Baker v Hardcastle

[2000] WASCA 166

BAKER -v- HARDCASTLE [2000] WASCA 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 166
Court:	THE FULL COURT (WA)
Case No:	FUL:145/1999	Heard:	23 MARCH 2000
Coram:	PIDGEON J WALLWORK J PARKER J	Delivered:	16/06/00
No of pages:	28	Judgment Part:	1 of 1
Result:	Appeal dismissed.
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Parties:	GEORGE EDWARD BAKER PHILIP HOBSON HARDCASTLE
Catchwords:	Negligence Breach of duty Orthopaedic surgeon Whether failure to warn of material risks in proposed surgery No new principles Appeal Amendment of statement of claim on appeal Trial conduct on existing pleadings Amendment proposed would raise different case No new principles
Legislation:	Nil
Case References:	Rogers v Whitaker (1992) 175 CLR 479 Abalos v Australian Postal Commission (1991) 171 CLR 167 Agbaba v Witter (1977) 51 ALJR 503 Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Bootle v Kettlewell (1993) A Tort Rep 81-250 Breen v Williams (1996) 186 CLR 1 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Burnett v Kalokerinos, unreported; SCt of NSW; Library No 11138; 22 March 1995 Calin v Greater Union Organisation Pty Ltd (1991) 65 ALJR 426 Canterbury v Spence (1972) 464 F 2d 772 Casey v Provan (1984) 11 DLR (4th) 708 Causer v Stafford-Bell, unreported; SCt of ACT; SC 339 of 1993; 14 November 1997 Chambers v Jobling (1986) 7 NSWLR 1 Chappel v Hart (1998) 156 ALR 517 Chappel v Hart (1998) 195 CLR 232 Considine v Camp Hill Hospital (1982) 133 DLR (3d) 11 Devries v Australian National Railways Commission (1993) 177 CLR 472 Diack v Bardsley (1983) 25 CCLT 159 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 EM Baldwin & Son Pty Ltd v Plane (1999) A Tort Rep 81-449 F v R (1983) 33 SASR 189 Ferguson v Hamilton Civic Hospitals (1983) 144 DLR (3d) 214 Galea v Galea (1990) 19 NSWLR 263 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Gover v South Australia (1985) 39 SASR 543 H v The Royal Alexandra Hospital for CHildren (1990) A Tort Rep 81-000 Hallmark-Mitex Pty v Rybarczyk, unreported; SCt of Qld CA; 11009 of 1997; 4 September 1998 Hoffman v Commonwealth [2000] WASC 9 Hopp v Lepp (1980) 112 DLR (3d) 67 Karpati v Spira, unreported; SCt of NSW; Library No 15853/92; 6 June 1995 Kavanagh v Akhtar (1998) 45 NSWLR 588 Locher v Turner, unreported; SCt of Qld CA; 14 of 1995; 21 April 1995 Lybert v Warrington Health Authority [1996] 7 Med LR 71 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Martin v Byrnes [1999] NSWCA 144 Mason v Forgie (1984) 31 CCLT 66 McAllister v Lewisham and North Southwark Health Authority [1994] 5 Med LR 343 McCann v Parsons (1954) 93 CLR 418 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Meyer Estate v Rogers (1991) 78 DLR (4th) 307 Naxakis v Western General Hospital (1999) 73 ALJR 782 O'Sullivan v Little, unreported; SCt of ACT; SC 225 of 1993; 10 August 1995 Pateman v Higgin (1957) 97 CLR 521 Percival v Rosenberg [1999] WASCA 31 R v Bateman (1925) 94 LJKB 791 Rawlings v Lindsey (19820 20 CCLT 301 Reibl v Hughes (1980) 114 DLR (3d) 1 Rogers v Whitaker (1992) 175 CLR 479 Rowe v Edwards (1934) 51 CLR 351 Scheggia v Fasano [1980] VR 664 Seney v Crooks (1996) 30 CCLT (2d) 66 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 Smith v Salford Health Authority [1994] 5 Med LR 321 Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Tai v Saxon, unreported; FCt, SCt of WA; Library No 960113; 8 February 1996 Taylor v Johnson (1983) 151 CLR 422 The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997 Vale v Ho, unreported; DCt of NSW; 11 May 1995 Videto v Kennedy (1981) 125 DLR (3d) 127 Voulis v Kozary (1975) 180 CLR 177 Warren v Coombes (1979) 142 CLR 531 Webb v Bloch (1928) 41 CLR 331 Western Australia v Watson [1990] WAR 248 Wilsher v Essex Area Health Authority [1987] QB 730

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BAKER -v- HARDCASTLE [2000] WASCA 166 CORAM : PIDGEON J

WALLWORK J
PARKER J

HEARD : 23 MARCH 2000 DELIVERED : 16 JUNE 2000 FILE NO/S : FUL 145 of 1999 BETWEEN : GEORGE EDWARD BAKER

Appellant (Plaintiff)

AND

PHILIP HOBSON HARDCASTLE
Respondent (Defendant)

Catchwords:

Negligence - Breach of duty - Orthopaedic surgeon - Whether failure to warn of material risks in proposed surgery - No new principles

Appeal - Amendment of statement of claim on appeal - Trial conduct on existing pleadings - Amendment proposed would raise different case - No new principles

Legislation:

Nil

Result:

Appeal dismissed.

(Page 2)

Representation:

Counsel:

Appellant (Plaintiff) : Mr N J Mullany
Respondent (Defendant) : Mr J R B Ley

Solicitors:

Appellant (Plaintiff) : Bradford & Co
Respondent (Defendant) : Minter Ellison

Case(s) referred to in judgment(s):

Rogers v Whitaker (1992) 175 CLR 479

Case(s) also cited:

Abalos v Australian Postal Commission (1991) 171 CLR 167
Agbaba v Witter (1977) 51 ALJR 503
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Bootle v Kettlewell (1993) A Tort Rep 81-250
Breen v Williams (1996) 186 CLR 1
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Burnett v Kalokerinos, unreported; SCt of NSW; Library No 11138; 22 March 1995
Calin v Greater Union Organisation Pty Ltd (1991) 65 ALJR 426
Canterbury v Spence (1972) 464 F 2d 772
Casey v Provan (1984) 11 DLR (4th) 708
Causer v Stafford-Bell, unreported; SCt of ACT; SC 339 of 1993; 14 November 1997
Chambers v Jobling (1986) 7 NSWLR 1
Chappel v Hart (1998) 156 ALR 517
Chappel v Hart (1998) 195 CLR 232


(Page 3)

Considine v Camp Hill Hospital (1982) 133 DLR (3d) 11
Devries v Australian National Railways Commission (1993) 177 CLR 472
Diack v Bardsley (1983) 25 CCLT 159
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
EM Baldwin & Son Pty Ltd v Plane (1999) A Tort Rep 81-449
F v R (1983) 33 SASR 189
Ferguson v Hamilton Civic Hospitals (1983) 144 DLR (3d) 214
Galea v Galea (1990) 19 NSWLR 263
Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Gover v South Australia (1985) 39 SASR 543
H v The Royal Alexandra Hospital for CHildren (1990) A Tort Rep 81-000
Hallmark-Mitex Pty v Rybarczyk, unreported; SCt of Qld CA; 11009 of 1997; 4 September 1998
Hoffman v Commonwealth [2000] WASC 9
Hopp v Lepp (1980) 112 DLR (3d) 67
Karpati v Spira, unreported; SCt of NSW; Library No 15853/92; 6 June 1995
Kavanagh v Akhtar (1998) 45 NSWLR 588
Locher v Turner, unreported; SCt of Qld CA; 14 of 1995; 21 April 1995
Lybert v Warrington Health Authority [1996] 7 Med LR 71
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Martin v Byrnes [1999] NSWCA 144
Mason v Forgie (1984) 31 CCLT 66
McAllister v Lewisham and North Southwark Health Authority [1994] 5 Med LR 343
McCann v Parsons (1954) 93 CLR 418
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Meyer Estate v Rogers (1991) 78 DLR (4th) 307
Naxakis v Western General Hospital (1999) 73 ALJR 782
O'Sullivan v Little, unreported; SCt of ACT; SC 225 of 1993; 10 August 1995
Pateman v Higgin (1957) 97 CLR 521
Percival v Rosenberg [1999] WASCA 31
R v Bateman (1925) 94 LJKB 791
Rawlings v Lindsey (19820 20 CCLT 301
Reibl v Hughes (1980) 114 DLR (3d) 1
Rogers v Whitaker (1992) 175 CLR 479
Rowe v Edwards (1934) 51 CLR 351
Scheggia v Fasano [1980] VR 664
Seney v Crooks (1996) 30 CCLT (2d) 66
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871
Smith v Salford Health Authority [1994] 5 Med LR 321


(Page 4)

Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Tai v Saxon, unreported; FCt, SCt of WA; Library No 960113; 8 February 1996
Taylor v Johnson (1983) 151 CLR 422
The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997
Vale v Ho, unreported; DCt of NSW; 11 May 1995
Videto v Kennedy (1981) 125 DLR (3d) 127
Voulis v Kozary (1975) 180 CLR 177
Warren v Coombes (1979) 142 CLR 531
Webb v Bloch (1928) 41 CLR 331
Western Australia v Watson [1990] WAR 248
Wilsher v Essex Area Health Authority [1987] QB 730

(Page 5)

1 PIDGEON J: I agree with the reasons of Parker J. I would dismiss the appeal and would refuse leave to amend the statement of claim.

2 WALLWORK J: I agree with the reasons for judgment of Parker J. There is nothing I wish to add to those reasons.

3 PARKER J: The appellant brought proceedings against the defendant who practised as an orthopaedic surgeon for professional negligence. After a trial lasting six days, which was conducted by his Honour Judge O'Sullivan QC in the District Court, the appellant's claim was dismissed with costs on 3 September 1999.

4 The appellant seeks to have the judgment of the District Court set aside and in lieu an order for judgment in his favour with the assessment of damages to be remitted to the District Court. Alternatively, he seeks an order for re-trial of the action.

5 The appellant was a retired man in his early 70's when, in January 1992, he consulted the defendant in relation to pain in his lower back and in his left groin. The back condition was of long standing, some 13 years, and the plaintiff had received a good deal of medical treatment for it. Significantly, he had undergone surgery on the spine in the past. Neither the treatment nor the surgery had provided relief. It seems that the appellant had endured groin pain for even longer. He had also undergone surgery to the groin but this had not provided relief. Such was the pain and discomfort the appellant was experiencing from these conditions by 1991 and 1992 that he consulted a number of specialists and eventually came to be referred to the respondent. This occurred at the suggestion of another orthopaedic surgeon, who had recommended surgery, but who no longer operated. There was divergent advice to the appellant at the time whether the groin pain and the lower back pain were related or independent.

6 The defendant initially diagnosed spinal stenosis at L2/3 and L3/4 in combination with lumbar scoliosis and segmental instability from L2 to L5. He recommended surgery to perform a spinal fusion from L2 to L5 and a decompression over segments of the spine. The operation was performed in February 1992. This involved a posterolateral fusion from L2 to L5 and stabilisation with a Hartsill rectangle and wires. He also decompressed the right L2/3, L3/4 and L4/5 levels of the spine.

7 The appellant complained the surgery was not a success. He alleged it resulted in an increase in the lower back pain he had been experiencing

(Page 6)

and an acceleration of degenerative changes in adjacent segments in the spine. The appellant then underwent a number of operations by other surgeons, which he claimed were a consequence of the respondent's surgery, and in the action he claimed also for the scarring and disfigurement caused by these as well as the pain and discomfort associated with them.

8 In the further amended substituted statement of claim the appellant's case at trial raised negligence with respect to the respondent's diagnosis, the performance of his surgery and in failing to warn the appellant of material risks associated with the surgery so that the appellant's consent was not "informed". His claims failed in every respect. The notice of appeal to this Court was also wide ranging, but at the hearing the appellant's case on appeal was confined to some aspects of the case with respect to the issue of informed consent.

9 With respect to informed consent, the appellant's pleading at trial alleged breach by the defendant of a duty of care to the plaintiff to inform the plaintiff of any risks associated with the treatment to be administered by him and to seek and obtain the plaintiff's informed consent to any surgical procedure. By way of particulars of this allegation the statement of claim further alleged -

"10.4 The defendant was negligent in that he failed to obtain the plaintiff's informed consent to the surgery:

(a) at all material times the surgery contained inherent risks

Particulars of risks


(1) the plaintiff's low back symptoms could worsen

(2) the fusion may not go onto union

…

(7) further operations may be necessary


…

(d) the plaintiff would have attached significance to the risks … had the defendant informed him accordingly

(Page 7)

(e) the defendant ought to have advised the plaintiff that surgery within a multi-level degenerative spine carried a poor prognosis

(f) the defendant ought to have advised the plaintiff that 'the adult degenerative scoliosis group are a most difficult group' before the surgery."

10 By the re-amended substituted defence negligence was denied and, relevantly, it was pleaded

"9. Prior to the operation on 26 February 1992, during the consultation on 23 January 1992, the defendant orally warned the plaintiff of the risks of undergoing a surgical procedure such as the one the defendant performed on 26 February 1992. In particular the defendant told the plaintiff inter alia that:

(a) there was no guarantee that the operation would relieve the plaintiff's back pain;

(b) there was a possibility that the operation might make the plaintiff's back pain worse;

(c) the operation involved a bone graft and it was possible the bone graft might not 'take';

(d) if the bone graft did not take, the operation would certainly not relieve the plaintiff's back pain; and

(e) if the bone graft did not take another operation might be necessary.


10. Alternatively, even if the defendant had administered to the plaintiff all the warnings and had provided to the plaintiff all the information in paragraph 10.4 of the re-amended substituted statement of claim, the plaintiff would have elected in any event to have the defendant perform the surgery which he recommended."

11 The trial proceeded on the basis of these pleadings. An exchange of statements had been ordered and the statements became the substance of the evidence-in-chief of the witnesses at trial.
(Page 8)

12 The appellant's evidence in essence was that while the respondent had recommended that he undergo surgery he was not warned of any risks associated with it. The written consent he gave to undergoing the surgery was given in ignorance that there were risks or that the surgery might not be successful. The appellant 's evidence in his statement included the following:

"79. If Mr Hardcastle had suggested to me that the operation carried inherent risks including death from anaesthetic, nerve damage, the possibility I may need further operations or the possibility that my back pain may not be improved or may get worse then I would have given that some thought and would have attached some significance to that."

13 The respondent said in his statement:

"11. Usually I tell patients, in percentage terms, the chance of success. I cannot remember if I gave Mr Baker a figure, if I did I would have told him there was a 60 per cent chance of the operation relieving his pain. In discussing the likely outcome of surgery I made it clear to Mr Baker that, compared to most patients, he had a lesser chance than normal of having a good result."

14 This passage was put to the appellant in cross-examination. The transcript of this reads as follows:

"Mr Hardcastle will also say that he said to you that there was a 60 per cent chance of the operation relieving your pain?---No.

You are just shaking your head. What are you saying - you don't remember?---I'm saying, no, it didn't happen.

You're saying that he didn't say that to you?---That's right.

He will of course say that that's exactly what he told you. What are you saying about him saying that? Are you saying that he's lying about it?---I'm not saying anything. I'm just saying that from my knowledge it didn't happen. It wasn't said. I would remember something like that, you know. It's pretty crucial, isn't it?

(Page 9)

It is crucial?---Yes. I would remember that for sure. Maybe I can forget a few simple things but not something like that and I certainly wouldn't have gone ahead with an operation knowing that."

The last two questions and answers may well relate not only to the issue of a 60 per cent chance of relief but also to another matter which had been put to the appellant immediately preceding the passage quoted above.

15 The cross-examination then continued as follows -

"He'll say that in discussing the outcome of the surgery he made it clear to you that compared to most patients you had a lesser chance than normal of having a good result? --- I don't recall that.

You don’t recall that, so he might have spoken to you about that? --- Well, it's obvious that I would want to know the answer to that statement, wouldn't I? Why would I have a lesser chance? You've got to understand that.

---

He'll say he said that to you? --- I'm saying it wasn't said to me."

In cross-examination of the respondent the following is recorded:

"I think you admit there, don't you, in a way that you have no recollection giving Mr Baker a figure of 60 per cent?---If I did give him a figure, that would be the figure I would have given him.

You can't tell us whether you did or didn't?---No, but I certainly would have told him that he had a less - he wouldn't have an 80 per cent chance."


(The respondent in his evidence described 80 per cent as normal for a two-level fusion but that in other cases there may be only a 30 or 40 per cent chance of a bone fusion taking as with someone with a number of medical illnesses as he described.)

"Yes, but you yourself admitted you never told him in percentage terms then?---I cannot recall telling him in percentage terms, correct.

(Page 10)

Do you accept that he says that you never told him that?---Told him what, 60 per cent?

Yes?---Well, I thought I answered that by explaining - - -

Do you accept that he say - - -?---I would accept that I may not have told him 60 per cent."

16 In a letter dated 9 June 1992 to the appellant's general practitioner, the respondent had reported that there was not yet to be seen any improvement in the appellant's pre-operative symptoms. The respondent went on to observe "I must admit the adult degenerative scoliosis group are a most difficult group." This was taken up with the respondent in cross-examination as follows:

"You say there, Mr Hardcastle, "I must admit the adult degenerative scoliosis group are a most difficult group"?---Yes.

That's an explanation that you offered to the general practitioner for the fact that Mr Baker had got worse, is it?---No, it's a statement I've made about this particular group.

Is it an afterthought, Mr Hardcastle?---Well, I wouldn't say it's an afterthought.

Why do you use the words "I must admit"?---Because they are a difficult group.

You hadn't told the general practitioner that before, had you?---Not in writing.

And I suggest to you also that you hadn't told Mr Baker that the adult degenerative scoliosis group are a most difficult group?---I disagree.

My question was: did you warn Mr Baker that the adult degenerative scoliosis group were a more difficult group?---I would have explained to Mr Baker that the adult scoliosis group required a longer fusion, therefore there is more chance of failure of fusion and the problems associated - - -

You have no recollection of that, Mr Hardcastle?---I have a recollection - I know what I would have explained as part of my routine practice.

(Page 11)

Mr Baker was a special case, wasn't he?---He was an unusual case, yes.

And so that he wasn't necessarily always part of your routine practice, was he?---Yes. I have a routine practice for all patients undergoing spinal surgery.

Mr Baker had special problems, didn't he?---He had a combination of several pathologies, yes.

And required several warnings compared to other patients?---The warnings are what are given as part of my routine and, as far as I'm aware all other spinal surgeons in Australia, are general warnings and then specific warnings depending on the procedure that's to be undertaken.

I would suggest to you, Mr Hardcastle, that you never warned Mr Baker in any way whatsoever that he was part of any special group at risk?---I warned Mr Baker, as this is my routine practice, that in patients with his particular problem, the chances of success are not as good as someone who has got, say, a one-level problem where you're doing a one-level fusion and this certainly came out in evidence from Prof Fraser, that the more levels we do, the less chance of bone fusion and the more chance of failure."

"Mr Hardcastle, did you ever at any time give Mr Baker a figure by way of percentage or otherwise of getting worse?---It's explained to all patients undergoing spinal surgery that there is a small chance of getting worse. Sometimes I give a figure and if I have to give a figure it's 5 per cent which would be the situation in this situation, and I'm talking purely fusion, or discussing purely fusions, or sometimes just the general comment that 'Your condition is getting worse. The operation itself may not affect your condition. You may continue to get worse', or also that, 'As a result of one of the complications there's a chance of being worse but that's the risk that you have to take when you undergo major spinal surgery.'

Can you answer my question yes or no?---I thought I had answered your question.

Can you remember ever having warned him of a percentage change of getting worse?---I can't specifically recall - - -

(Page 12)

That's okay?--- - - - the consultation except for small aspects of it, but I have my routine practice."

"Was it important for Mr Baker to know the percentage change of getting worse?---It was important for Mr Baker to realise that there was a small chance of him getting worse, yes.

That small chance you say was 5 per cent?---If I have use a figure, I would use 5 per cent in this situation.

So that he has got a 95 per cent chance of staying the same or getting better?---Correct.

Did you tell him that?---I would almost certainly not have told him that.

Is it your opinion that in this case Mr Baker had a 95 per cent chance of staying the same or getting better?---In my opinion that would be a correct summation.

Do patients without scoliosis have a higher than 95 per cent chance, do they?---No. Patients without scoliosis have a similar risk of being worse, which would be about - the figure I generally give is about 5 per cent.

I see. That's what you routinely give to your patients?---If I'm asked for a figure, that's what I would give.

Yes, but you don't - - -?---But as a general rule as part of my routine practice I would say a small risk.

So you tell them all 5 per cent?---Well, I tell them a small risk. Sometimes I will use 5 per cent; sometimes I won't.

But in each case it's 5 per cent. Is that what you're saying?---One thing you have got to appreciate is that we're dealing with different individuals and different patients. We have our standard, routine practice and certain people want figures. Some people just want overall - - -

So your answer is if you don't tell them a small chance of getting worse and if a figure is mentioned, it's always 5 per cent?---It's about 5 per cent."

A little later he was asked:

(Page 13)

"Mr Baker had a much greater risk than 5 per cent of getting worse as a result of this operation, I put to you, Mr Hardcastle?---I would have thought about 5 per cent or less. It's hard to put figures on this."

17 More generally with respect to these matters, in re-examination the respondent said:

"Dealing specifically with the warnings which you gave Mr Baker, you explained those in terms of your routine practice?---Correct.

How confident are you that your routine practice corresponded with what in fact you told Mr Baker on that occasion?---I'm certain it occurred."

"Mr Hardcastle, can I just stop you there and if I may return you to the question I asked and that is: how does the difficulty with this gentleman's problem have a bearing on your confidence that your routine practice accorded with the fact?---Maybe I'm misunderstanding the question but my routine practice is carried out with all patients undergoing surgery to start with and in this situation it was slightly different because he had a worse or more significant problem in terms of the pathology than a number of the patients that I see for reasons that I have mentioned earlier in my evidence and there is not a patient that I have seen or assessed who I'm going to undertake surgery of this or spinal fusion nature who hasn't had the warnings that I have put in evidence."

18 The cross-examination of the respondent at the trial was extremely extensive. The passages noted above indicate the substance of the evidence of the respondent dealing with the issue of informed consent, in so far as it is relevant to the issues raised on this appeal, including the risks and prospects of the appellant in undergoing the proposed surgery.

19 Four expert medical witnesses were called. Each gave substantial evidence. These witnesses were an orthopaedic surgeon Mr Slinger, Professor Fraser a spinal surgeon, Mr Rough an orthopaedic and trauma surgeon and Mr Vaughan a neurosurgeon. Mr Slinger and Professor Fraser were called for the appellant and the other two for the respondent.

(Page 14)

20 No one of these specialist surgeons, nor any other medical witness, was taken by either counsel to the matters identifiable from the passages dealt with above in the evidence of the respondent, ie whether there was a 60 per cent or some other percentage chance that the proposed surgery would succeed, the degree of risk that the appellant's condition might worsen after the surgery, whether in January 1992 the appellant was a member of a most difficult group of patients in the context of the prospects of success of this surgical procedure and, if so, what was the effect of this element on the appellant's prospects from the surgery.

21 In his closing address at the trial, counsel then appearing for the appellant, when dealing with the appellant's case that there had been a failure to warn the appellant of material risks and therefore a failure by the respondent to obtain an informed consent, inter alia submitted to the trial judge that there had been a failure by the respondent to warn the appellant that:

(1) There was only a 60 per cent chance of this surgery succeeding;

(2) There was a greater than 5 per cent chance that the appellant's condition would be worse following the surgery; and

(3) The appellant was a member of a most difficult group of surgical patients, ie those with adult degenerative scoliosis, in relation to which group the chances that the proposed surgery would fail were greater than for ordinary patients undergoing such surgery.

The submission was that, by virtue of the failure of the respondent to warn of each of these three "material risks", the consent of the appellant was not "informed".

22 In the leading authority of Rogers v Whitaker (1992) 175 CLR 479 the following statements are made in the course of the joint judgment of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ

"… while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his own life' (F v R (1983) 33 SASR at 193).", at 487,

(Page 15)

"… except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended (Chatterton v Gerson [1981] QB 432 at 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.", at 489, and

"The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.", at 490.

23 The trial Judge, in my view, directed himself correctly in these respects. I would note that while an understanding of the place and relevance of medical evidence in determining what is the relevant information, and the different place and relevance of medical evidence in determining the distinct question whether there had been an adequate communication to the patient of the relevant information, has been informed by the decision in that case, it is not the effect of that decision that expert medical opinion has no relevance to either of those questions.

24 With respect to the closing submission of counsel for the appellant at the trial it will be immediately apparent that neither a failure to warn of a 60 per cent chance of success, nor a greater than 5 per cent risk of the appellant's condition worsening, found any express place in the allegations and particulars in the statement of claim. Only the adult degenerative scoliosis group issue was identified in any form in the statement of claim and it was merely raised in the attenuated manner quoted earlier in these reasons, by par 10.4(f) of the statement of claim.

25 In his reasons for decision the trial judge identified the pleadings and particulars as to this issue and concisely and adequately directed himself

(Page 16)

in law. He then reviewed the substance of the evidence, identifying it accurately and fairly. With regards to the dispute apparent from the evidence as to what was actually said to the appellant by the respondent, his Honour found:

"I am not persuaded on the balance of probabilities that the plaintiff was not warned of any risks attendant upon the proposed surgery. In my view it is quite clear on all the evidence that the manner in which the surgery was to be performed was discussed between himself and the defendant. I am also quite satisfied that the plaintiff was informed of the defendant's proposal to carry out a fusion at three levels. In these circumstances I think that it is most unlikely that the defendant did not give the plaintiff an explanation and warning of the risks in the terms set out in his evidence and I reject the evidence of the plaintiff to the extent that it conflicts with it."

His Honour referred to the respondent's letter of 9 June 1993 quoted earlier and observed:

"In my view it is clear that in referring to the adult degenerative scoliosis group as "a most difficult group" the defendant was commenting upon his finding that day that as yet there had been no improvement in Mr Baker's pre-operative symptoms. The words used by the defendant to the general practitioner should, I think, be read as a comment made upon the difficulties of predicting the progress of patients falling within the group of which the plaintiff formed part. In my view the fact that the defendant wrote them does not provide a justification for the conclusion that the warnings which he in fact gave to the plaintiff were inadequate."

In my respectful view, this understanding of the point and effect of the evidence is one which was reasonably open to the trial Judge on the evidence. As understood by the trial Judge, the passage in the letter of the respondent is not referring to the problems presented by this group pre-surgery, or to the prospects of success or failure of the contemplated surgery in relation to this group. The conclusion of his Honour in respect of this issue was, therefore, one which was open to him.

26 The learned trial Judge went on to observe in his reasons:

"Counsel for the plaintiff made two specific admissions: [submissions]

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(a) That the evidence establishes that the plaintiff had more than a 5 per cent chance of being worse off after the surgery and the warnings given by the defendant did not make that clear.

(b) That the surgery only had a 60 per cent chance of success.

In my view the evidence does not establish that the plaintiff had a more than 5 per cent chance of getting worse after the surgery. Counsel was unable to point to any evidence which specifically went to prove that contention. No direct question was put to any of the expert witnesses with a view to establishing it. It is true that Professor Fraser spoke of an increased risk of multi-level fusion and mentioned that the risk of non-fusion in a three level fusion was 10 per cent greater than the risk of non-fusion in a two level fusion but that is a different risk to the one counsel was contending the plaintiff should specifically have been warned of."

I interrupt this quotation from the reasons to observe that I can find no reference in the evidence to any risk greater than 5 per cent that the appellant might get worse after the surgery. Indeed, the only reference to 5 per cent appears to be those quoted above from the cross-examination of the respondent who said "If I have to give a figure its 5 per cent which would be the situation in this situation …". As I understood the submission for the appellant, it is contended that this reference by the respondent to 5 per cent must be interpreted as a risk of 5 per cent for normal cases, and if one has regard to the particular problems of the appellant and those with similar conditions to his the conclusion must be drawn that his prospects of being worse after the surgery were greater than 5 per cent. While such a view might be open on the evidence, it is one which I would hesitate to draw. Having regard, in particular, to the matters identified by the trial Judge in the passage noted from his reasons, it appears to me there is no sufficient justification on appeal for forming any different view from that of the trial Judge as to the effect of the evidence on which the appellant seeks to rely, albeit at times somewhat tenuously, with respect to this issue. The trial Judge had clearly specifically directed his mind to the proposition advanced before him for the appellant and he is not shown to have misconstrued or overlooked any material evidence as to this issue. Indeed it accords entirely with the final answer of the respondent on this issue when cross-examined, which answer has been noted earlier.

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27 In the course of the argument on the appeal some support for the appellant's case against this finding seemed to be sought by way of an implication from the evidence of the respondent that the prospects of success were 60 per cent. The submission seemed to be that as a consequence there must have been a 40 per cent prospect of failure, but this misunderstands the evidence. In my view, the effect of the evidence as to this may be summarised as contemplating three possible results, not merely two: success, ie an improvement in condition of which there was 60 per cent chance; failure, ie a worse post-operative condition of which there was a small chance, 5 per cent or less; and no change, which was the prospect for the remainder, ie some 35 per cent. Hence, it is not the case that there was a 40 per cent prospect of failure.

28 In my respectful view, it has not been demonstrated that the trial Judge erred in his finding that the evidence did not establish that there was a greaterthan 5 per cent risk that the appellant's condition would be worse from the surgery.

29 His Honour's reasons continued:

"I have already set out the defendant's evidence which makes it clear that he says that he may not have mentioned that there was a 60 per cent chance of the operation relieving his pain. Counsel for the plaintiff submitted that that was a matter about which the plaintiff should have been specifically warned and that it was clear that he was not.

I am not prepared to find that the defendant did not mention the figure of 60 per cent to the plaintiff. It is true that he concedes that he might not have but it nevertheless remains the case that for the plaintiff to succeed I must be satisfied on the balance of probabilities that he did not and in my view the evidence does not warrant that conclusion. I have already rejected the plaintiff's evidence which was to the effect that there was no discussion of the chances of success of the operation and I have accepted that the defendant did tell the plaintiff that there was no guarantee that the operation would relieve pain. In my view it is more likely than not in those circumstances that the plaintiff would have responded to that advice by asking what the chances were and that the defendant would have mentioned a figure of 60 per cent."

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This finding is attacked as not supported by the evidence . His Honour had the difficult task of attempting to determine what was said in a conversation which occurred some seven and a half years before trial. The appellant carried the onus before his Honour. His evidence was that nothing was said at all about the nature and risks of the operation and this was maintained with particular reference to the 60 per cent when that was put to him. In a number of respects briefly canvassed earlier in these reasons, the trial Judge had found on the evidence that, contrary to this general assertion of the appellant, specific matters had been discussed concerning the nature of the proposed surgery and its risks. In these respects, the findings of his Honour were, in my respectful view, well open to him. A consequence of these findings, of course, is that the credibility of the appellant, or at least the reliability of his recollection about the material conversation, was found to be wanting.

30 With particular regard to the 60 per cent, the respondent, as has been noted, had no positive recollection of his actual words to the appellant but he was able to speak of a practice which, on his evidence, he followed invariably at the time in cases of this type. Even from the transcript it is apparent that it was open to the trial Judge to conclude that the respondent held to the position that this was his invariable practice with some firmness and certainty. We do not, of course, have the advantage that was his Honour's of being able to assess the demeanour either of the appellant or the respondent as they gave their evidence, whether generally or with regard to this particular issue. Neither the evidence of the appellant nor of the respondent is obviously implausible as to this issue. The manner in which the evidence was given by each of them as to this issue, and generally, is likely therefore to have weighed with some significance in his Honour's assessment of the personal credibility and reliability of each of them. This is so in particular as to the reliability of the memory upon which the appellant's evidence was said to be founded, and also as to the strictness with which the practice relied on by the respondent was observed. In these circumstances it has not been demonstrated that his Honour has misused the advantage he had of assessing the personal demeanour of the appellant or the respondent with respect to this issue. While the evidence for each side is not very satisfactory, it has not been shown it was not open to the trial Judge to be dissatisfied with the reliability of the evidence of the appellant in this respect. In my view it was open to his Honour to be satisfied on the balance of probabilities that the respondent did have the practice to which he adverted and that it was followed on this occasion.

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31 Further, that being so, while the foundation for the inference cannot be said to be strong, given the circumstances and the general tenor of the relevant evidence of the appellant and no doubt his demeanour as he gave the evidence, in my view it cannot be concluded that it was not open, as a matter of probability, to his Honour to be satisfied as a matter of inference that the appellant would have sought to know more specifically what the chances were, indeed there are answers of his during cross-examination which are eloquent of such an implication, and that in response the respondent nominated 60 per cent, applying his established practice to the circumstances of the appellant as the appellant appreciated them.

32 His Honour's reasons then follow on immediately to say:

"In any event I am not satisfied on all the evidence that there is any failure by the defendant to warn the plaintiff of any material risk. While the defendant gave evidence that if he did mention a degree of risk he would have said there was a 60 per cent chance of success there was no other evidence, and in particular no evidence from experts, that it was material in the sense explained in Rogers v Whitaker (supra) to mention 60 per cent rather than to use the words which the defendant in fact used.

In my view the warnings which were given by the defendant were adequate to discharge the duty owed by him."

The appellant contends that there is a direct conflict between the concluding phrase of the first of these two paragraphs with the positive finding in the immediately preceding paragraph that he "would have mentioned a figure of 60 per cent". The words used are not as clear as they might be, but I am not persuaded that conflicting findings are revealed. The opening words of the paragraph are "In any event …". Following immediately on, as they do, from the finding that 60 per cent was mentioned, the words "In any event …" indicate to me that his Honour is turning to consider the alternative case, ie even had the respondent not mentioned 60 per cent. On that hypothesis, which is contrary to his actual finding, as I understand the paragraph his Honour notes the absence of evidence from the other expert witnesses about the 60 per cent and in particular as to whether or not it would have been material in the sense identified in Rogers v Whitaker (supra) to mention 60 per cent rather than to have said as the respondent noted in his statement "I made it clear to Mr Baker that, compared to most patients, he had a lesser chance than normal of having a good result".

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33 While these observations correctly reflect aspects of the evidence they also reveal, in my respectful view, a failure correctly to apply Rogers v Whitaker. As indicated earlier, what is there identified is an objective test whether a person in the position of the appellant would be likely to attach significance to the risk. Whether or not there is expert evidence, in my view it is open to the trial Judge to seek to apply that objective test to the circumstances disclosed by the evidence. This was not done in the present case. This failure, however, is not determinative of this appeal. This is a passage dealing only with an alternative hypothesis. The primary finding is that the respondent did identify the chances of success as being 60 per cent. That finding is not affected by the consideration, given by the trial Judge in the alternative, to the position which would have arisen had the respondent not indicated to the appellant that the chances of success from the surgery were some 60 per cent. Thus, it has not been shown either that the passage now under consideration revealed a conflicting finding of fact on the part of the trial Judge, or contained an error of law that affects the ultimate decision reached by his Honour.

34 There was also some contention on appeal that this figure of 60 per cent was the chance of success in ordinary cases yet, as the evidence of the respondent and other experts revealed, the appellant was not an ordinary case so that his chances of success must have been less than would ordinarily be expected. This is a factual issue which did not receive detailed exploration at trial, however, and there is little to add to the passage from the respondent's statement quoted earlier in these reasons and his brief cross-examination in that regard. On the natural reading of this passage in the statement the 60 per cent would appear to relate to the appellant's particular circumstances rather than being a figure applicable generally. In the respondent's cross-examination quoted earlier in these reasons the answer of the respondent that 60 per cent "would be the figure I would have given him" more naturally suggests that 60 per cent was the percentage appropriate to the circumstances of the appellant. Indeed, in the very next answer he mentions that he would not have told the appellant that he had an 80 per cent chance. That would tend to confirm that 60 per cent was a reduced figure appropriate to the case of the appellant. Error in this respect has not been demonstrated.

35 It was in this way that his Honour considered and rejected the contentions advanced by counsel for the appellant in the course of his final address before the trial Judge. Counsel had identified three respects in which it was contended, from the evidence of the respondent at trial, that there had been a failure to inform the appellant adequately or at all of risks which it was contended were material in the relevant sense and

(Page 22)

which needed to be explained adequately to the appellant's before his consent to the surgery could be "informed". For the reasons given, I am not persuaded the trial Judge fell into error (save in the one alternative respect identified) in his approach to these three contentions, or in the conclusions reached by his Honour that these submissions should be rejected.

Causation

36 There was a further basis on which this aspect of the appellant's case at trial failed. In his reasons the learned trial Judge also observed:

"Finally and in any event I am not satisfied that the evidence establishes that the plaintiff would have done anything different even if his testimony as to what the defendant said to him were to be accepted. As Gaudron J pointed out in Chappel v Hart (1998) 156 ALR 517 at 520; where a claim is based upon a duty to inform and a breach of that duty it is of course necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. (And see Hribar v Wells (1995) 64 SASR 129 at 140 per Bollen J; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560 per Kirby J). It is true that that is a matter to be determined objectively in the light of all the evidence but the plaintiff's own testimony in that regard will be significant.

In his closing address counsel for the plaintiff was only able to take me to one passage in the evidence where the plaintiff expressly asserted that he would have declined surgery. That passage occurs in cross-examination when it was put to him that he was told that there was a 60 per cent chance of the operation relieving his pain and he said:


'I would remember that for sure. Maybe I can forget a few simple things but not something like that and I certainly wouldn't have gone ahead with an operation knowing that.'

In examination-in-chief the plaintiff merely said:

'If Mr Hardcastle had suggested to me that the operation carried inherent risks including death from anaesthetic, nerve damage, the possibility I may need further operations or the possibility that my back pain may not be improved or

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may get worse then I would have given that some thought and would have attached some significance to that.'

It is pleaded in para 10A of the statement of claim that but for the defendant's negligence the plaintiff would have either:

'(a) declined surgery; or

(b) undergone surgery to the L3/4 level only with reasonable prospects of success; or

(c) if the L2/3 level of the spine was established to be symptomatic, undergone surgery to both the L2/3 and L3/4 levels with reasonable prospects of success.'


The plaintiff gave no evidence that he would have opted for surgery other than that performed by the plaintiff had he been informed of the risks particularised. In my view he was keen to have the operation and even if his evidence as to what the defendant had told him were to be accepted I consider it most unlikely that he would have elected for any course of action other than that which he pursued."

The submissions on appeal have not identified that his Honour overlooked any material part of the evidence relevant to this issue. The last sentence in the passage quoted is a conclusion which was open to his Honour to reach based on the limited passages there are in the evidence directly on this issue and as to the general circumstances which had led the appellant to seek assistance before the surgery from a number of specialist medical practitioners and which had led the appellant in the end to the respondent.

37 Counsel for the appellant sought to support his argument, effectively, on the basis that this finding is against the weight of the evidence. In the course of submission it appeared to me that counsel sought to attach undue significance to the 60 per cent chance of success and therefore to the likely course the appellant would follow had he been informed of that by the respondent (given the appellant's evidence that he had not been so informed) in the context that a 60 per cent chance of success involved a 40 per cent chance of failure. Why, it was advanced rhetorically, would the appellant wish to undergo complex and expensive surgery when there was a 40 per cent risk of failure? A short answer to that line of reasoning was identified earlier in these reasons. The evidence is not that there was

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a 40 per cent chance of failure but rather that the chances of the appellant's condition being worse after the surgery was 5 per cent or less.

38 In my view this question turned on a matter of fact as to which the trial Judge's impression of the appellant and the course and tenor of the appellant's evidence in relation to it were most material. In the absence of any demonstrated misunderstanding of the evidence or of any failure to have regard to relevant evidence it is not apparent that the finding reached by his Honour was not open to him.

39 This passage in his Honour's reasons commenced with a consideration of authority relevant to this issue. The submissions and grounds have not identified any error of law on the part of the trial Judge in this respect.

40 For these reasons no error on the part of the trial Judge has been demonstrated with regard to this matter which, in itself, would have disentitled the appellant to succeed in his claim for damages.

Amendment of statement of claim and grounds of appeal

41 On appeal, as has been indicated earlier, the appellant pursued only the issues of informed consent and the consequential issue whether, if duly warned, the appellant would have acted differently, ie grounds 1 and 2 of the grounds of appeal. The many other grounds of appeal were not pursued. With respect to these two grounds the focus of the argument for the appellant on appeal was the failure of the respondent to warn the appellant adequately of the three "risks" referred to in counsel's closing address at the trial and which have been identified and considered in these reasons, ie -

• the 60 per cent chance of success,

• the greater than 5 per cent chance of failure, and

• that the appellant was one of the most difficult group of surgical patients, ie those with adult degenerative scoliosis, in relation to which group the chances that the proposed surgery would fail were greater than for ordinary patients undergoing such surgery.

Of these three "risks" only the third finds any recognition in the particulars in the statement of claim. In par 10.4(f) the allegation was only that the defendant ought to have advised the plaintiff that 'the adult degenerative group are a most difficult group' before the surgery. Earlier

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in these reasons the relevant pleadings and particulars are set out. It was on the basis of these pleadings that the trial was conducted. While no application to amend the statement of claim was made during the trial, such an application has now been made on appeal. Leave is now sought to delete the existing par 10.4(f) of the statement of claim and to add new particulars as follows:

"10.4(f) The Defendant ought to have advised the Plaintiff that:

(i) There was a 60% chance that the surgery would succeed;

(ii) There was a greater than 5% chance that the Appellant's condition would become worse following surgery.


10.4(g) The Defendant ought to have advised the Plaintiff that he was a member of a "most difficult group" of surgical patients (ie adult degenerative scoliosis) in relation to whom the chances that the proposed surgery would fail were increased."

Leave is further sought to amend the grounds of appeal quite extensively so that the particular focus of the grounds would become the matters set out in the proposed new par 10.4(f) and 10.4(g) of the statement of claim. This ground would raise error by the trial Judge in failing to find that the respondent was negligent in "failing to warn" the appellant "adequately or at all of the percentage chances that the surgery … would:

(a) Succeed (ie 60%);

(b) Cause the Appellant's (Plaintiff's) condition to become worse (ie greater than 5%); and

(c) Of his membership of a "most difficult group" of surgical patients (ie adult degenerative scoliosis) in relation to whom the chances that the surgery would fail were increased."


Both applications to amend are opposed by the respondent. As has been indicated it was not the pleaded case of the appellant that he should have been informed, before he consented to the surgery, of the percentage chances of success or failure. Nor that there was only a 60 per cent of success, or that the chances of failure were greater than 5 per cent. Nor was it pleaded that he should have been warned that the chances of failure were greater because he was among a most difficult group of surgical patients (the present par 10.4(f) did not go so far).

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42 The failure in the statement of claim and even in the opening of the appellant's case, to raise the need for a specific warnings in percentage terms, or to raise 60 per cent and greater than 5 per cent respectively, and the limited way in which the statement of claim dealt with the third "material risk" may well explain why these three matters received the limited attention they did during the evidence of the appellant and the respondent and why the other evidence, especially the evidence of the four specialist surgeons, was not specifically directed to whether warnings in percentage terms would have been possible or reliable or appropriate in the case of the appellant, or were usual in such cases, and whether 60 per cent or greater than 5 per cent respectively were accurate in the case of the appellant.

43 While the appellant submits the case was fought on the basis of these three "material risks" that is not shown to be a fair statement of the position. As is evident from the very limited evidence on the subject the question of "materiality" was hardly adverted to with respect to those three "risks". Further, the failure of the appellant to take up any one of these three "risks" with any of his own expert witnesses and the failure of either counsel to raise these "risks" with any of the four expert witnesses appears to me to be compelling confirmation that, during the evidence, the appellant's case was not seen by either side to involve the need for specific percentage warnings, or warnings of these "risks" in the terms, or to the effect, now sought to be pleaded by these amendments on appeal. With respect to the third "risk", there was some consideration with the respondent in cross-examination whether the appellant was one of this special category of patients, although this was not pursued with other witnesses. As his Honour found, even this cross-examination of the respondent did not establish that this category was relevant to the prospects of successful surgery in the way now sought to be raised by amendment, neither was that pursued with the other witnesses.

44 On the pleadings at trial the evidence, such as it was, that the prospects of a successful outcome, ie an improvement in condition, were 60 per cent, or of failure, ie a worse condition, were 5 per cent or less, were relevant facts to the determination by the trial Judge whether the appellant had made good his pleaded case that the respondent was negligent in failing to obtain the appellant's consent by his failure to warn that, as pleaded in par 10.4,

• the appellant's low back symptoms could worsen,

• the fusion may not go into union, and

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• further operations may be necessary

and by his failure to advise the appellant that

• surgery within a multi-level degenerative spine carried a poor prognosis.

45 It is a materially different case, however, to seek to contend that, there were "material" risks, namely,

• the prospects of success were 60 per cent, and

• the risks of failure were greater than 5 per cent,

of which the appellant should have been warned and warned in percentage terms, before the consent of the appellant to the surgery could have been "informed" in the relevant sense.

46 In so far as the appellant's pleaded case at trial was that the respondent was negligent in failing to obtain the appellant's informed consent by his failure to advise the appellant that 'the adult degenerative scoliosis group are a most difficult group' before the surgery, it will be apparent that the amendments now proposed to the statement of claim and the grounds of appeal seek to expand this allegation in two material respects, ie that the group referred to was that of "surgical patients" and that by virtue of membership of this group the chances that the surgery would fail were increased.

47 The evidentiary foundation for this allegation was the post-operative report of the respondent to the appellant's general practitioner. While the fact of the report being given in those terms and its intended meaning were considered in the cross-examination of the respondent, and while some of this questioning raised, unsuccessfully in his Honour's finding, that this revealed that the respondent recognised that the appellant's prospects of a successful outcome were thereby less than some others, it can hardly be fairly concluded from this that it was the appellant's case at trial that the chances of the appellant's surgery would fail were increased by virtue of this matter. Once again the failure of the appellant's counsel at trial to raise this issue with his own or any expert witness is a compelling indication that this was not the case then being pursued for the appellant. The failure of the respondent's counsel to raise this issue with any expert witness is again a compelling indication that the respondent did not then appreciate that he was called on to meet a case, in the terms now proposed to be pleaded, at the trial.

48 Once again, in my view, his Honour has dealt with this third "risk" appropriately to the manner in which it was raised by the pleadings with

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which he was dealing. In this respect the proposed amended ground of appeal 2 would, for the first time, allege error by the trial Judge in failing to find whether the respondent had in fact been warned that he was a member of a most difficult group "in relation to whom the chances that the surgery would fail were increased". The failure to make any such specific finding is not presently a ground of appeal, and was not called for on the pleadings at trial. This serves to highlight, in my view, that a material shift in the appellant's case would be effected were the statement of claim and the grounds of appeal to be amended in the manner now proposed.

49 In his reasons the trial Judge dealt with these three "risks", in my view, in the context of the pleaded case of the appellant with which he was dealing. He did not seek to deal with the materially different case in respect of these three "risks" which the appellant now seeks to advance an appeal, by amending both the statement of claim and the grounds of appeal. In my view it would be unfair and it would constitute an injustice to the respondent for leave now to be granted to amend the statement of claim and the grounds of appeal in the manner proposed. To amend in the way proposed would expose the respondent to a case he was not called on to defend at trial. I would refuse both applications to amend.

50 I would note, however, for the reasons given earlier, that were these amendments to be allowed it is not apparent that the outcome of the appeal would be any different. The case the appellant would seek to advance in respect of these three "risks" has not been made out in any event for reasons sufficiently canvassed in these reasons.

51 I would dismiss the appeal.