Chappel v Hart

[1998] HCA 55

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

CLIVE A CHAPPEL  APPELLANT

AND

BERYL JEAN HART  RESPONDENT

Chappel v Hart (S88/1997) [1998] HCA 55
2 September 1998

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D J Higgs SC with N Perram for the appellant (instructed by Tress Cocks
& Maddox)

P M Donohoe QC with D H Hirsch for the respondent (instructed by MacMahon Drake Balding)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Chappel v Hart

Negligence – Causation – Failure to warn of inherent risk of operation about which patient had specifically inquired – Plaintiff would have inevitably required the same operation at some time in the future but would have postponed the operation performed if properly warned – Surgery was performed with due skill and care but risk materialised – Whether there was a causal connection between failure to warn and plaintiff's physical injury – Whether damage suffered was physical injury or loss of chance.

Negligence – Damages – Whether damages should be discounted to account for possible future events.

Medicine – Medical practitioners – Failure to warn of inherent risk of operation about which patient had specifically inquired.

1. GAUDRON J.   The facts may be simply stated.  Mrs Hart underwent surgery at the hands of Dr Chappel without warning as to the possible consequences should her oesophagus be perforated and infection set in.  That is what happened and, in consequence, Mrs Hart suffered damage to her laryngeal nerves, paralysis of her right vocal cord and voice loss.

2. The condition for which Dr Chappel operated on Mrs Hart is one which is relentlessly progressive.  Thus, Mrs Hart would inevitably have required surgery of the kind performed.  And the surgery would have been subject to the risk which eventuated - although not necessarily in the same degree - no matter when or by whom it was undertaken.  Had Mrs Hart been aware of that risk, she would not have had surgery when she did.  And she would have taken steps to have it performed by "the most experienced [surgeon] with a record and a reputation in the field."

3. Mrs Hart commenced proceedings against Dr Chappel in the Supreme Court of New South Wales, claiming damages for the injuries which she sustained.  She recovered a verdict in the sum of $172,500.61.  Included in the verdict was an amount of $30,000 for general damages.  Dr Chappel appealed to the Court of Appeal of the Supreme Court of New South Wales and Mrs Hart cross-appealed, complaining that the amount awarded for general damages was inadequate.  Both the appeal and cross-appeal were dismissed.  Dr Chappel now appeals to this Court.

4. The primary contention made on behalf of Dr Chappel is that there was no causal connection between his failure to give adequate warning of the risks involved in the surgery and the damage suffered by Mrs…