Ironmonger v Gunnedah Shire Council [2021) NSWPIC 48 (on Jade) is the first decision of the new NSW Personal Injury Commission to be mentioned on this blog.
The claim before the Commission was for a workers compensation death benefit, but the issue of interest is whehter the treatment provided to the deceased at hospital was so inexcusably bad as to break the chain of causation between the psychological injury and death, such as to amount to a novus actus interveniens.
The Commission held at [72]:
For a break in causation to be found, the treatment given at Tamworth Hospital must be found to be so “inexcusably bad” that the death results from the treatment and not the injury. Here there are competing expert opinions which must be weighed in the balance with the factual evidence. The experts disagree on whether the dosage for VTE was adequate to prevent the pulmonary embolism which was the direct cause of death. When all of the evidence is weighed in the balance I prefer the opinion of A/Prof Raftos and A/Prof Haber to that of A/Prof Collquhoun. It is clear that there is no consensus about whether the VTE prophylaxis dosage should be adjusted, and indeed to what levels, for obese patients. The deceased’s prognosis was poor. He was treated at the standard dose for VTE which did not prevent death by pulmonary embolism. Whilst massive pulmonary embolism is necessarily fatal it is not necessarily preventable at either the standard dose or at a higher dosage about which there are no clear guidelines in NSW for obese patients. The guideline is clear that the patient at risk of VTE must be treated with 40mg Clexane daily and with the use of a mechanical device. This was in fact the treatment that was undertaken by Tamworth Hospital. There is no consensus about the efficacy or safety of dosage adjustment for obese patients. Hence there was no guideline in NSW about dosage adjustment that could have better informed the practice of the Doctors at Tamworth Hospital in February and March 2017. When all of the evidence is weighed in the balance, I am not satisfied on the balance of probabilities that the treatment afforded by Tamworth Base Hospital was so inexcusably bad as to break the chain of causation between injury on 28 February 2017 and death on 10 March 2017. Accordingly the death benefit compensation is payable and I will make orders in accordance with the agreement of the parties in this regard.