McCaig v Manu [2008] FJSC 4; CBV0004.2006S (22 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0004 OF 2006S
(Fiji Court of Appeal No. ABU0048 of 2002S)

BETWEEN:

EDDIE McCAIG
Petitioner

AND:

ABHI MANU
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday 16th July 2008, Suva

Counsel: Mr S. Sharma ]
Ms V. Chang ] for the Petitioner
Mr C.B. Young ] for the Respondent

Date of Judgment: Tuesday 22nd July 2008, Suva

JUDGMENT OF THE COURT

[1] This is a petition for special leave to appeal to this Court against a judgment of the Court of Appeal delivered on 24 March 2006. That Court set aside a judgment of the High Court of Fiji (Finnigan J) in favour of the petitioner, an orthopaedic surgeon (the defendant at first instance). The proceedings had been brought by the present respondent, seeking damages for injuries and loss caused by the negligence of the petitioner while performing a discectomy on the respondent. A discectomy is the surgical treatment for a ruptured or herniated disc of the lumbar spine. The respondent’s primary case was that he had become totally disabled in his urinary, bowel and sexual functions by reason of the petitioner’s failure to observe the standard of care reasonably to be expected of a surgeon carrying out discectomies.

[2] The Court of Appeal set aside the judgment entered in favour of the petitioner and substituted a finding on liability of negligence in favour of the respondent. The matter was remitted to Finnigan J for assessment of the damages to be awarded to the respondent.

[3] The Court of Appeal observed that the trial Judge had found that the respondent’s disabilities had been caused by damage to his sacral nerve. The Court of Appeal found, as had the trial Judge, that the damage to the sacral nerve occurred during the operation. On the petition to this Court there was no challenge to this concurrent finding of fact.

[4] The Court of Appeal regarded the evidence given by the petitioner himself as important. In particular, he had said that the sacral nerves were beyond the site of the operation and that he had not touched the nerve in the course of the operation. The petitioner had asserted that, if there had been damage to the sacral nerve, it would have been recognised during the operation. Moreover, the petitioner had acknowledged that the respondent’s condition could be caused by "a cut too far" and that a nerve can be damaged without necessarily being severed.

[5] The petitioner had explained at the trial the risks of the operation, such as an adverse response to anaesthesia, infection and a tear in the dura causing a leak of fluid into the spinal canal. The Court of Appeal considered it significant that, as the trial Judge had noted, the petitioner did not specifically include the risk of the sacral nerves being severed or damaged, nor did he advert to the risk of negligence by the surgeon.

[6] The Court of Appeal’s reasoning is, in essence, contain a single paragraph, as follows:

"There is of course no direct evidence that the [petitioner] 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 [respondent] rely on inferential reasoning to prove negligence? Negligence in the [petitioner] 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 than want of care on the part of the [petitioner]. On the probabilities it is likely that there was "a cut too far" by the [petitioner] which damaged the nerve causing the [respondent’s] conditions. There is no evidence that the nerve was damaged by some rare or unavoidable misadventure. Indeed, the [petitioner] gave no explanation of what might constitute a rare or unavoidable misadventure."

[7] The petitioner’s submissions recognised that he must persuade the Court that one or more of the matters specified in s. 7 (3) of the Supreme Court Act 1998 are present if he is to succeed on his application for special leave to appeal. The petitioner’s contention is that the subject matter of the case raises issues of substantial general interest to the administration of civil justice and that it is necessary "to settle the law [relating to] medical negligence in cases in Fiji".

[8] As became apparent in the course of oral argument on the petition, the outcome of the appeal in the Court of Appeal depended not on any contentious principle of law, but on the application of established principles to the specific facts of the case. In substance, the Court of Appeal drew inferences from the findings of the primary facts made by the trial Judge and from the undisputed evidence to reach a different conclusion from that the trial Judge. This led their Lordships to the conclusion that the trial Judge had erred in failing to make a finding of want of reasonable care on the part of the petitioner. While the reasoning of the Court of Appeal is economical and might well have been spelled out in more detail, its conclusion rests upon the inferences to be drawn from evidence that was not in dispute in the appeal to that Court.

[9] It is true that, as the petitioner contends, there was no independent expert evidence adduced on behalf of the respondent at the trial. It is also true that, in general, it is necessary for a plaintiff who is seeking to establish a failure on the part of a surgeon to take reasonable care to ensure the safety and well being of the patient, to adduce expert evidence as to the standard of care reasonably to be expected in the circumstances.

[10] However, in this case the Court of Appeal relied upon the evidence given by the petitioner himself to support the inferences it drew as to the want of reasonable care on his part. The nature of that evidence is important:

• The petitioner maintained that he was not operating close to the sacral nerve. As he explained in evidence:
  

"the nerve to the bladder is at Suva, we were operating at Nadi".

• If there was damage to the sacral nerve, the petitioner would have recognised the damage during the operation. He did not suggest that he had in fact recognised any such damage.
  
• The petitioner accepted that, for the sacral nerve to have been damaged during the operation, he would have had to go "too far."
  
• The petitioner did not specifically claim that damage to the sacral nerve was a recognised complication of a discectomy without any negligence on the part of the surgeon.
  
• The petitioner offered no explanation in his evidence as to how the sacral nerve could have been damaged without negligence on his part.
  

[11] As we have noted, it was common ground on the petition for leave to appeal that the damage to the respondent’s sacral nerve occurred in the course of the operation. Given this fact, in our opinion the petitioner’s own evidence justified the Court of Appeal in inferring that, on the balance of probabilities, the damage to the sacral nerve had occurred because the petitioner went "too far" in the course of the operation and did so without exercising that degree of care reasonably to be expected of a surgeon undertaking an operation of this kind.

[12] It follows from what we have said that special leave to appeal should be refused on two grounds. First, the petition does not present any matter of substantial general interest to the administration of justice. Secondly, we see no error in the conclusion reached to the Court of Appeal.

[13] The petition must be dismissed with costs.

The Hon Justice Keith Mason
Judge of the Supreme Court

The Hon Justice Kenneth Handley
Judge of the Supreme Court

The Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Attorney-General’s Chambers, Suva for the Petitioner
Young and Associates, Lautoka for the Respondent