Cattanach & Anor v Melchior

[2002] HCATrans 89

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 2001

B e t w e e n -

STEPHEN ALFRED CATTANACH and THE STATE OF QUEENSLAND

Applicants

and

KERRY ANNE MELCHIOR and CRAIG MELCHIOR

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 2.50 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  If the Court pleases, I appear with my learned friend, MR C. NEWTON, for the applicants.  (instructed by Deacons)

MR D.O.J. NORTH, SC:  May it please the Court, I appear on behalf of the respondents.  (instructed by Shine Roche McGowan)

GAUDRON J:   Yes, thank you.  At this stage, Mr Jackson, we would need only to hear you on the question of liability but would reserve your full right of reply, of course.

MR JACKSON:   Your Honours, the contention which we advance is the trial judge and the Court of Appeal applied too high a standard of care.  This was a case where a 40‑year‑old lady, who already had two children, told the doctor that she was 15 when she had had an operation which had removed her right ovary and fallopian tube.  She told him, as your Honours will see at page 8, paragraph [24], in the primary judge’s reasons, with apparent confidence and certainty ‑ ‑ ‑

KIRBY J:   What page was that, Mr Jackson?

MR JACKSON:   Page 8, your Honour, paragraph [24].  When the operation was carried out, there was no sign of a right ovary or right fallopian tube – your Honours will see that page 3, paragraph [7],  Your Honours, these aspects are discussed in many places.  I am simply getting to the heart of them, if I may.  There was no negligence, your Honours, in respect of any aspect of the operation and it was not until the caesarean birth of the child that the presence of the right tube was seen – your Honours, that is page 3, paragraph [9].  Your Honours will see it discussed through ‑ ‑ ‑

KIRBY J:   This is very much a factual – I realise that that does not mean we would not look at it, but it does not seem to have the elements of some important issue or principle.

MR JACKSON:   Your Honour, it does, in this respect, that what it does raise is a question of the entitlement of a medical practitioner to rely upon the information that is given to him and then to act when an operation is carried out indicating consistency with the history that has been given to him to act on that basis.

GAUDRON J:   There is no doubt that there was a duty of care ‑ ‑ ‑

MR JACKSON:   No doubt, your Honour.

GAUDRON J:   ‑ ‑ ‑ to competently perform a sterilisation procedure of the type in issue.  All that really is in issue, therefore, is breach.  I think we have said many times, we do not really give special leave to appeal just to determine questions of breach.

MR JACKSON:   No, your Honour, but there was found to be no breach in relation to the carrying out of the operation.  Your Honour, that is the next thing I am going to say.

GAUDRON J:   Well, that seems a little odd.  It may be not in relation to the operation but, certainly, what was not performed was a total sterilisation procedure.

MR JACKSON:   Your Honours will see on page 4 in paragraph [13] and going over to the top of page 5, all the particulars of negligence that are relied on are there set out.  All the aspects of those particulars that applied to the carrying out of the operation were ones found in favour of the doctor and what he did was carry – except for (a) and may I come to (a) in just a moment.  So that the judge’s finding was that the operation was carried out and one has to bear in mind that the doctor’s obligation, prima facie, was to use reasonable care and skill, and that was found in his favour.

GAUDRON J:   Yes, but doing the job.  I mean, at the very least, if the contract was to perform a total sterilisation procedure – I know it is all framed in negligence, but let us assume for the moment that the contract, which there was, was to perform a total sterilisation – and certainly one does not ordinarily ask for a partial sterilisation – it was not performed.

MR JACKSON:   Well, your Honour, that is so, but that depends, of course, if one were to treat the case as one of contract, on importing a term that the obligation in performing a contract was to do a particular thing as distinct from using reasonable care and skill appropriate to a specialist to do it.

GAUDRON J:   I am always amazed that these cases turn up as negligence cases when contract is so much more apt in many respects.

MR JACKSON:   This is a public hospital case, your Honour.

GAUDRON J:   Of course, yes.

MR JACKSON:   Your Honours, what I was going to say was if one looks at page 4 and 5 and sees the particulars, all the particulars except for (a) were found in our favour, and (a), although it appears to be looking to the future before the operation, was treated as applying to a failure to tell her after the operation that although there had been nothing to suggest that the

right fallopian tube was present, its absence had not been positively confirmed.  Your Honours will see that at page 11, paragraph [33], and that was the negligence found and there was failure to tell her that there was a procedure which could be adopted.

Your Honours, we would seek to say simply, that surely a doctor is entitled to rely on a plaintiff’s history, given with no hint of error or falsity, when it is consistent with the operative findings, and this is one area where it is for the court to assess the standard in the light of all the evidence, not simply to take one doctor and say, “Because one doctor says that, that is enough”.  Your Honours, that is our submission.

GAUDRON J:   Before you take a seat, Mr Jackson, do you offer undertakings in the event that special leave were granted on the question of damages?

MR JACKSON:   On the question of costs, your Honour, or ‑ ‑ ‑

GAUDRON J:   Costs, yes, undertakings with respect to costs if leave were granted on damages.

MR JACKSON:   Yes, I have those instructions, your Honour.

GAUDRON J:   Yes, thank you.  Yes, thank you, Mr North.

KIRBY J:   This is the point that nearly came to the Court in CES, is it not?

MR NORTH:   Yes, your Honour.

KIRBY J:   At which I had the pleasure of sitting in in another place and it was settled and, therefore, was not resolved.  It is clearly an important question.  It is before the courts of many countries.

MR NORTH:   Yes, I cannot cavil with that, your Honour.

KIRBY J:   Why, having granted special leave in CES, would we not grant special leave now, the matter being clearly presented and neatly presented and suitable for determination by the Court one way or the other?

MR NORTH:   The best argument I can mount, your Honour, is that the decisions below are correct.  That is sometimes satisfactory, not always ‑ ‑ ‑

KIRBY J:   The Court of Appeal divided three ways in CES.  I remember it vividly.

MR NORTH:   CES – and I do not want to delay by debating the CES, distinguishing it, but that involved the rather contentious issue of the arguably illegal termination and whether damages could flow in those circumstances.

KIRBY J:   I think that was the ratio of Justice Meagher’s decision, was it not ‑ ‑ ‑

MR NORTH:   That was certainly the ratio of Justice Meagher’s, but it seemed, in my submission, to rather influence the approach that – I think it was Justice Priestley adopted.

KIRBY J:   Maybe that is something we can debate on another day.

MR NORTH:   Certainly.  The best argument is that the decision is correct.  It is sometimes ‑ ‑ ‑

KIRBY J:   If it is correct, it will be upheld as correct and you have your costs protection.  The issue is important, not just for your client, but for others, and it has to be determined one day or another and this is a suitable case.

MR NORTH:   I cannot say anything further, your Honour.

GAUDRON J:   Very well.  I do not think I need to hear you further, do I?

MR JACKSON:   Nothing further I want to say, your Honour.

GAUDRON J:   No.  Well, upon the applicants undertaking to bear the costs of the appeal to this Court, in any event, and not to disturb the costs orders below, there will be a grant of special leave but it will be limited to the question of damages for raising and maintaining the child.

The Court will now adjourn until 10.15 am on Tuesday, 9 April in Canberra.

AT 3.00 PM THE MATTER WAS CONCLUDED