hospital of the Republic.

There is no doubt that doctors, nurses employed by the Vila Central Hospital are the employees of the defendant. As such, I find and hold that the defendant as the controlling authority of the Vila Central Hospital and employer of Dr. Peach and nurses working at the hospital, owes the hospital patients a duty of care.

The question I must consider now is whether the defendant breached its duty through the actions/omissions of its servants, agents or other people engaged by it.

It seems to me that even a lay person must consider any sort of internal head injury to be serious. As a physician, Dr Peach must have appreciated the risks involved in placing holes in a person’s skull and the ramifications of a second injury to that same site. The nurses, in their evidence, state that only the doctor has the power to place a patient in the ICU. Regardless of whether the plaintiff requested a private room or was offered a private room, it is for the doctor to ensure that proper supervision is given post-operatively, and I find that Dr Peach did not give instructions for adequate postoperative care in these circumstances. As an ICU was available at the hospital, it is reasonable to expect Mr Qualao should have been placed in it, where his progress could be continuously monitored. Four hourly postoperative observations appear to be totally unreasonable under the circumstances.

The evidence shows that while there was an initial improvement in Mr Qualao’s condition, it rapidly deteriorated during the night. The nurses were not able to initially contact Dr Peach, however did manage to speak to him early in the morning to check whether another dose of pethedine so close to the first one was appropriate. Although he had the opportunity to review his instructions at this time, especially as he had been informed that Mr Qualao was in extreme pain, he did not do so. It appears that the next contact Dr Peach had with Mr Qualao was when he was called to attend to him after he had fallen out of bed, which was mid-morning.

While Dr Peach cannot take responsibility for the lack of the special equipment required to treat head injured patients, he must take responsibility for the post operative care assigned to Mr Qualao. Dr Peach must also take responsibility for his careless attitude towards Mr Qualao as his condition worsened.

The authorities put before me by the plaintiff persuade me that the hospital is responsible for Dr Peach’s actions. The Court of Appeal in Cassidy v Ministry of Health¹¹ applied Gold v Essex County Council¹² where it was found that a hospital authority is liable for the negligence of doctors and surgeons employed by it under contract, and Lord Denning extended that decision further in Cassidy’s case by finding that the hospital authority is liable for the negligence of professional men whether they are employed by the hospital or under a contract for services. Both of these cases have been applied further in England and in Australia. I have no difficulty to be guided by these persuasive authorities and applied then in this present case and I so rule.

While the nurses at the hospital are under the doctor’s supervision in postoperative care, they cannot escape their professional responsibility. Their records do not match their evidence to this court and the records are scanty in the extreme. In their professional capacity, they must have known that head injured patients need constant supervision, and care must be taken that they do not injure themselves again as the chances of recovery from a second injury dramatically decrease. Mr Qualao’s restlessness after the initial operation was brought to the attention of nurses and yet nothing was done to ensure that a second injury was avoided. It is ironic that rails appeared on Mr Qualao’s bed after he had fallen out of bed. I am mindful of the limited number of staff and the heavy workload at the hospital, however this does not exonerate any nurse from his or her duty. I find that the hospital is responsible for the standard of nursing care in that section of the hospital.

I reject the defendant’s submissions that the defendant could not have been responsible for the way in which doctors and nurses employed by it performed their duties. The defendant directs me to the decision in Hillyer v St Bartholomew’s Hospital.¹³ Since 1909 when this decision was handed down, this decision has been soundly criticised. Lord Greene discussed the case in Gold’s case and found that a hospital authority is liable for the negligence of its servants, and this has been applied in several judgments since. Lord Greene also criticised the court’s reliance on the judgment in Hillyer’s case in the case of Lindsay County Council v Marshall¹⁴

The plaintiff submits that the system in place at the hospital led to this tragic situation. The nurses state that only doctors can order patients to be placed in the ICU. The nurses gave evidence that when the plaintiff requested them to call the doctor during the night as his son’s condition deteriorated, they were not able to contact him. It is not unreasonable that nurses be given the power to make decisions about the use of ICU when a doctor is not available and they are concerned about the welfare of a patient. In addition, the hospital must ensure 24-hours access to doctors in situations where modern facilities are not available and operations such as these have been performed. If access to doctors is already available in emergency situations, then it appears that the system of calling them is not efficient. I am persuaded by the authority of Collins v Hertfordshire County Council and another¹⁵ that a hospital is responsible for its negligent system and I therefore follow and apply in this case.

I reject the defendant’s submissions that it did not owe Mr Qualao a duty of care as it could not reasonably foresee that he would fall out of bed, nor do I accept that Mrs Qualao’s actions could be an intervening factor that the nurses could not reasonably expect. I reject also the submission that the fall was too remote.

The defendant relies on McNair J’s words in Bolam v Friern Hospital Management Committee¹⁶ which were "…you must not look through 1957 spectacles at what happened in 1954." Counsel for the defendant extends this to say that we must look through sophisticated "western" spectacles. I find that the facts of Bolam’s case can be distinguished from the facts in this matter. In that decision, McNair J. was referring to progress in the very controversial area of the practice of electro-convulsive therapy in mental illness. In that context, it appears that McNair J was reminding the jury that many advances had been made in the area between the incident happening in 1954 and the matter being heard in 1957. In this present case, no controversial treatment was administered, in fact, Mr Rushworth gave evidence that as a specialist in the field, he considered Dr Peach’s diagnosis to be correct, and while not ideal, the treatment given was appropriate. It was the lack of postoperative supervision that led to the incident. I cannot see that expecting postoperative care appropriate to the seriousness of the operation is "looking through sophisticated western spectacles".

I reject the defendant’s argument that to find the defendant liable would "open the floodgates to litigants to readily sue the government for everything that goes wrong in a hospital". The duty of this court is to administer justice according to law not to guard the public purse or reputation.

I further find and hold that there is no evidence to establish the existence of a contributory negligence and a voluntary assumption of risk by the plaintiff or his wife.

Accordingly, my answers to the questions posed in respect to the defendant’s liability are as follows:

(a) question 1(i): Did the defendant owe a duty of care to the Plaintiff’s son?

Answer: Yes.

(b) question 1(ii): Was there a breach of that duty?

Answer: Yes.

(c) question 1(iii): Did a material injury result from the breach?

Answer: Yes.

(d) question 1(iv): Was there a reasonable proximate connection between the defendant’s conduct and the resulting injury?

Answer: Yes.

Question 2: Was there contributory negligence and a voluntary assumption of risk.

Answer: No.

Accordingly, I find the defendant responsible for the negligence of its servants and agents and responsible for the systems in place at the hospital which lead to the death of the Plaintiff’s son, Jack Qualao.

The Plaintiff is therefore entitled to damages to be assessed and I so rule.

Order

1. The defendant is, through the actions of Dr. Peach and nurses employed at the Vila Central Hospital, liable for the death of the Plaintiff’s son, Jack Qualao.

2. The Plaintiff is entitled to damages.

3. The quantum of damages need to be assessed and both parties are required to attend this Court on 15 February 2000 at 2.00pm o’clock for direction hearing as in order to ascertain how the assessment hearing will be conducted.

DATED AT PORT-VILA, this 8^th DAY of DECEMBER, 1999

VINCENT LUNABEK J
Acting Chief Justice

ENDNOTES:

1. [1951] 2 KB 343 at p.363
2. [1942] 2 KB 293 at p.304
3. [1954] 2 KB 66 at pp. 82 and 91.
4. [1947]1 KB 598
5. [1981-1982] 150 CLR p. 258 at p. 270
6. [1989] 3 All ER p.389
7. [1954]1 All ER p.134
8. [1957] 2 All ER p.118 at p.122
9. [1909] 2 KB p.820
10. [1935] 1 KB p.516
11. note 1 above
12. note 2 above
13. note 8 above
14. note 9 above
15. note 4 above
16. note 7 above