Almario v Varipatis

[2013] HCATrans 193

[2013] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S90 of 2013

B e t w e e n -

LUIS ALMARIO

Applicant

and

EMMANUEL VARIPATIS

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2013, AT 2.04 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR D.E. GRAHAM, SC and MR N.J. BROADBENT, for the applicant.  (instructed by Turner Freeman Lawyers)

MR D.J. HIGGS, SC:   If it please the Court, I appear with MS E.M. PEDEN for the respondent.  (instructed by TressCox Lawyers)

MR JACKSON:   Your Honours, may I commence by saying, in a sense, what the case is not about and what it is about in very short terms.  The Court of Appeal appears to have treated the case as one where, in effect, a fat man was suing his doctor for not assisting him to lose weight.  Your Honours will see that at page 112 of the application book, paragraphs 90 and 91.  That was not its nature.  Rather, it was a case of a person who had a deteriorating liver, now terminal, in effect, who was denied the opportunity of proper treatment through referral to a liver specialist.  He was not referred to a hepatologist and the evidence indicated that had he been, his outcome through weight loss via surgery would have been improved. 

Your Honours, I am putting it shortly, I know that, but could I take your Honours in that regard to page 59 of the application book, paragraphs 188 through to 191, and your Honours will see the observations there made by the primary judge.  Your Honours, the issue arising in the application derives from ground 4 of the amended notice of contention in the Court of Appeal which your Honours will see at page 78, and that takes one back to the third of the findings, described as findings of negligence, which appear at page 37, paragraph 113.  Now, your Honours ‑ ‑ ‑

CRENNAN J:   I think Justice Basten deals with this fourth point in the notice of contention from paragraph 76, application book 108, up to paragraph 88.

MR JACKSON:   Yes, that is so, your Honour.  Your Honour, may I just say a number of things about the background of the matter and do so as briefly as I can.  Your Honour, the finding to which I referred was based on the fact that the applicant was suffering from a number of conditions in May 1999.  You will see that at page 32, paragraph 100.  As the primary judge found at paragraph 101, the respondent failed to carry out the necessary monitoring in relation to liver function and, your Honours, as the judge also said at paragraph 103 from mid‑1999, the applicant’s liver condition has emerged as a separate and a discrete problem.  But no step such as referring him to a liver specialist, a hepatologist, was taken and that was in circumstances where first, it was foreseeable that a serious liver disease was underway and secondly, the risk of deterioration was not insignificant.  Your Honours, if I could move into paragraph 109 on page 35, your Honours will see that the judge then held that reasonable care, and I am about line 40 on page 35:

reasonable care on the part of a general practitioner in the position of the defendant required referral to a physician, preferably a hepatologist –

and that, your Honours, that was from September 2000 such a referral was required as a matter of “urgency”, the last few lines on that page.  Could I refer also, your Honours, to the last line, in effect, on page 35 and the top of page 36.  Your Honours, the Court will then note the findings which were made at paragraph 112 saying that:

A reasonable general practitioner in his position would have taken the precaution of referring Mr Almario to an appropriately qualified physician no later than end of September 2000.  It was highly probable that he could develop cirrhosis.  The advent of complications of liver failure and liver cancer were much less likely, but if they eventuated the harm was likely to be very serious indeed.

Your Honours, those matters resulted in the finding at paragraph 113c.  Now, your Honours, the judge then dealt with the question of causation in relation to the three findings of negligence – your Honours will see at the top of page 37 – and in doing so he made some further findings which are germane.  The first is at page 42, paragraph 132, and you will see that he found in about the third line of that paragraph that:

All the surgeons also agreed however that adjustable gastric banding was a form of surgery that leads to gradual, not rapid, weight loss.  All also agreed that that procedure was available in the period 1997-2003.  What was made clear was that bariatric surgery was reserved for patients who had tried to lose weight by conservative (medical) means and had demonstrably failed.

He said it seemed to eminently qualify the applicant for that surgery.  Your Honours, at page 43 in paragraphs 135 and 136, he said that the possibilities of success of gastric binding were more than 50 per cent, in other words, more likely than not.  At page 45, your Honours, paragraph 144, your Honours will see that after discussion of whether he could make the necessary lifestyle adjustments to make the surgery a success, your Honours will see the last three lines of that paragraph:

I find on the balance of probabilities that he would have been able to comply with the lifestyle changes necessary to succeed in overcoming his obesity following bariatric surgery.

Your Honours, at page 46, paragraph 149, you will see he, after some discussion, finds that he would have been able to pay for the surgery.  That led, your Honours, to the conclusion in paragraph 150 that had he been referred, he was there speaking of the respondent by the doctor to a bariatric surgeon on or before 30 July 1998:

surgery would have been offered and undertaken; it would have been successful; and Mr Almario would have complied with the necessary lifestyle changes; more than likely his NASH would not have progressed to cirrhosis, and the complications of cirrhosis which he has suffered, including liver failure and liver cancer, would not have developed.

May I say immediately, your Honours, that he is speaking of a period there, by or on 30 July 1998, the question immediately – a little later than that but some of those findings are germane. 

CRENNAN J:   Now, this is about, is it not, essentially a failure to refer to a hepatologist?

MR JACKSON:   Your Honour, the case now is.  It was wider, of course, as one might expect.

CRENNAN J:   Yes, of course.

MR JACKSON:   But the point taken which we ask this Court to deal with concerns the third finding in relation to, not referring to a hepatologist, where the findings, in our submission, should have been made that if that had happened, then the hepatologist would have referred him on ‑ ‑ ‑

CRENNAN J:   To a bariatric surgeon.

MR JACKSON:   Either to or directly to a bariatric surgeon or to weight loss where, in his circumstances, the only real option was bariatric surgery.  Your Honours, may I come to those aspects now, and your Honours will see that in paragraph 151 there is the reference to the time of progression of the liver disease to cirrhosis.  Could I come to the primary judge’s specific findings dealing with this issue which commence at paragraph 155 on page 49?

Your Honours, what emerges from the paragraphs 155, 156 and 157 can be summarised in this way.  A hepatologist would have referred the applicant on for obesity treatment.  Conservative treatment, that is, weight loss without surgery would have failed, and surgery was an option that would have been considered.  Your Honours, if I may say so with respect, that does seem a rather obvious conclusion in the light of the evidence which is referred to – if I could go back for just a moment to page 41 and to paragraph 130 and the paragraph goes over to six or seven lines on the next page and where you see in the third‑last line the “what else” is bariatric surgery. 

Could I refer also, your Honours, in that regard to the last four or five lines of paragraph 132 to which I have earlier taken your Honours?  Your Honours, could I go back then to page 49 and to the primary judge’s summary of the matter.  Your Honours will see that in dealing with the resolution of it, his Honour held in paragraph 156:

that surgery was an option that would have been considered for a patient with Mr Almario’s history –

And at paragraph 157, he said that weight loss, that is:

conservative treatment . . . would have failed.  And unless Mr Almario was referred to a bariatric surgeon he would not have avoided the progress of his condition –

for the reasons he there sets out.  Your Honours, what was required is a reference on by the hepatologist, and paragraph 156 appears to reflect a view of the likelihood of doing so.  But what the judge did not do, and what was the subject of ground 4 of the notice of contention, was to go on to deal with the matters there referred to.  Your Honours will see that having said what he said up to paragraph 157, he simply then said:

In summary, the plaintiff succeeds on causation on one ground only.

which was not, of course, the relevant ground.  Could I come, your Honours, to the Court of Appeal?  The Court of Appeal dealt with this issue very briefly.  Your Honours will see first at page 103, paragraphs 60 and 61, the judge, Justice Basten, quoted from the primary judge in passages 155 and 157 to which I have already taken your Honours.  Then at paragraph 62 on page 104, his Honour noted that the primary judge had not in fact gone on to consider whether, if:

there had been a referral to a hepatologist in September 2000, he or she would have referred the plaintiff to the obesity clinic and whether they would then have taken steps to refer to a surgeon.

Then his Honour said in the last sentence of 62:

Rather, he simply concluded –

and your Honours will see the remainder of what is set out there.  Could we just say, your Honours, that appears to have been an endeavour to paraphrase what is at page 50, paragraph 158.  It is simply, your Honours, saying, I suppose, the conclusion must be drawn because that was the result that was arrived at. 

Your Honours, could I then go back to the Court of Appeal, paragraph 77, where the fourth contention has been set out in paragraph 76.  May we just say this, your Honours?  It is suggested that there was an assumption, as is put in paragraph 77, that hepatologists would have been concerned with the applicant’s obesity – sorry, your Honours, I am putting it badly.  The reference to an assumption said to be involved:

that the hepatologists would have been particularly concerned about the plaintiff’s obesity.  However, that was not indicated on the evidence.

But, your Honours, that does seem rather inconsistent with the findings to which the judge himself had made reference – the findings of the primary judge to which reference is made in paragraph 60 and 61 on page 103. 

CRENNAN J:   The Court of Appeal does go to all the experts, does it not, in the following – Justice Basten in the following paragraphs?  Your complaint – and tell me if I am wrong – seems to be that, I take it by reference to Bolitho, that the Court of Appeal should have somehow found that the experts other than Dr Vickers were not responsible, reasonable and respectable, those sorts of epithets that he used in the relevant cases.

MR JACKSON:   Could I put it in this way, your Honour.  To put it shortly, what in our submission should have occurred is that it should have been determined by the court on the balance of probabilities.  When I say the court, I will identify which court in a moment.  It should have been determined by the court on the balance of probabilities whether if he had been referred to a hepatologist, he would or should have been referred on for bariatric surgery.

Now, what the Court of Appeal appears to have done is to determine the case, determine the question not in that way.  Rather, what it did was to accept, at least implicitly, that the plaintiff loses if there are competing opinions about what a reasonable liver specialist might have done or caused to be done.  Your Honours will see that at paragraph 78, page 108, and you will see his reference to it being:

by no means clear that the hepatologists would have referred to a bariatric surgeon –

Your Honours will then see that what is set out there are the various passages of the evidence, and if one looked at the evidence and went back to that passage of the evidence of Dr Vickers to which I referred earlier which said, in effect, once you get to this point and if you have got someone who is not susceptible to weight loss by conservative means, the only course that is available is bariatric surgery.  The court, in our submission, by not going on to make a finding, adopted a kind of – if I can use the expression, your Honours – Bolam test as part of the law of causation, namely that it is sufficient if the defendant introduces evidence that non‑referral was an option and that has the result that the plaintiff loses.  Rather, the court needs to decide the question itself, in our submission, rather than critically accept the evidence that there were two courses open.

Now, your Honours, I said the question of what court.  Your Honours, it is a case where, in our submission, the primary judge should have done so and the Court of Appeal should have done so.  If the Court were to grant special leave and the appeal were to succeed, an issue may well arise as to the course that this Court would take but, your Honours, it should be by either deciding itself or referring it to one of the courts below.  Your Honours, those are our submissions.

CRENNAN J:   We do not need to trouble you, Mr Higgs.

In March 2012, the applicant commenced proceedings against the respondent in the Common Law Division of the Supreme Court of New South Wales claiming damages in negligence.  The applicant claimed that the respondent was legally responsible for the consequences of his pre‑existing liver disease progressing to cirrhosis, liver failure and eventually liver cancer. 

On 18 April 2013, the Court of Appeal of the Supreme Court of New South Wales unanimously allowed the respondent’s appeal and set aside the judgment and orders of the primary judge.  The applicant seeks special leave to appeal from that decision.  The proposed grounds of appeal challenge findings of the Court of Appeal in respect of the facts, particularly the expert evidence, and raise a question concerning factual causation in the law of negligence and the possible conduct of third parties.

In our view, there are insufficient reasons to doubt the correctness of the Court of Appeal’s decision.  Special leave to appeal is refused with costs.

AT 2.25 PM THE MATTER WAS CONCLUDED