Seibel v The Veterinary Surgeons Board of Queensland
[1997] QDC 260
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- Seibel v The Veterinary Surgeons Board of Queensland[1997] QDC 260
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Seibel v The Veterinary Surgeons Board of Queensland[1997] QDC 260
Seibel v The Veterinary Surgeons Board of Queensland[1997] QDC 260
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | APPEAL No. 101 of 1995 |
BETWEEN:
JEFFREY ROSS SEIBEL | Appellant |
AND:
THE VETERINARY SURGEONS BOARD OF QUEENSLAND | Respondent |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 10th day of October 1997
CATCHWORDS: | APPEAL A NEW TRIAL – nature of appeal – appeal from veterinary tribunal – appeal by way of rehearing on the record – Veterinary Surgeons Act 1936 s. 22H(2). Builders' Licensing Board v Sperway Constructions Pty Ltd (1976) 135 CLR 616 – considered. Re: Schubert [1989] 2 Qd. R. 99 – considered. Bradshaw v. Medical Board of Western Australia (1990) 3 WAR 322 – followed. INFERIOR TRIBUNALS – veterinary tribunal – nature of appeal from – significance of expertise – approach to reasons – Veterinary Surgeons Act 1936 s. 15B. Kalil v. Bray [1977] 1 NSWLR 256 – applied. Politis v. Federal Commissioner of Taxation (1988) 16 ALD 707 – applied. PROFESSIONS AND TRADES – veterinary surgeons – misconduct in a professional respect – nature of negligence constituting – Veterinary Surgeons Act 1936 S. 15E (1)(a); 22F(i). R. v. Scarth [1945] St R Qd 38 – considered. Re Hodgekiss (1959) 62 SR (NSW) 340 – considered. |
Counsel: | B.A. Laurie for appellant |
R.P. Devlin and R.J. Byrnes for respondent | |
Solicitors: | Simmons Crowley & Galvin for appellant |
Crown Solicitor for respondent | |
Hearing dates: | 7 October, 28 November 1996 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | APPEAL No. 101 of 1995 |
BETWEEN:
JEFFREY ROSS SEIBEL | Appellant |
AND:
THE VETERINARY SURGEONS BOARD OF QUEENSLAND | Respondent |
REASONS FOR DECISION - McGILL D.C.J.
Delivered the 10th day of October 1997
This is an Appeal from a decision of the Veterinary Tribunal of Queensland dated 19 July 1995 by which the appellant was found guilty of misconduct in a professional respect and suspended from practice for a period three months. The Appeal is on the grounds that the decision is against the evidence and the weight of the evidence, was wrong in fact, and was wrong in law, the Tribunal applied the wrong standard of proof the penalty was manifestly excessive, and the Tribunal misdirected it self as to the correct approach to making a costs order. The last three of those grounds were not pressed in argument.
Nature of the Appeal
Section 22H(2) of the Veterinary Surgeons Act 1936 (“the Act”) provides that the Appeal shall be by way of rehearing. That expression however is not free from ambiguity in circumstances where there is an Appeal to a court from a decision of an administrative Tribunal: Phillips v The Commonwealth (1964) 110 CLR 347 at 340. For example it has been held that an Appeal to a judge of the Supreme Court under the Radioactive Substances Act which is by that statute an Appeal by way of rehearing is to proceed by way of hearing de novo: Re Schubert [1989] 2 Qd R 99 at 102. A similar approach was adopted in the Supreme Court in Re H (a pharmacist) [1972] QdR 402 and R. v. Gaffney ex parte Builders Registration Board of Queensland [1987] 1 Qd R 90.
The reasoning which has led to a conclusion that the matter should proceed de novo has depended on the propositions that there has been no enquiry or hearing before the administrative decision maker, and there was nothing in the way of a record of proceedings which could be the basis of a rehearing on the record. See Builders' Licensing Board v Sperway Constructions Pty Ltd (1976) 135 CLR 616 at p. 621. In the present case there is in fact a full record, since there is a transcript of the proceedings before the Tribunal, which was conducted in much same way as a trial in a court, and I have also all Exhibits before the Tribunal. It may be however that this is fortuitous, since there does not appear to be anything in the Act which requires such a record to be kept. A charge alleging misconduct in a professional respect is brought by being lodged with the Tribunal for hearing and determination: Section 22G(1). That subsection, and subsection (4), indicate that there is to be a hearing of that charge. Some formality is contemplated in the conduct of a proceeding before the Tribunal because it is deemed to be a Commissioner of Inquiry within the meaning of the Commissioners of Inquiry Act 1950: Section 29. This means among other things that it has the power to receive evidence on oath from witnesses, and this would make it possible to prepare a formal record which could be the basis of a rehearing on the record. The Tribunal is also required to give reasons in writing: s. 33A(1).
In these circumstances it does not seem to me that there is sufficient justification for failing to give the words in section 22H(2) their ordinary meaning. I conclude that the Appeal is by way of rehearing in the ordinary sense, that is to say, is a rehearing on the record. A similar conclusion was reached in Bradshaw v. Medical Board of Western Australia (1990) 3 WAR 322 about an appeal to a court from a decision of a medical tribunal: see esp. pp. 338-9. The position is the same as when the Court of Appeal deals with an appeal from a trial judge. The approach to such an appeal is that laid down by the High Court in Edwards v Noble (1971) 125 CLR 296 at 304 per Barwick CJ, and 318 per Walsh J. See also Uranerz (Aust.) Pty Ltd v. Hale (1980) 54 ALJR 378 at 381. There is also the consideration that the Tribunal is predominately an expert body, since it consists of a Veterinary Surgeon nominated by the Minister and a Veterinary Surgeon nominated by the Queensland Division of the Australian Veterinary Association Limited, as well as a Barrister, Solicitor, Stipendiary Magistrate or former Stipendiary Magistrate who is chairman of the Tribunal: Section 15B(1), (3). In so far as the Tribunal has decided questions where expertise as a Veterinary Surgeon would be relevant, the fact that the Tribunal is to this extent an expert body is a matter which gives some additional weight to its decisions: Kalil v. Bray [1977] 1 NSWLR 256 at 261.
Background
The appellant on 8 June 1993 undertook surgery on the knee of a racehorse “Take A Chance” which had suffered a fracture. Part of the bone was secured by a screw. After surgery the joint became infected, and notwithstanding extensive drug treatment the horse's condition deteriorated. The appellant had supervised the horse after the surgery until 28 June 1993 when he went away leaving his assistant Ms Easton in charge. It was returned to its owner towards the end of July, and he obtained a second opinion as a result of which it was destroyed.
According to the appellant in his evidence in chief he was regularly in attendance at the stables where the horse was trained, and had treated it since at least 31 August 1992. He said that he was first consulted in relation to a problem with the right knee on 15 February 1993, but that he was not then told the history. It was still sore when he saw it again on at least five occasions in March 1993, when it was treated with a variety of injections, and on two occasions in April. He first took x-rays of the knee on 4 June 1993, when he took five x-rays on 3 plates. He said they were all provided to the Board, and had not been returned. The Board and its witnesses were aware of only three on two plates, and the Tribunal found that there were probably 3 plates, and two views on one plate had either not been submitted to the Board or had gone astray, (p. 3) By that stage the horse was in severe pain and it was very difficult to manoeuvre the knee to obtain x-rays.
The appellant said that after he obtained x-rays of the knee on 4 June 1993 he diagnosed a slab fracture, although he also thought there was degenerative change in the cartilage. He recommended euthanasing the horse, but offered surgery as a possible course which was accepted by the owner. The surgery was undertaken on 8 June 1993 assisted by Ms Easton. He took another x-ray on that day, which showed chips of bone in the joint. In the surgery he removed the chips, curetted the bone and damaged cartilage, and bored two holes to secure the slab with a screw. He said the slab was about 15-20mm long, about ½inch or a bit less wide, and up to 5mm thick. He said he used a 2.6mm countersunk stainless steel screw which was 15mm long.
Proceedings before the Tribunal
Following a complaint from the owner the respondent investigated the matter. As a result it brought two charges against the appellant, which were heard by the Tribunal in accordance with the Act. The hearing occupied nine days, between 18 January 1995 and 29 May 1995, when the decision was reserved. Both the Board and the appellant were represented before the Tribunal by counsel.
Nine witnesses gave evidence for the Board: Mr MR Head the owner of the horse, Mr KT Webb its trainer, Mr CF Chandler, a veterinary surgeon specialising in horses with eighteen years experience, who examined the horse on 31 July 1993, euthanased it, and performed a postmortem examination, and who also gave evidence as to proper treatment for such a condition, Dr N Sullivan, a specialist veterinary pathologist, who had prepared a report on the condition of the horse, Dr NJ Kannegieter, the senior registrar in equine medicine and surgery at Sydney University and president of the Australian Equine Veterinary Association, who gave expert evidence as to proper treatment, Mrs CM Dodd, a veterinary surgeon with nine years experience practicing in rural areas predominately on horses, particularly race horses, Mr Wright, the superintendent of the University of Queensland Veterinary Teaching Hospital Equine Unit, an expert in equine medicine and surgery, Mrs JV Wencel, a friend of Mr Head who corroborated his evidence in one respect, and Mr WG Murray the registrar of the Veterinary Surgeons Board who proved some documents. The appellant gave evidence himself and called a further seven witnesses; Ms JM Easton, his assistant, who qualified as a veterinary assistant surgeon in 1992 and was involved in the care of the horse, Ms LM Kennedy, a veterinary nurse employed by the appellant, Dr WB Maguire, an orthopaedic surgeon, Mr AW Chasling, an engineer who gave evidence as to the use of screws to secure bone fractures, Ms KA Wiggan, a veterinary surgeon who worked for a company which supplied inter alia orthopaedic screws about which she gave some evidence, and the appellant's daughter and a cousin of his wife who each gave evidence relevant to the sequence of events.
On 19 July 1995 a published decision was read into the record. The Tribunal made nine specific findings as follows:
- 1.That there is an accepted practice within the veterinary profession as to the taking of specific x-rays for the accurate evaluation of slab fractures to the third carpal bone of horses before surgery and these include a skyline view of the flexed joint as being mandatory.
- 2.That there is an accepted and recommended practice within the veterinary profession as to the type and dimensions of surgical screws to be used in lag screw fixation of slab fractures of the third carpal bone of horses.
- 3.That the Respondent failed to exercise the degree of care and skill expected of an ordinary competent veterinarian in the practice of his profession by failing to take a skyline view of the flexed knee joint of the horse “Take A Chance” before proceeding with the surgery to the knee on 8th June 1993 and also in the selection and use of a screw of inadequate length and diameter for the type of surgery carried out to the knee joint on that date.
- 4.That it is accepted practice within the veterinary profession to carry out intra-operative and post-operative x-rays in relation to surgical procedures involving lag screw fixation of slab fractures of the third carpal bone of horses.
- 5.That there is an accepted practice within the veterinary profession as to post-operative care and management of a horse generally and particularly relating to the expectation as to the affected leg becoming weight bearing after a procedure involving lag screw fixation of a slab fracture of the third carpal bone, including checking and recording clinical data and, where indicated, checking for infection of the surgery site.
- 6.That the Respondent failed to exercise the degree of care and skill expected of an ordinary competent veterinarian in the practice of his profession in that he failed to take intra-operative and post-operative x-rays of the right knee joint of the horse “Take A Chance” before 12th July 1993.
- 7.That the Respondent failed to exercise the degree of care and skill expected of an ordinary competent veterinarian in the practice of his profession in that he failed to adequately check the surgery site for evidence of infection and/or rejection of the screw implanted in the knee joint of the horse “Take A Chance” at surgery on or about 8th June 1993.
- 8.That there is an accepted practice within the profession for the veterinarian who has the care and management of a horse after surgery to keep the owner informed as to the true condition of the horse.
- 9.That the Respondent failed to inform the owner either directly or indirectly at any time after the surgery performed on or about 8th June 1993 as to the true condition of the horse “Take A Chance”.
The Tribunal then found the appellant guilty of misconduct in a professional respect in that he was negligent in the practice of his profession, in respect of the particulars itemised in the findings. They went on to find him not guilty of a second charge, that he was incompetent in the practice of his profession, on the ground that they were not satisfied that the appellant did not in fact possess the requisite skills to have carried out the surgical procedure and post-operative management of the horse to a successful conclusion had he taken more care and exercised his skills competently. In other words, they were not satisfied that he had done the best he could. This was in a sense a more serious charge, since if proved in respect of a veterinary surgeon one would expect it to justify an order that his name be removed from the Register of Veterinary Surgeons, in order to protect the public.
After submissions as to penalty, a suspension of three months commencing on 1 August 1995 was imposed. The Tribunal made an order for costs in favour of the Board based on the Magistrates Court scale of costs, and ordered that they be paid in the sum of $18,156.90, including $4,261.90 by way of witnesses expenses, with time allowed to pay the costs.
It is apparent therefore that the issues in respect of which the Tribunal found against the appellant as constituting those particulars of the charge found to have been proved were in respect of the following matters:
- 1.Failing prior to surgery to take a skyline view x-ray of the flexed knee joint.
- 2.Using a screw which was too short and too narrow.
- 3.Failing to take intra-operative and post-operative x-rays.
- 4.Failing to undertake adequate post-operative supervision.
- 5.Failure to inform the owner after the surgery as to the true condition of the horse.
All of these were in issue on the appeal.
Failure to take a skyline view x-ray
With regard to the significance of the skyline view x-ray, Dr Kannegieter was shown the one x-ray taken on the date of the operation and two plates taken previously. He was asked what would be needed by way of x-ray assistance in order accurately to assess the size of the slab fracture prior to surgery, and replied (p. 199) “You'd need to take several views.........if you were going to go on to do surgery, you would need to take additional views particularly oblique views, and most importantly, a skyline view when you're angling down across the top of the knee if you were considering undertaking surgery.” He said that it was taken by flexing the horses knee slightly, but not over-flexing it. He said that the amount of flexion shown in the two x-rays on the one plate taken on 4 June was good flexion to get a skyline view. He said (p. 201) that the skyline view, along with others he identified, were necessary as a diagnostic tool, and he would definitely expect an ordinarily competent veterinary surgeon in the practice of his profession to take those additional views if contemplating surgery. He acknowledged that a skyline view was hard to take but said that it would give a lot more information and that it was essential to have it once it was established that a slab fracture was present. This indicates that Dr Kannegieter regarded the skyline view as significant to preparation for surgery rather than as a means of diagnosis. He later repeated the assertion that the skyline view would be the most important view (p. 202). At page 229 during cross-examination Dr Kannegieter explained by reference to a skyline view taken post-mortem the significance of such view: one of the points made is that it is only in a skyline view that it is possible to pick up whether the slab is split. The other point made does not emerge clearly from the transcript, since it was made by reference to another x-ray, but the tribunal would have been in a good position to appreciate its significance.
In submissions counsel for the appellant drew attention to a passage at page 226 where in cross-examination it was put to Dr Kannegieter:
“If a competent vet had five very good views that gave him sufficient information to proceed with surgery, would he, in his discretion, be forgiven for deciding not to take a skyline view?....Yes. Provided he was prepared to encounter unexpected difficulties which may entice - may mean having just to close the incision straight up again (inaudible) the horse to wake up.
Precisely. We're speaking of a competent vet aren't we? An ordinary competent vet?....Yes. As I say, you can do the surgery without any x-rays if you wish to.”
I think it is necessary for that passage to be taken in context. A few lines further on in response to a further question he said “If there is any remote chance of getting a skyline view you should do that........” I think that Dr Kannegieter's answers to these questions were directed to what was possible rather than what was proper veterinary practice. Obviously it is possible to perform surgery without x-rays, and it may be proper to do it under some circumstances, for example if there was no x-ray equipment available. But it seems to be clear that the thrust of the witness's evidence was that if x-ray equipment is available a veterinary surgeon who is contemplating surgery on the knee with a slab fracture would not be acting in accordance with proper practice if he failed to take a skyline view, because there is information given by that view which would not be given by other views and in particular would not be given by the other views identified by the appellant at p. 363.
Mr Chandler said that a minimum of one skyline view should have been taken to determine the quality of the slab fracture; it was necessary to determine the width of the slab fracture, and whether it was in one piece or crumbling, although it also provided a positional reference: p. 71. He would expect a competent veterinary surgeon to take a skyline view of the site before operating. Further questioning at p. 72 elicited that a skyline was not necessarily included in the x-rays taken for diagnostic purposes. Under cross-examination at p. 124 Mr Chandler said that a skyline view was needed to determine a number of things. The first he mentioned was whether the slab was complete all the way across, and did not have hairline cracks or other weak spots which could cause it to come apart when an attempt was made to secure it with a screw. At page 125 he was asked whether assuming that other x-rays were sufficient for diagnosis and that the horse was in extreme pain, a veterinary surgeon was negligent in deciding not to take a skyline view. The question should not have been asked in those terms, and the answer “That's his decision, so it's not negligent, no.” is necessarily unhelpful, because the issue the Tribunal had to decide was necessarily not concluded simply by the fact that the appellant decided not to take a skyline view. Nevertheless it may be that the witness was intending to say that a failure to take a skyline view is not necessarily inconsistent with the proper veterinary practice. In re-examination at p. 138 he said that the flexion in x-ray Exhibit 19 was nearly close enough to take a good skyline view. He had said at p. 124 that if he did not take a skyline view he would think he would have been inefficient. I would interpret his evidence as being overall to the same effect as Dr Kennegieter's evidence. The Board accepted his evidence to the effect that a skyline view was necessary.
Ms Dodd at p. 274 in cross-examination said that for a slab fracture she always took a skyline shot. She regarded the skyline as the most important view with regard to the thickness of the slab fracture and where the slab is relative to the extensor tendons across the front of the knee. When asked whether she would be critical of two veterinary surgeons who decided, taking everything into account, not to take a skyline view, she said that she would want to know why they didn't take one. In other words such a decision was one which required justification. She also thought that the degree of flexion on the x-ray taken on 4 June 1993 (Exhibit 19) was sufficient for a skyline view to have been taken: p. 276.
The respondent also relied on a statement in a text, McLlwraith and Turner “Equine Surgery” (Exhibit 39) at p. 167, to the effect that a skyline view is mandatory, which was mentioned with apparent approval by the tribunal (p. 3). I do not regard this text as meaning that such a view is mandatory only when the fracture is suspected as distinct from established. The other evidence shows the relevance of this view to preparation for surgery even if the fracture is established. This is the topic addressed in the text after the statement that it is mandatory. I think the distinction is with “not indicated”. A question of the correct interpretations of the text is one where the expertise of the Tribunal would have been of value.
The appellant said in his evidence (p. 364) that on that day he did not attempt a skyline view, since he thought it was not necessary. The x-rays he had taken provided all the information he wanted to know, and in view of the pain the horse was suffering it would have been necessary to anaesthetise it in order to achieve the degree of flexion necessary to obtain a skyline view. His evidence also indicates that he thought it was a difficult to obtain successfully. Indeed he was rather dismissive of the skyline view, saying (p. 365) that it was mostly not of great use. He said the x-rays he did take were adequate for diagnostic purposes.
The only evidence supporting the appellant's position was that given by Ms Easton who said at p. 28 that there was discussion and “We didn't take a skyline view because it was not - did not feel it was necessary with the view we had already being adequate, and the feet that it would put the horse through considerable pain to take that picture.” This is however evidence of the joint conclusion of herself and the appellant, who was her employer at the time; it was not strictly presented as her independent view on the subject. At p. 52 under cross-examination she said that she thought that the taking of a skyline view was a matter of discretion, and that its value was to help in determining the position and size of the fragment, which she had thought was adequately revealed in the other x-rays taken. She thought it was necessary to flex the knee quite a bit more to take a skyline view than was shown in the x-ray that was taken: (p. 53)
It was argued for the appellant that Mr Chandler's evidence was premised on the assumption that the only x-rays that had been taken were the ones he had seen. That may well be right, but it does not detract from the force of his specific justification of the relevance of the skyline view. Reference was also made to an answer at p. 72 which suggested that flex lateral views were an acceptable alternative to a skyline view. It seems to me however that it is clear that this passage is directed to the question of what views are necessary for the purposes of diagnosis. They do not detract from the force of his evidence as to the significance of a skyline view as an aid to surgery.
It was also submitted that Ms Dodd was expressing a view on the premise that the only x-rays taken were the ones she had seen; it seems to me that her evidence about the significance of the skyline view is clearly not based on that premise.
Mr Wright said in his evidence in chief at p. 7 when asked as to the necessity or otherwise of a skyline view prior to an operation: “There are certainly many experts in the field of [equine-] radiology that regard skylines as an essential part of a radiographic investigation of the carpus of the knee.” It was submitted for the appellant that this implied there were other experts of a contrary view. I see no reason to draw that inference. He thought that the skyline view was important in this particular case, and said that they always attempted to obtain skylines, though he conceded they were difficult to obtain and the attempt was not always successful. He thought however that the amount of flexion shown on 4 June was sufficient for a skyline. He said at p. 8 that the omission to take a skyline view ran counter to accepted practice by the ordinary competent veterinary surgeon. It is true that at p. 9 he said he could understand that there might be the difficulty in obtaining a skyline view, but at p. 19 he said the skyline always gave information that other projections can not. He was then asked some questions which assumed that taking a skyline view would have caused significant pain to the horse, but which did not advert to the degree of flexion shown in the x-ray that was taken on 4 June, and said that one would not force the issue when there was reasonable information present, and one may elect to gain more information via a surgical exploration.
The Board in its reasons (p. 3) accepted the evidence of Dr Kannegieter and Mr Wright and referred with approval to evidence of Mr Chandler and Ms Dodd, and Exhibit 39. They found that the flexion of the joint shown in Exhibit 19 was sufficient for a skyline view to be taken. It was argued on behalf of the appellant that the evidence before the Tribunal did not justify a conclusion by the Tribunal that in the circumstances of this case proper professional practice required that a skyline view x-ray be taken prior to surgery. In my opinion there was evidence before the Tribunal sufficient to support such a conclusion; indeed when the evidence is properly understood it seems to me that such conclusion is required by a clear preponderance of evidence. It was in my opinion clearly open to the Tribunal to arrive at that decision, and on the basis of my consideration of the transcript I would arrive at the same decision.
The finding of the Board was expressed in terms that there was an accepted practice as to the taking of specific x-rays for the accurate evaluation of slab fractures of the third carpal bone of horses before surgery and that these include a skyline view of the flexed joint as being mandatory. It may be that in making that finding the Tribunal went further than it had to; the issue before it was whether the appellant was negligent in the practice of his profession and one of the particulars relied on was that he had failed to take a skyline view prior to surgery. It was not relevant for the Board to consider the question of whether the taking of a skyline view was mandatory as an abstract proposition, but whether it was mandatory for this vet under these circumstances, in the sense that a failure to take it was inconsistent with the proper practice of his profession in this respect by a reasonably competent vet. Obviously relevant circumstances were that the appellant had x-ray equipment available to him, and that the knee was capable of sufficient flexion to enable a skyline view to be taken, a finding made by the Tribunal and supported by the expert evidence before it. It follows that finding number one may have been expressed in terms which read literally went further than was necessary or appropriate, but I think the finding as applicable in the relevant circumstances was entirely justified. That part of finding number three which is directed to the failure to take a skyline view addresses the correct issue, and is justified by the evidence before the Tribunal.
Length and diameter of screw
The appellant challenged the finding that he had failed to exercise the degree of care and skill expected of an ordinarily competent veterinarian by the selection and use of a screw of inadequate length and diameter for the type of surgery carried out on the knee joint.
There were three particulars given in relation to the allegation that there was negligence in the performance of the surgical procedure (Exhibit 36):
- i.Use of a surgical screw (12mm by 2mm) of inadequate length and diameter for surgery of this kind;
- ii.Use of a self-tapping screw which was not appropriate for surgery of this kind;
- iii.The surgical screw was used at an incorrect angle of placement for surgery of this kind.
The Tribunal was not prepared to make a finding against the appellant in relation to the angle of placement: See p. 4. There was some discussion of evidence as to the suitability or otherwise of self-tapping screws, but there was no specific finding either way in relation to the suitability of self-tapping screws. There was however an express finding, in finding number three, that the screw used was of inadequate length and diameter.
Mr Chandler produced the screw which he found in the knee of “Take a Chance” during the postmortem and it became Exhibit 17 (p. 62). Mr Chandler in his report Exhibit 5 said that on examination of the horse on 31 July he found the screw floating in a fluid sac below the skin, which was confirmed on a post-mortem where the screw was found not in contact with any bony structure. He said (p. 66) that the screw was about 12mm long and about 2mm in diameter. He said that the standard procedure was to use a 4.5mm AO screw, that is one which is designed to go into a pre-tapped hole, whereas the screw he found was self-tapping. He said that the minimum acceptable length of the screw was one which would be sufficient to enable penetration into the parent bone of 1½ times the width of the slab, so that the overall length of the screw would be 2½ times the width of the slab. Having said that however he went on to say that for a slab about 6mm thick which is what he thought was the width of the slab in the present case the minimum size should be 18mm, and in terms of the accepted practice of the profession it ought to be around 25-3 Omm. At page 68 he described the accepted procedure as involving, first, boring a smaller diameter hole, then over-drilling the hole in the slab to 4.5mm, then tapping the parent bone with a 4.5mm tap before securing the slab with the screw. On the same page he said that the use of a 12mm × 2mm self-tapping screw did not conform with the accepted practice in the profession for this procedure.
There is some inconsistency in the evidence in chief in relation to the minimum permissible length of the screw, and this was raised in cross-examination (p. 80) where Mr Chandler agreed that the absolute minimum length was 15mm, but repeated that he would use one of 25-30mm length. When shown the x-rays taken on 12 July he said that at that stage the screw was not embedded in bone but sitting in fluid: p. 95. He did not have a great deal of personal experience with this operation; he thought he had performed four in the course of his career: p. 97. When cross-examined about the measurement of the thickness of the slab at one stage (p. 106) Mr Chandler seemed to be suggesting that the probable thickness of the slab was 5mm rather than 6mm, although at pages 107 and 108 he seemed to revert to 6mm as his preferred estimate. He made the point that the best way of determining the thickness of the slab was to take a skyline view which the appellant had not done. At page 108 it was put to him that, applying the formula of 1½ times thickness of the slab into the parent bone, if the slab was 5mm that required a screw length of 12.5mm: his response was “you should have a good strength [sic - length] of up to 25ml”. (p. 108). He clearly thought the screw used was quite inadequate; at p. 69 he described it as a “little baby screw”.
Dr Kannegieter at page 208 described the screw as having “virtually no thread”. He had had a reasonable amount of experience of this operation, performing perhaps 50 or so over 10 years: p. 212. He was shown Exhibit 17 which he thought was about 1½ cms long and 2mm wide, and said that it was too small in both length and diameter: p. 213. This led to inadequate holding power because there was very little thread on the screw. He described the correct procedure at page 214, where he said that he doubted if a self-tapping thread would get any holding power or grip at all. He thought there should be a minimum of 15mm into the parent bone, and preferably 25: p. 214. Indeed he would only have one 15mm long if there was insufficient bone to work with, which was not the case on this occasion. He said the standard diameter screw for this sort of fracture was 4.5mm, although for very narrow slabs one could go down to 3.5: p. 214. The screw Exhibit 17 was not in his opinion accepted practice for ordinary competent veterinary surgeons; there were no exceptions justifying the use of a screw of that size for this repair: p. 215. From about page 253 Dr Kennegieter was cross-examined about suitable screws for this surgery, but it does not appear to me that he was persuaded to modify his opinion as to the unsuitability of this screw for this operation.
Mr Wright did not appear to comment directly on the adequacy of the length and diameter of this screw, although at page 13 he said that the x-ray taken on the 12 July the screw did not at that time appear to be in a position to exert any holding power.
The appellant in his evidence in chief at page 370 said that the slab was up to 5mm thick, and that having regard to the dimensions of the slab “We came to the conclusion that we had to go down to about a 2.6mm screw.” On the following page when asked about the length of the screw the appellant replied: “I was trained by Dr Wheaton. We had to have 10mm into the parent bone so that made it about a 15m screw, but put it this way, if its a bigger slab than that you certainly make it longer than 10, so we used - I sort of used the basic rule that touted around, 1-1.5 times in the parent bone.” He rejected as rubbish the suggestion that the screw should have been 4.5ml in diameter saying that that was far too large to counter-sink the head into the slab. He said that he counter-sunk the screw (p. 373) but does not appear to have given evidence as to the depth to which it was counter-sunk. Dr Kennegieter at page 254 agreed that the screw head was to be counter-sunk and said that that should be done so that it sat flush into the bone. At page 390 the appellant that the length was adequate for the size of the fracture, and the diameter was the only size screw which would have fitted into the slab.
Ms Easton in her evidence in chief said that at university she was taught that the diameter of the screw should be 20-25% of the width of the bone, and in terms of length that “You must have at least 10-15mm of the screw in the power bay. [sic - parent bone].”: p. 31. It appears that the lectures were directed towards general orthopaedic surgery in animals rather than specifically to horses: p. 76. She said at p. 32 that she was happy with the size of the screw selected for this operation, and she thought that it was counter-sunk approximately 3 mm, leaving approximately 10mm in the parent bone. This was the first occasion when she had seen this particular type of surgery (p. 40) although she had had some experience of knee operations on animals other than horses: p. 54. On her evidence (p. 55) she thought about the appropriateness of the screw being used, but did not express a personal opinion; it was not her choice, but she did not dissent from it. There was brief evidence from Dr Maguire, an orthopaedic surgeon, to the effect that self-tapping screws were commonly used for orthopaedic surgery, although he generally preferred to use tapped screws. His evidence did not seem to discuss how the different types of screws varied in terms of ability to grip into bone.
That issue also appears not to have been addressed in the report of the engineer Mr Chaseling (Exhibit 45), although he otherwise analyzes the function of the screw and concludes that the screw which he examined appeared appropriate for the purpose, and the use of a significantly larger screw would increase the risk of splitting the bone fragment while the longer screw would produce minimal increase in grip. The screw he examined Exhibit 46 is about 1mm longer than the one found by Mr Chandler, Exhibit 17, but is otherwise similar. There is a head of 2mm or a bit more, and a point of almost 1mm, included in the overall length, so that the length of effective thread of Exhibit 17 was about 11.7mm. In paragraph 4 he noted that the conical head of the screw which was the part counter-sunk into the “upper member” (ie. the bone fragment or slab) because of its angle produced a component of force which tended to burst the upper member. His analysis suggests that having a larger screw would increase the risk of this bursting.
In paragraph 8 he said that 2mm of screw length contained sufficient cross-sectional area of thread to provide a surface in contact with enough joint material so that the tensile strength of the joint material engaged would be the same as the tensile strength of the screw. Such a calculation appears to me to involve an assumption about the tensile strength of the bone engaged by the thread of the screw, that it is over the whole area of the thread as great as the average tensile strength of bone. Such an assumption is obviously unrealistic, since the strength of the bone would obviously be affected by the process of inserting the screw, and effective grip would be obtained only over part of thread in any case, but Mr Chaseling attempted to meet these difficulties by indicating that a grip length of 10mm, five times the calculated minimum, should be more than adequate. He then made the point that increasing the length would simply be engaging more cancellous bone, which was of little tensile strength and provided little additional grip. Dr Kennegieter's evidence was that the density of the third carpal bone in the adult horse was very high, so that it was difficult to place a screw into it: p. 247.
In the course of his oral evidence at page 95 he said that a self-tapping screw in material like bone would give inherently a better grip because the implement cutting the thread is the screw that is going into it. That does not address any difference between the areas of the thread of a self-tapping and the thread of a tapped screw, and the suitability of each for gripping material like bone. Under cross-examination he conceded that he had no experience with the bones of horses: p. 96. Nor had he studied material concerning the technique of leg screw fixation either in humans or animals. At page 97, when questioned about the need or 2mm of screw length, he conceded that the figure quoted was for average bone properties, and “Its one of those situations where I prefer a very large factor of safety because of the possibility of it being weaker than that and because of the brittleness.”
The Tribunal dealt with the evidence of Mr Chaseling (p. 4) by saying that his evidence was not relevant to the knee joint of horse. I think there are difficulties in applying his theoretical figures about the tensile strength of bones in these horses, and difficulties about relating his evidence to the practical experience of those who are familiar with this field. He seems to have recognised himself that the theoretical figure of 2mm of length for this screw to achieve as much grip as the screw itself could hold was unrealistically low, hence his reference to the need for a very large margin of safety. He did not explain why that margin of safety stops at a figure of 10mm, rather than 20mm. The evidence was also based heavily on the particular screw used. The target figure for tensile strength is simply the tensile strength of this screw, and is not derived objectively by reference to the tensile strength desired in this application. The disadvantage of a larger diameter in increasing the risk of splitting the bone fragment is based on the fact that the base of the head of the screw was tapered, as was the case with this screw. The calculation of grip strength depends on the thread design of this screw, and does not involve any comparison with the sort of screw contemplated by Dr Kennegieter for example; I strongly suspect that the thread area of the sort of screw that he is speaking of would have been very much greater than the thread area of the screw Exhibit 46. Mr Chaseling also does not appear to address the extent to which the parent bone was cortical bone rather than cancellous bone. If the parent bone had say 5mm of cortical bone with a reasonable tensile strength, with cancellous bone underneath that which was of very little strength it may well be reasonable to conclude that extra screw length into the cancellous bone would be of little value, so that what mattered was not the length of the screw but its diameter, since an increased diameter screw would have meant a larger area of thread pressing on the cortical bone which was available. There is nothing however in Mr Chaseling's evidence to cast any doubt on the proposition that, subject to the increased risk of splitting the bone fragment through the use of a larger screw, particularly with a conical head, a longer screw will provide more grip than a shorter screw, and a thicker screw will provide more grip than a thinner screw. I think therefore that the Tribunal was correct to take the view that the evidence of Mr Chaseling was really not relevant to the issues which it had to decide.
The appellant also called evidence from a Ms Wiggan who was a qualified veterinary surgeon working for a company which provided among other things self-tapping screws to orthopaedic surgeons. She did not supply screws or other implements to vets. She said that the advantages of a self-tapping screw where that it reduced the time in surgery, reduced the risk of infection because fewer instruments were introduced into the bone, and reduced the likelihood of stripping out the screw hole through getting a cross-thread: p. 82. She said that about 95% of the screws her company sold were self-tapping.
The Tribunal at page 4 proceeded on the basis that the screw appeared not to be properly in the bone in the x-rays taken on 12 July 1993 (Exhibit 22) and had come out of the bone completely by the time the horse was seen by Mr Chandler, and, if the screw had been securely fixed at the time of the surgery as claimed by the appellant, this supported the contention that the screw used was inadequate to maintain fixation of the slab fracture. The Tribunal found that the most likely reason for the screw failing was a combination of infection and the screw being of inadequate length in diameter for surgery of this kind (p. 4).
In my opinion there was clear evidence from Dr Kennegieter to support the conclusion that the screw used on this occasion was too short and too narrow. It was argued on behalf of the appellant that this evidence was directed to a tapped-screw and that there was no evidence that the screw used was too short or too narrow for a self-tapping screw. Even if there was really no clear evidence about the relative superiority in terms of grip strength of self-tapping and tapped screws, the proposition that a short thin self-tapping screw was the equivalent in terms of grip strength of the sort of much longer and significantly thicker tapped-screw spoken of by Dr Kennegieter was not supported by any of the evidence to which I was referred in the course of argument, nor have I found any such evidence for myself. To some extent the case run by the appellant below was directed to responding to the proposition that the use of a self-tapping screw at all was inappropriate, and to that extent it was successful since the Tribunal did not criticize the appellant for the use of a self-tapping screw. The respondent's case below was that the screw was inadequate because it was too short, and too thin, and the wrong kind. There was evidence to support the proposition that the screw used was too short and too thin, and in those circumstances I think there was an evidential onus on the appellant to show that these disadvantages were overcome by the use of a self-tapping screw.
The appellant's argument really involves characterizing the evidence of the respondent at the hearing as saying that the screw used by the appellant was too short and too thin for a tapped screw, and, since the screw used was not a tapped screw, there was therefore no evidence that for a screw of this kind the screw used was too short and too thin. In my opinion that is not the correct way to characterize the evidence of Dr Kennegieter and Mr Chandler. I do not read it as being conditioned in this way, and if it is not, the appellant's argument is based on a false premise and should therefore fail. I would point out that the Tribunal as an expert Tribunal was in a better position than I am to assess whether the evidence should be treated as being conditioned in this way.
The appellant also relied on the formula of 1½ times the width of the slab penetration into the parent bone given by Mr Chandler, and some calculations indicating that the screw length applying that test was either just within that minimum or just outside it depending on the depth to which the screw was counter-sunk. I do not think either of those witnesses regarded that formula as being a satisfactory guide under all circumstances, and I would think it likely that as the slab thickness was reduced a point would be reached where it would cease to provide a sufficient length of penetration into the parent bone. Dr Kennegieter said that the formula would not provide a sufficient length of screw into the parent bone in the case of a slab 4mm thick (p. 255). The appellant himself seemed to think that 10mm penetration was pretty much the minimum, and this is more than the penetration given by that formula for a slab 5mm thick, or even 6mm thick. Unless the screw was over-countersunk, if the slab was 5 mm thick Exhibit 17 was not long enought to satisfy the appellant's own minimum of 10mm into the parent bone. I do not think that the evidence for the respondent should be characterized as saying that the boundary of proper professional practice was determined by the application of this formula; on the contrary I think that any fair reading of the expert evidence relied on by the respondent shows that it was to the effect that the screw in feet used by the appellant was too short and too thin in these circumstances to be consistent with proper veterinary practice. There was no evidence from any independent expert in veterinary surgery to the effect that the screw used by the appellant was adequate in the circumstances. In my opinion therefore the Tribunal was entitled to find that the appellant had failed to exercise the degree of care and skill expected of an ordinary competent veterinary in the practice of his profession in the selection and use of a screw of inadequate length and diameter for the type of surgery carried out to the knee joint. In my opinion there is no good reason shown for interfering with that finding.
It was argued for the appellant that the reasoning of the Tribunal was defective because it had failed to find what the dimensions were for the smallest screw which an ordinary competent veterinarian could properly have used in these circumstances, before concluding that the screw used by the appellant lay beyond such a limit. That in my opinion is equivalent to saying that a court can not find that a driver of a motor vehicle was driving at a speed which was excessive in the circumstances without first finding precisely what was the highest speed which could have been driven in those circumstances while still exercising reasonable care for the safety of relevant persons. I am not aware of any authority to support such a proposition. Indeed, in any particular matter where the question is one of whether the behaviour of someone lies beyond the limit of appropriate conduct, a court or other Tribunal is rarely concerned with making a precise finding about the location of the limit; all it has to do is say which side of the limit the conduct fell. That is particularly so where the issue does not involve questions of limits fixed with precision, but rather matters which involve some element of professional judgment. I suspect that it was not a matter of saying that any screw above Xmm in length was correct and the use of any screw below that length was wrong. Rather it was a matter of saying that screws of the order of Xmm in length really ought to have been used, with X being either a specific length or a range, and the question is whether the difference between that length and the length of the screw in fact used is sufficiently great to take the matter beyond the ordinary limits of professional discretion. That is the sort of matter which is unlikely to be determined appropriately be the application of some formula, and a matter which was inherently appropriate for the determination of an expert Tribunal. In my opinion therefore there is no substance in this argument either.
It was argued on behalf of the appellant that he was not given the opportunity to comment on the significance of the proposition that the screw had come out notwithstanding that (according to him) it had been securely fixed. Dr Kennegieter said that the slab healed despite the presence of the screw which was shown by the fact that the screw had come out: p. 231. At page 502 it was put to the appellant directly that the screw he chose fell out, which he denied, saying that screws do not fell out, they work out, and it was then put to him directly that he chose the wrong screw “by reference to its length, diameter and its properties being a self-tapping screw”. In my opinion the cross-examination on this page adequately exposed the suggestion of a relationship between the inadequacy of the screw and the fact of its having come out.
The appellant at page 371 said that he could not use a screw with a thread of 4.5mm in diameter because the head of such a screw is 8mm and such a head was too large to counter-sink into this slab. Dr Kennegieter had referred to screw diameters of 4.5mm and 3.5mm: p. 253. The difficulty with this argument from the appellant's point of view is that as far as I can see Dr Kennegieter who is the principal expert giving evidence as to the inadequacy in terms of length and diameter of the screw used by the appellant was not cross-examined on the proposition that a screw of a larger diameter than the one used by the appellant could not have been used to secure this slab because it was not large enough to accommodate the hole required to countersink the head of the screw into the slab. I have been through the cross-examination at least from page 247 to the end and it does not appear in that section. When a factual issue such as this is not raised in cross-examination it makes it difficult for the Tribunal to deal fairly with it, and makes it even more difficult for a court hearing an appeal to conclude that such a proposition ought to be accepted.
On the whole I am not persuaded that it is appropriate to interfere with the adverse finding in relation to the length and diameter of the screw. In my opinion the weight of the evidence favours the finding made.
Failing to take intra-operative and post-operative x-rays
The Tribunal at page 4 found that after the operation the leg should have been weight-bearing within a few days to a week. The fact that it was not should have prompted an ordinary competent veterinarian to take x-rays to ascertain the cause. By at least 28 June 1993 there were sufficient signs to suggest that there was something was seriously wrong and an ordinary competent veterinarian would have made a thorough examination including x-rays by that time. The findings numbers 4 and 6 referred to earlier deal specifically with intra-operative and postoperative x-rays.
Mr Chandler at page 83 said he would have taken better quality photographs (ie. x-rays) earlier than 12 July to try to determine why the horse was in trouble: p. 83. He put it as much earlier in the post-operative period, and described it as one of the things that an ordinary competent veterinarian surgeon in the course of his practice should have done.
Dr Kennegieter at page 205 gave the evidence accepted by the Tribunal, that further x-rays needed to be taken if the condition did not resolve within a week, to determine why the horse was not bearing weight properly. This he thought was the first step to further investigation, and he would have expected it to be taken by an ordinary competent veterinary surgeon in every case where this surgery had been performed and complications were developing. This opinion does not appear to have been shaken in cross-examination.
Mr Wright at page 11 said that intra-operative x-rays are required, and that in his institution they are taken routinely. He did qualify this by saying that there may be circumstances where visualization of a fracture is extremely good and you are confident with the screw placement, (p. 12) or where it might be difficult to take an x-ray during the operation, but in the latter case he would be expecting an immediate post-operative x-ray within twenty-four hours to check that the screw placement was adequate. He regard either intra-operative or post-operative x-rays as essential in such a procedure, and would be critical of a veterinary surgeon who did neither, regarding such an omission as running contrary to ordinary accepted practice for an ordinary competent veterinary surgeon. At page 13 he said that it was routine to take immediate postoperative x-rays, but if the horse was progressing well it might be a matter of months before further x-rays were taken. However, if swelling and pain persisted or if there was deterioration additional x-rays should have been taken at that time: p. 14. In particular subsequent x-rays should have been taken if the horse was not weight-bearing. He was not specific about what period of time should elapse before the further x-rays should be taken under these condition, but did say that if there was deterioration x-rays should be taken at that stage: p. 14. Questions were directed to him from time to time about the period 8 June to 12 July, no doubt on the basis that 12 July was the date on which further x-ray was taken by the appellant.
The appellant at page 399 said that it was not necessary to take intra-operative x-rays because he had a view of everything in the joint. He pointed out that there was other work being done apart from screwing the slab into place and he had a clear view of the slab and was able to see that it was in place. He said that he made an incision initially 4cms long later extended to 6cms: p. 385. With regard to post-operative x-rays he said also at page 399 that if you know that your slab is in place and everything is going fine there is no reason why you should need postoperative x-rays. He said that there were no abnormalities that he noticed when changing bandages prior to 12 July: p. 400. He also said at page 401 that there was no point in taking postoperative x-rays after the x-rays of 12 July because the knee was seen to be a mess during the surgery on 8 June: p. 401. Under cross-examination at page 511 he said that he did not need postoperative x-rays before he went away on 27 June because he could feel the screw and he could feel where the slab was through the skin and it was not until he came back and saw severe swelling that there was any need for such x-rays. Ms Easton on the other hand said in evidence in chief at page 38 that when she began to look after the horse on 28 June it had a swollen right knee and some evidence of weight loss in that leg but otherwise there was nothing obvious wrong with it, and its condition when she left it on 16 July was fairly similar to when she initially saw it. This evidence was accepted by the Tribunal: p. 4. Under cross-examination at page 58 she said that she did not feel that post-operative x-rays were necessary during the time she was looking after the horse because they would not have changed her treatment.
On behalf of the appellant it was argued that it was not open to find that the respondent failed to exercise the degree of care and skill expected of an ordinary competent veterinarian in failing to take post-operative x-rays before 12 July 1993, because he was not looking after the horse after 27 June 1993. It was put on the basis that this was a finding that not taking x-rays for a period of 34 days constituted the relevant failure, and it could not be inferred that not taking them for a period of 19 days would have been treated by the board as such a failure. I think however that this involves some misinterpreting of the wording of finding number 6, or at least of the significance of the reference to the date in that finding. The significance of the date was that on that day the first post-operative x-ray was actually taken. I think that the finding was intended to mean that there was a failure of the kind described by the Tribunal in not taking a postoperative x-ray sooner than the one he took, which was on 12 July. The Tribunal was obviously well aware of the fact that he had been away after 27 June, since that was referred to for example on page 5. I think also that there were elements here of the argument that I have already rejected in relation to the length of the screw, that the Tribunal could not find that there was a failure to comply with a proper standard of treatment without first finding what the acceptable limits of the proper standard of treatment were. In other words the Tribunal had to find that proper veterinary care required a post-operative x-ray to be taken not later than a particular day before concluding that the appellant was in breach of that standard. Again I think that this is the wrong approach.
The evidence of the witnesses to which I have referred was clearly that if the horse was not doing well a post-operative x-ray ought to have been taken as soon as that situation developed. The appellant's evidence was really consistent with that; his evidence was to the effect the horse had been doing well up to the time when he went away and it was only obviously not doing well when he came back, whereupon he took such an x-ray. In those circumstances if the Tribunal thought that the horse was not doing well in the period prior to the time when he went away it was clearly correct for the Tribunal to conclude that he should then have taken a post-operative x-ray, and in the light of the evidence that his failure to do so was a failure to take the most clearly appropriate step in the circumstances.
The Tribunal at the foot of page 4 said that it was satisfied that at least by 28 June there were sufficient signs to suggest that something was seriously wrong with the right knee and by that time an ordinary competent veterinarian would have made a thorough investigation including x-rays. In the circumstances of these proceedings I think that is a fairly clear finding that the condition of the horse prior to the time when the appellant went on holidays was such that he ought to have taken a post-operative x-ray at least by then. Such a conclusion in my opinion was open on the evidence, and really follows inevitably once the Tribunal rejects the appellant's evidence that up until the time he went away the horse had been recovering well.
It was argued that a finding that a failure to take x-rays by 27 June was contrary to the whole of the evidence, but it seems to me that such a conclusion is clearly justified by the evidence referred to earlier. Its effect was not that a post-operative x-ray was required in every case; rather that a post-operative x-ray was required if the condition of the horse was deteriorating or at least not improving. That was found to have been the situation here, a finding clearly justified on the evidence. I do not think that the evidence was to the effect that a post-operative x-ray should have been taken in every case no matter what, but that was not the issue before the Tribunal: the Tribunal had to decide whether the appellant was negligent in failing to carry out intra-operative and post-operative x-rays in this case. The charge initially alleged the relevant omission occurred between 7 June and 16 June: Exhibit 2. This was later amended and the relevant dates became 7 June and 12 July: Exhibit 36. I do not think however that the Tribunal was in the position of finding that that omission occurred in respect of the whole of the period or not at all; what was relevant was whether there was during that period an omission which was properly characterized as negligent. I think that in substance the finding of the Tribunal should be treated as a finding that there was a negligent omission in failing to take a post-operative x-ray during that period, in the sense that during that period the appellant was in a situation where it was so clearly obvious that an x-ray was appropriate that his omission to take one was properly characterized as being negligent on his part. Such a conclusion in my opinion was consistent with the weight of the evidence before the Tribunal.
It was also argued that the taking of post-operative x-rays was irrelevant because of the appellant's evidence that he was not going to re-operate in any event, because of the damage which he had found when did the operation on the knee, and therefore taking a further x-ray was irrelevant and academic. It was submitted that any further x-ray would have served no useful purpose, and not taking one therefore can not constitute a failure to exercise the requisite degree of care and skill required of a veterinary surgeon.
In my opinion the short answer to that argument is found in the fact that the appellant took an x-ray on 12 July when he said he found that the condition of the knee had deteriorated. See the justification for that x-ray given by the appellant at pp. 505 and 516 - he seemed to regard it as an obvious step then. Ms Easton said that the x-ray of 12 July was prompted by her expression of concern that the joint had not decreased in size under medical treatment: p. 57. If deterioration of the knee justified an x-ray on 12 July, it justified an x-ray in June if the knee was bad enough, and evidently the Tribunal thought it was. Even if further surgery was out of the question, a proposition which I would have thought could not have been decided without consultation with the owner of the horse, according to the evidence proper treatment of the condition of the leg required an x-ray, and at the very least the appellant was in a situation where he was faced with the need to make a recommendation to the owner about proper treatment. Even if the best thing in all the circumstances was for the horse to be euthanased, it would surely be in the interest of everyone for that to be done sooner rather than later: it would spare the horse the pain in the meantime, and the owner the cost of care and treatment. I do not think that any private decision on the part of the appellant not to conduct further surgery provides any justification for an omission to take an x-ray which an ordinary competent veterinarian ought to have taken.
There was also an argument advanced by the appellant, both before the Tribunal and to some extent before me, that it was not appropriate to make a finding of negligence because on the evidence the problems with the knee of this horse were not caused or aggravated by anything which the appellant did. There was evidence that the slab which was screwed back onto the parent bone did unite with it, even though the screw ultimately fell out: Dr Kennegieter said that the fracture healed in spite of the screw rather than because of it. The question of whether the slab ultimately healed remains controversial, and there was no express finding by the Tribunal that it did, but for the purposes of the argument I will assume it did. Nevertheless, because of the extent of the damage to the knee, the infection and the arthritis, the joint rapidly deteriorated, to the point where by 12 July it was incurable and the only proper course was to euthanase the horse. Indeed it may be that, with the benefit of the inspection available during the surgery in early June, it ought to have been apparent that that was the appropriate course and that the surgery was a waste of time as the horse was doomed. These might have been considerations of some significance if the question was whether the appellant was liable in tort for damages for negligent treatment of the horse's knee, but that was not the issue before the Tribunal. The Tribunal, as explained elsewhere, was concerned with the maintenance of proper professional standards of veterinary care, and the question was whether the treatment undertaken by the appellant fail sufficiently below the standard to be expected of an ordinary competent veterinary surgeon to justify a conclusion that he was negligent as a type of misconduct in a professional respect. The fact that the horse was doomed even before the appellant began the surgery, assuming that was the case, does not excuse the inadequacies in the appellant's treatment of the horse.
What mattered here was whether, broadly speaking, what the appellant did was wrong, and sufficiently wrong to justify disciplinary action, and that is a question which does not depend on what the ultimate outcome was for the animal. If a veterinary surgeon performed surgery on an animal negligently, for the purposes of this provision, in my opinion it does not matter if the animal then happens to die from some independent inevitable cause. If the vet treats a condition negligently it does not assist if the animal, notwithstanding the negligent treatment, in fact recovers. In neither case is the outcome relevant to the question of whether the treatment was negligent, and given that the ultimate purpose of these provisions is the protection of the public rather than the question of punishment of the veterinary surgeon, it is difficult to see that the outcome should be of any significance, or at least any great significance, to the question of penalty. I think this argument also fails.
The finding that there was negligence in failing to take infra-operative and post-operative x-rays however is not as clearly supported. The evidence about intra-operative x-rays was much less positive and was ultimately put by Mr Wright on the basis that one could properly take either an intra-operative x-ray or an immediate post-operative x-ray. The Tribunal in its reasons did not address the question of intra-operative x-rays other than expressly in finding numbers 4 and 6, and it is difficult to see that there is sufficient evidence to support the conclusion that there was an accepted practice within the veterinary profession to carry out intra-operative x-rays when performing a lag screw fixation of slab fractures of the third carpal bone. It may be that the inclusion of these two aspects in the one particular, which to some extent was justified by the evidence that either intra-operative or immediate post-operative x-rays were appropriate, has led to an unsatisfactory finding.
In my opinion the evidence does not support a finding that there was an accepted practice in relation to intra-operative x-rays, and does not support a finding that there was negligence in failing to perform an intra-operative x-ray, and the findings to that effect should be set aside. I think that the practical thrust of the evidence against the appellant was that he ought to have taken x-rays much sooner than he did after the operation, and that was the real basis for the criticism of him, and accordingly I do not think that setting aside the finding in relation to intraoperative x-rays is in itself of any great importance.
Failure to undertake adequate post-operative supervision
The appellant challenged the finding that he had failed adequately to check the surgery side for evidence of infection and or rejection of the screw (finding number 7). This finding was made in respect of particular number 5 of the first charge (Exhibit 2), that between 7 June and 30 July the appellant provided post-operative care which was negligent in all the circumstances. This was further particularized to allege that:
- (i)he failed adequately to observe the horse for lameness and or weight-bearing; and/or
- (ii)he failed adequately to check normal function such as temperature, pulse and respiration rate; and/or
- (iii)he failed adequately to check that the horse was eating appropriately and excreting waste without any complications; and/or
- (iv)he failed adequately to check the surgery side for evidence of infection and or rejection of the surgery performed on or about 8 June; and/or
- (v)he failed to test the surgery site (eg. by taking a fluid sample to test for bacteria growth, protein and white cell count) especially in light in previous radiographic and clinical findings. (Exhibit 4)
It is apparent therefore from the limited nature of the finding actually made that this charge largely failed.
The particulars do not identify what evidence of infection or rejection should have been detectable and what inspection ought to have been carried out in order to detect these conditions. Finding number 7 also does not identify what evidence of infection or rejection should have been detectable, and what inspection should have been carried out in order to detect it. I have therefore referred to the evidence directed to this part of the charge.
The appellant said (p. 373) that after the operation he stayed with the horse while it recovered from the anaesthetic, which it did beautifully, and it gave it an antibiotic called Trisoprin which it received daily from 9 to 14 June. The bandages were changed daily and Otaderm was applied over the wound. He said that the Trisoprin was not because of infection but just a standard preventative: p. 374. He said the wound healed beautifully without complications, after which there was no weeping or pus, and after about ten days he took the stitches out. A short acting penicillin was used daily, again as a preventative because infections happen after surgery, and an anti-inflammatory Butisil to stop swelling and inflammation: p. 374. He later said that Butazol was continued right through with the horse: p. 503. He said at page 375 that he did not suspect infection or anything of that sort but did suspect a lot of osteoarthritic changes.
He started working after his holiday on the morning of 12 July when he observed a lot of swelling in the knee. He said at page 376 that he was concerned enough to take x-rays which showed some osteo change, and he inserted a needle and sucked out some fluid which he examined and did not find any bacteria, and there was no pus in the joint. He said that during the periods he was supervising the recovery of the horse its appetite was excellent; it drank well, ate well, passed faeces well, urinated properly and loved concentrates: p. 377. He said that he observed the horse for lameness and for weight-bearing twice a day at least and probably at other times when he went near the stables: p. 401. For the first few days after surgery its temperature was taken daily.
Dealing specifically with the question of inspection for infection, the appellant said that the wound after surgery healed properly, there was no delay, the sutures came out and were clean, there were no tracks coming from the area, the x-rays taken on 12 July show the fracture had healed which meant there was no infection in the joint at that time, and at that time he took a sample from the joint and examined it with a microscope which showed no sign of infection: p. 403. He went on to say that with infection you have heat and swelling and usually discharge and none of that was present at any time in the horse. The Tribunal did not accept the evidence of taking a sample of fluid from the knee of 12 July: p. 5.
Mr Chandler gave evidence at page 84 of the appropriate checks to be made on the horse after an operation of this sort. He thought from the record of treatment supplied by the appellant after the operation that there must have been something going wrong (p. 88) and he then commented on the absence of any indication of other signs which would have been present if something was going wrong so as to justify the treatment. He spoke at page 91 about inconsistencies between what was recorded in the appellant's notes and the observations he made of the horse when he saw it on 31 July. At page 93 he said that if everything had gone correctly with the surgery and there were no post-surgical complications the horse could not have ended up as it did. At page 94 he said that obviously something had been going wrong but there was nothing recorded in the appellant's notes at the time to indicate any observations of it. At page 123 under cross-examination he said that when he examined the horse he did a test for bacteria and nothing grew. He said that if the horse first put its hoof on the ground on 21 July that was a totally unacceptable outcome of the surgery on 8 June, as was the horse having being lying down a lot as shown by the bed sores on it. The point of this evidence however was to indicate that the recovery period was abnormal, and should have resulted in much more extensive notes being taken by the appellant than had been taken.
Evidence of bacterial infection was provided by Dr Sullivan the veterinary pathologist in his report Exhibit 18. In his draft report Exhibit 29 he concluded from examination of the knee joint that it had chronic erosive arthritis and osteomyelitis which were necessarily associated with bacterial infection, but could not say whether the infection dated from the surgery on 8 June, or had anti-dated the surgery. Although the Tribunal did not accept all of Dr Sullivan's evidence, it did accept his evidence as to bacterial infection in the knee joint: p. 2. He said that it was difficult to culture bacteria from infectious arthritis (p. 190) but cytological examination of the joint fluid could have confirmed the presence of infection: p. 196. He was not however able to provide any evidence directed to the question of whether the condition of the horse ought to have prompted the veterinary surgeon to have taken a sample of joint fluid for such examination prior to 12 July. He said that it was difficult for the treating vet to distinguish between degeneration and infection in the knee: p. 193. He said that by the time the x-ray was taken on 12 July the condition in the knee was irreversible: p. 196. His evidence overall does suggest that there was an infection of some weeks standing in the knee, so that at a time which was relevant to the charge against the appellant the knee was in fact infected.
Dr Kennegieter in his report Exhibit 6 thought from examination of the x-rays taken by the appellant that the possibility of infection was very high. In oral evidence he said that he would have expected better records of post-operative observations to have been kept: p. 206. He said it was normal for antibiotics to be used for five days after this type of surgery, and up to fourteen days if there was a fairly severe problem, but the further treatment going into early July should not have been required had all been progressing well with the horse: p. 207. He said that one of the drugs used. Dexatominol, would have suppressed the joint's ability to fight infection, and was inappropriate if infection was present: p. 207. He said that the x-ray of 12 July showed evidence of infection developing: p. 208. Under cross-examination the only aspect of the treatment which Dr Kennegieter was prepared actually to describe as negligent was the administration of the Dexatominol: p. 242-3.
Evidence as to the post-operative care required was also given by Ms Dodd at page 272. None of it however was directed specifically to the question of what steps should have been taken to check for signs of infection during that period. I was not referred to any evidence relevant to this issue from other expert witness's called on behalf of the board. Mr Head the owner of the horse saw it after the operation for the first time on 29 July, when he thought it was in a very poor condition, with a hugely swollen knee, pressure sores and did not appear to be able to bend the knee: pp. 24-25. Mr Webb the trainer also gave evidence that when he saw the horse after the operation it was in quite poor condition, with a swollen leg which it could not put on the ground, but this also appears to have been at the end of July: p. 148. Ms Easton said that when she began looking after the horse on 28 June the wound had healed perfectly, but the knee was swollen and there was some evidence of weight loss in that leg: p. 37-8. Otherwise there appeared to be nothing wrong with the general condition of the horse. She said that the knee was warn to touch: p. 39. At page 39 she described the knee as grossly swollen. When Ms Easton was asked by Mr Lovell at page 78 how she ruled out the possibility of infection she referred to precautions taken during surgery, and the use of antibiotics after surgery.
Overall the evidence does not indicate specifically what the appellant ought to have done by way of checking the surgery site for evidence of infection and or rejection of the screw, or identify that evidence. There is evidence about what ought to have been done by way of post-operative care, and evidence that infection was in fact present (and the appellant accepted during argument before me that the knee was infected) and that it ought to have been apparent that there was something seriously wrong with the knee well before the appellant went on holidays.
I suspect that part of the difficulty is that this is an appeal from an expert Tribunal, and it may well be that the evidence about what ought to have been done by way of post-operative care and supervision would have been understood by the Tribunal as being relevant to the detection of infection. It may well be therefore that the finding is in substance that the post-operative care and attention was not adequate. There was I think sufficient evidence to justify a finding that there was something seriously wrong with the knee after the operation which ought to have been detected by the appellant and he ought to have done something about it. The particulars given of the charge suggest that something was required by way of checking for evidence of infection other than observing the horse for lameness or weight-bearing, checking temperature pulse and respiration, and checking eating and excreting. Apparently some form of physical examination of the site was contemplated, but I was referred to no evidence that the infection, which on the evidence was present, would have produced physical signs which ought to have been detected on an examination of the site. In view of the absence of any indication that the appellant was aware of any infection prior to 12 July, had there been evidence that the infection would have produced signs which, a reasonably competent veterinary surgeon ought to have detected on a proper inspection of the knee prior to that period, that evidence would have supported a finding by inference that there was a failure properly to check for those signs.
I must therefore determine just what was the basis of this finding by the Tribunal. The Judgment of the Tribunal at pages 4 and 5 contain the following passages which are relevant: “We are satisfied on the evidence that at least by 28 June 1993 there was sufficient signs to suggest that something was seriously wrong with the right knee joint of “Take A Chance” and that an ordinary competent veterinarian would have by that time made a thorough investigation including x-rays and arthrocentesis to collect fluid for cytology and bacterial culture. ..... The continued administration of drugs for an extended period after surgery indicates that the respondent was concerned with the horse being in pain and only able to toe the ground with her right foreleg. The bed sores and loss of weight also indicate that she was in considerable pain and not eating adequately and certainly not responding to the program of treatment followed by the respondent.” In my opinion these findings are all justified on the evidence to which I have referred.
There is one other passage in the reasons that may be significant: on page 3 there is the statement “We are of the opinion that the nature of the scar as shown in the photographs (Exhibit 11) indicates that healing was not by first intention.” I have looked at the photographs Exhibit 11; one of them shows the scar on the knee of the horse clearly and I would expect that an expert Tribunal in particular would have been able to draw inferences as to the way in which the scar had healed or not healed by looking at that photograph. My difficulty is that I can not draw any such inference, and the passage on page 3 of the reasons which suggests that some inference was drawn by the Tribunal is expressed in terms which unfortunately I do not understand. The photographs were identified by Mr Head who said that he took them on 1 August 1993: p. 25. The photographs in Exhibit 11 were shown to Dr Kennegieter at page 211, but he did not then comment specifically on the appearance of the scar. Under cross-examination however at page 246 he said in relation to the photographs of the scar, which would have to be reference to the photograph in Exhibit 11, that the area of the wound had broken open and healed with more scar tissue than normal. Alternatively there may have been problems with the wound healing from the appearance of it and from the use of Otaderm and things like that. Mr Chandler was shown Exhibit 11 at page 59 but did not comment specifically on the photograph of the scar so far as I can see. He had seen the scar itself of course and commented on its length but so far as I can find did not make any other comments on its appearance. Nevertheless there was in the evidence of Dr Kennegieter material to support an inference, which the Tribunal as an expert body may well have drawn anyway from Exhibit 11, that the wound had not healed well as claimed by the appellant.
It follows that there was evidence that after the operation there were problems with the wound, the horse was lying down to an abnormal extent, the knee became or remained very swollen and warm to the touch, the horse failed to become weight-bearing within a reasonable time after the operation, and showed continuing signs of distress. The Tribunal was justified on the basis of this evidence in concluding that prior to the time the appellant went on holidays he ought to have realized that something was wrong and ought to have investigated the matter thoroughly. The Tribunal found in the passage that I have quoted that a thorough investigation would have involved arthrocentesis, and that test is specifically relevant to the detection of infection. These are the matters reflected in numbered finding 5. I think that finding number 7 really goes together with finding number 6 in relation to post-operative x-rays, in view of the earlier finding as to the appropriateness of a thorough investigation which included post-operative x-rays but involved more than that, with the nominated additional element being one specifically directed to detecting infection. There was evidence from Mr Wright that the appropriate further investigation of a possible infection in the joint was to aspirate some fluid from the joint and submit it for cytology and culturing: p. 14. His evidence was directed to the period 8 June to 12 July, but in the light of the other evidence about how soon an improvement should have been apparent after surgery I think that the Tribunal was entitled to find that this step was indicated prior to the 28 June.
The Tribunal thought that an ordinary competent veterinary surgeon would have undertaken a thorough examination of this knee before 28 June, and that the appellant was negligent in failing to do that, and expressed its specific findings by breaking up that conclusion in a way which was probably dictated by the formulation of the particulars to the charges. It may be that the charge was over-particularized; the real basis of criticism of the appellant in the post-operative period was that the condition of the horse required a thorough investigation, if only to discover that the appropriate course was to euthanase the horse without further delay, and the appellant instead of taking that step merely continued a regime of passive treatment largely consisting of drug therapy not all of which was appropriate anyway. I think that if finding number 7 is understood in this way, as a finding in relation to checking for infection by taking a sample for proper examination to detect infection, it is one which was justified by the evidence, and the situation is not one where an appeal court should interfere. If this is not what the Tribunal meant, it is what it ought to have meant. In view of its earlier finding, and in the light of the evidence which it accepted in my opinion the appellant had been negligent in failing to undertake, well prior to 28 June 1993, an arthrocentesis to collect fluid for cytology. If this is not what was meant by finding number 7,1 would set aside that finding and substitute one in these terms.
Failure to inform the owner
It was argued first on behalf of the appellant that finding number 9, failing to inform the owner of the true condition of the horse, was irrelevant because there was no finding that that failure constituted a failure to exercise the requisite degree of care and skill. It is true that in finding number 9 there is no statement that there was a failure to exercise the relevant degree of care and skill, but a matter of keeping the owner informed is not something which really involves a question of care or skill to be exercised in treating the horse; it is simply a question of whether this is something that ought to do done as part of the proper practice of the profession.
The duties which were owed by the appellant were owed to the owner of the horse, Mr Head, and included a duty to take reasonable care to protect his interests in relation to the treatment of the horse. The fulfilment of these duties required the appellant to take reasonable care and display reasonable skill in treating the horse, but the duties were owed to Mr Head, and one of the ways in which his interests were to be protected was by keeping him informed of what was going on. There is in my opinion no difficulty in principle about treating as a breach of this duty a failure to inform the person for whom professional duties are being carried on of any difficulties which have arisen: for a solicitor to fail to inform his client of matters which ought to come to the client's attention is negligence: Green v. Crocker [1939] 1 KB 194 at 202 per Scott LJ; Jackson & Powell “Professional Negligence” (4th Edition 1997) para. 4-119.
This raises the question of what it was that this Tribunal was actually required to decide. The Tribunal was deciding a charge of alleged misconduct in a professional respect in the exercise of its jurisdiction under section 15E(1)(a) of the Veterinary Surgeons Act 1936. By section 22F(I) of the Act a veterinary surgeon is guilty of misconduct in a professional respect if he is negligent in the practice of his profession. The question of what is involved in being negligent is something which depends on the context in which that term appears. It is well recognised that what is required to constitute negligence for the purposes of determining whether there is an obligation to pay damages in tort is different from what is required to constitute negligence punishable as a criminal offence: R. v. Scarth [1945] St R Qd 38 at 45. Section 22F does not specify any particular standard of negligence to be applied as constituting misconduct in a professional respect, but it is I think not difficult to conclude that what is meant by negligent in the context of this section is such a degree of departure from proper practice as to justify characterizing the departure as misconduct in a professional respect. Although the Tribunal may impose a penalty not exceeding forty penalty units (section 22E(1)(c)) the other orders which it can make - removal from the register of Veterinary Surgeons, suspension, admonishing and reprimanding - are all directed to the maintenance of professional standards, and it is not difficult to conclude that the function of the Tribunal is to enforce proper professional standards by dealing appropriately with those who fall below them. Its function therefore is essentially one of protecting the public, or rather that section of the public which may have occasion from time to time to require to the services of veterinary surgeons. Such people are entitled to expect that a reasonable standard of professional conduct will be maintained.
I think it is not difficult to conclude that one of the things that such people could reasonably expect is that the veterinary surgeon would keep them informed about the condition of the animal. The question of whether the conduct of a particular veterinary surgeon constituted a sufficient departure from proper standards to constitute negligence as a form of misconduct in a professional respect is a matter particularly appropriate to be determined by a specialist tribunal such as that established under the Act: Re Hodgekiss (1959) 62 SR (NSW) 340 at 343. It is obviously a matter of degree, and to the extent that it involves questions of judgment and impression those are matters where a court on appeal should be very reluctant to interfere with the decision of the specialized tribunal to which the task of exercising that judgment and forming that impression has been entrusted by the statute, unless it is apparent that the Tribunal has not considered only relevant matters, or has made some other error of law.
I was referred to the decision of the Full Court in Muggleton v. Hall [1991] 1 Qd R 26, and in particular the judgment of Lee J., as to what was involved in the concept of the art and science of veterinary surgery. Apart from the fact that His Honour's judgment was a dissenting judgment, which must cast some doubt upon the reliability of His Honour's exposition, the point at issue in that case was quite different from the point at issue here. In that case the appellant had been charged under a section which made it an offence for a person other than a veterinary surgeon to do anything in relation to veterinary surgery for fee or reward. The expression “veterinary surgery” was defined to mean “the art and science of veterinary medicine”, and the issue was whether what was done by the appellant, which admittedly was done by a person who was not a veterinary surgeon and was done for fee or reward, constituted part of the art and science of veterinary surgery so as to make him guilty of an offence against the section. That involved the question of whether what he did was something which by the statute was made exclusive to veterinary surgeons if done for fee or reward, which is a different question entirely from the issue in the present case. There is no reason to think that the concept of “misconduct in a professional respect” is to be limited to those things which constitute the art or science of veterinary surgery for the purposes of the Act. Indeed one only has to look at some of the matters which by section 22F are expressly included in that concept to indicate that it was obviously intended to have a much wider meaning. The majority did not equate “art and science of veterinary surgery” with “care and skill of veterinary surgeon”; they equated it with “skill and knowledge of veterinary surgery” (p. 27) which is a different concept. Accordingly I do not think the decision in that case is of relevance.
Particular 7 of the first charge alleged as a particular of negligence failure to advise the owner as to the true condition of the horse between 11 July and 30 July 1993: Exhibit 2. The evidence on behalf of the board and the logic of the board's case overall really supported the view that the owner should have been notified well before 11 July, but because of the way the charge was framed it was necessary for the Tribunal to focus on what if any information was given to the owner after 11 July.
The appellant's evidence was that he spoke to the owner Mr Head on 21 July: p. 377. He denied that he had spoken to him on 16 July, and it appears that his case was that 21 July was the first occasion after the surgery on 8 June when he spoke to the owner about the horse. He said that on that occasion he gave a thoroughly pessimistic assessment: p. 378. It was not contended on behalf of the appellant before the Tribunal that there had been some earlier information direct to Mr Head about the condition of the horse: Exhibit 49 p. 28.
To some extent the appellant's case in relation to this matter suffered from the difficulty that his essential contention was that there were no particular problems demonstrated by the horse prior to the time when he went on holidays on 28 June, whereas the Tribunal accepted evidence to the effect that the horse must have been developing what ought to have been recognised as significant problems prior to that time. This finding is in substance that one way in which the appellant ought to have reacted to that recognition was by informing the owner, but the appellant had not done that. The appellant did say that he kept the horse's trainer, Mr Webb, informed of the condition of the horse, but his evidence about this was in very general terms. He said that he went to Webb's stables three times a week after the surgery and spoke to him there on most days, and this horse was a topic of conversation on those occasions: p. 377. The appellant said that between 11 and 30 July the trainer was aware of the condition of the horse: p. 405. He said he spoke to Webb on numerous occasions after 12 July: p. 406.
Mr Head said that he did not speak to the appellant after 8 June until he telephoned the appellant on the evening of 16 July at about 7pm, when the appellant in the short conversation said there was some rejection and some swelling and to call back in a few days: p. 23. He said that the next contact on 21 July when the appellant had said the horse was off medication, there were no problems and she was going okay and to call back in about a week's time: p. 24. He rang again on 28 July when he was told that there was no rejection, the horse was walking flat-footed, the screw was firmly implanted and she was ready to go home: p. 24. This evidence was quite contrary to the appellant's evidence, and if accepted indicated that the appellant had given to the owner a picture of the condition of the horse which was according to all the evidence wholly false. It does not appear that there was any significant modification of this evidence under cross-examination. The trainer Mr Webb denied that he had had any contact with the appellant after 8 June: p. 144. Under cross-examination he denied that he was seeing the appellant regularly three times a week: p. 150.
The Tribunal considered Mr Head's evidence as generally reliable: p. 2. Specifically at page 5 the Tribunal accepted the evidence of Mr Head of the three telephone conservations on 16, 21 and 28 July, and that in the second of these the appellant advised the horse was doing well and that in the third that she was walking flat-footed. It accepted that the appellant probably went to Mr Webb's stables from time to time but that he did not advise Mr Webb of the condition of the horse after the x-rays were taken on 12 July. They found that these statements to the owner were the only reports given to him by the appellant either directly or indirectly. These were findings which were plainly open on the evidence and the resolution of the conflict of evidence, involving as it did questions of credibility of the witnesses concerned, was a matter in respect of which the Tribunal had the enormous advantage of seeing the witnesses and assessing all of the conflicts of evidence the hearing presented. In my opinion no reasons has been shown why I should interfere with that finding, and once that conflict of evidence is resolved as the Tribunal resolved it the allegation in particular 7 of the first charge is plainly proved. This is what was found in finding number 9. I have already indicated my view that it was open to the Tribunal to regard such a failing as negligence.
It was argued that the Tribunal did not expressly find that this, or indeed the other elements of the numbered findings, amounted to negligence, because there was no express finding that there was a sufficient departure from proper standards of a veterinary surgeon to result in such a conclusion. The Tribunal said on page 1 of its reasons that it generally accepted the submissions as to the meaning of the word “negligence” in the submissions of counsel for the Board which became Exhibit 48. The Tribunal went on to conclude that the appellant “can only be found guilty of the first charge if the Tribunal is satisfied to the required standard that he did not exercise the degree of care and skill expected of an ordinary competent veterinarian in the practice of his profession....”
Exhibit 48 had referred to the statement in Hunter v. Hanley (1955) SLT 213 that “gross negligence” was defined as “so marked the departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display.” A reference was also made to a statement about negligence by a doctor, in the context of an action for damages for negligence, in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, and the proposition which the respondent repeated in the passage I have just quoted from its decision, before submitting that the Tribunal had to be satisfied:
- “(1)that there is a usual and normal practice in respect of the particular procedure or subject matter;
- (2)that the respondent did not adopt that usual and normal practice;
- (3)that the course the respondent adopted was one which no veterinary surgeon of ordinary skill would have taken if he was acting with ordinary care.”
The appellant did not dispute this formulation. It seems plain that this approach to the test was followed by the Tribunal, since it is reflected in the formulation of the numbered findings.
The appellant however argued that there was no express finding that there was a sufficient departure from the normal standard as to constitute negligence, and said that an express finding to this effect was essential element of the Tribunal's reasoning without which a finding of negligence could not be made. Reference was made to the decision of Re Newnham [1993] 1 Qd R 502.
In my opinion it is clear from the passage on page 1 of its decision that the Tribunal was aware of the test I have just referred to and was attempting to apply it. The appellant does not dispute the appropriateness of that test. The express findings which were made dealt with the existence of accepted practices and the failure of the appellant to comply with those practices, and then concluded that in these respects he was negligent. Although the Tribunal did not say expressly that in its opinion the failures which it had found to have amounted to departures from a proper standard of veterinary care were sufficiently serious departures from proper practice to justify characterizing the appellant's conduct as negligent in these circumstances, it seems to me abundantly clear that that was the essence of the express finding of negligence in respect of those matters. That was the only thing which the Tribunal had to conclude, and it was a matter not involving any process of reasoning which would have to be exposed appropriately in reasons for judgment, but simply a matter of making a judgment as to the seriousness of the appellant's departure from the proper standards which had been expressly found in the relevant respects. If the Tribunal had formulated its reasons by saying “we find that these facts occurred, the test to determine whether these facts amount to negligence is such and such, and we find that they do”, I doubt if this ground would even have been argued. I do not think that the fact that the test was expressed at the beginning of the reasons for judgment gives any reason to doubt in the present case that it was properly applied or that a proper application of it leads to the conclusion arrived at by the Tribunal. It has been said that a court when considering a decision of an administrative tribunal should not be astute to scrutinize its reasons minutely for indications of error: Politis v. Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 per Lockhart J. This is not a case like Re Newnham, where the decision maker had to find A and B before proceeding to a conclusion, because those two elements were stipulated as requirements in the statute. What this Tribunal had to find in order to satisfy the statutory requirement for proceeding under section 22E(1) was that the appellant was guilty of misconduct in a professional respect, and that is what it did find.
Conclusion
In this matter save in one respect I consider that all the findings in the numbered findings, properly understood, were correct. The one matter, in relation to intra-operative x-rays, could in the circumstances hardly have been regarded by the Tribunal as a vital part of its overall conclusion that the appellant was negligent. I do not consider that my view in relation to that finding vitiates the Tribunal's conclusion, but if it does and it is necessary then for me to make a finding as to the present or absence of negligence on the basis of those findings I would uphold, I consider the findings which remain provide ample justification for a finding that the appellant was negligent in the practice of his profession and I would so find. My overall impression from the evidence I have seen in the course of considering this appeal is that the appellant's conduct in and in relation to his treatment of this horse was substantially below the standard which its owner was entitled to expect from a veterinary surgeon. He was therefore guilty of misconduct in a professional respect.
The appeal in relation to sentence was not pressed. I think that the finding of misconduct on the basis of those particulars which I would uphold justifies the penalty imposed by the Tribunal.
Accordingly the appeal is dismissed with costs.
Counsel for the appellant: | B.A. Laurie |
Counsel for the respondent: | R.P. Devlin and R.J. Byrnes |
Solicitors for the appellant: | Simmons Crowley & Galvin |
Solicitor for the respondent: | Crown Solicitor |
Dates of hearing: | 7 October, 28 November 1996 |