Chappel v Hart

[1997] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S88 of 1997

B e t w e e n -

CLIVE A. CHAPPEL

Appellant

and

BERYL JEAN HART

Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 NOVEMBER 1997, AT 10.20 AM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC:   May it please the Court, I appear with my learned friend, MR N. PERRAM, for the appellant.  (instructed by Tress Cocks & Maddox)

MR P.M. DONOHOE, QC:   May it please the Court, I appear with my learned friend, MR D.H. HIRSCH, for the respondent.  (instructed by MacMahon Drake Balding)

GAUDRON J:   Mr Higgs.

MR HIGGS:   Your Honours, the scope of the appeal is narrow.  Our submission is that the respondent was not entitled to any of the damages claimed or proved upon the basis that the damages that she claimed and that she would be entitled to, if any, must arise from the opportunity to minimise the risk by deferring the operation that she underwent at the hands of Dr Chappel on 10 June 1983.

That was the approach of Mr Justice Handley, with whom the other members of the Court of Appeal concurred, with respect to the findings of fact that were made by his Honour at volume 2, 329, lines 10 to 45 of the appeal book, where his Honour referred to the evidence of Professor - or Dr Benjamin, and concluded that the opportunity to Mrs Hart was not to minimise the risk of the operation that she eventually underwent, could have been minimised if she had have gone off to Dr Benjamin, who, according to his Honour’s reasons, by reference to the evidence that I will take your Honours to in a moment, he said disposed this, that, starting at line 30:

Professor Benjamin had carried out some 150 procedures of this kind without a single perforation, although the general incidence of this complication in his unit was between 1 in 20 and 1 in 40.  The defendant had carried out 6 of these procedures personally and had assisted -

KIRBY J:   Six.  He had carried out six of these procedures.

MR HIGGS:   I am sorry.

and had assisted at 6 more.

Your Honours, that ‑ ‑ ‑

KIRBY J:   Was there any evidence as to how many of these procedures were conducted in New South Wales, in a relevant - I mean, Professor Benjamin could not do them all.

MR HIGGS:   No, no, there was no evidence of that type, your Honour. The evidence from Professor Benjamin was that he had done ‑ ‑ ‑

KIRBY J:   It is like saying that we should only have Sir Maurice Byers before us every day.

MR HIGGS:   Precisely. 

KIRBY J:   Agreeable though that would be.

MR HIGGS:   I am sure it would.  Your Honours, that was an incorrect interpretation of the evidence.  The evidence was that of the 100 to 150 procedures that Professor Benjamin had carried out of this type he had never encountered the risk of mediastinitis leading to the type of injury that was sustained by the plaintiff.  It was not evidence that of the 100 to 150 procedures that had been carried out that he had never been responsible for a perforation. 

In relation to the other evidence referred to in this passage, we would submit, with respect, that the approach taken by Mr Justice Handley was correct, and I am talking about the evidence from Professor Benjamin as to the statistics in his unit, where perforations occurred when this type of operation was carried out.  What Mr Justice Handley did, as did the trial judge, Acting Justice Donovan, he treated that evidence as being evidence that perforation of the wall of the oesophagus in this type of procedure was a well-recognised complication but it did not go any further than that.

That was the interpretation of that evidence that Mr Justice Handley had made reference to at 323 of the appeal book from lines 10 to 25.

The pouch in the plaintiff’s oesophagus collected small scraps of food causing infection and inflammation.  The condition is relentlessly progressive and surgery provides the only cure.  The procedure involves the removal of the open wall of the pouch by its excision from the wall of the oesophagus.  Perforation of the wall of the oesophagus was a well recognised complication of this procedure.  Professor Benjamin, a pre‑eminent specialist in throat surgery, said that a study undertaken in his unit had shown that this complication occurred once in 20 to 40 procedures.  In the great majority of cases, the complication causes no lasting ill effects.

Mr Justice Donovan at 271 of the appeal book ‑ ‑ ‑

KIRBY J:   Can I just ask:  there seem to be innocent perforations and sinister perforations.  Is there any evidence about the incidence of sinister perforations causing the - what was the incidence of this sort of disability that the respondent suffered?

MR HIGGS:   The incident of the type of problem that the respondent suffered was a theoretically possible risk that was unknown to have occurred.

KIRBY J:   Ever?

MR HIGGS:   Ever, in the textbooks.  The problem that beset the respondent occurred in three steps.  There was always, with this type of procedure, the risk of perforation when the Dohlman procedure was carried out that involved an endoscope or a scope being inserted into the patient’s throat.  There was always the risk of perforation of the oesophagus occurring.

The second step is that if perforation did occur, and there was the random chance of a particular bug being present, then it could escape from the oesophagus into the mediastinum, which is the chest cavity near the oesophagus.

The third step that occurred here was the infection was so virulent as to cause the right laryngeal nerve that innovates the right vocal chord to be compromised permanently and evidence was led that that was something of which people in Dr Chappel’s position ought to have known of, even though it was not in the textbooks, even though, particularly in the circumstances of the inquiry that was made of him by the respondent when she said that she did not want to end up with a voice like Neville Wran. 

Normally, when there is a perforation, what does occur is that nothing sinister flows therefrom.  The way in which patients of this type are normally managed is that they will have no food for a significant period of time after the operation so as to minimise the risk of infection and, particularly, the risk of infection spreading into the mediastinum in this way.

Mr Justice Donovan, at page 271 of the appeal book at lines 25 to 40, also made reference to the evidence of Professor Benjamin when he said that he had carried out between 100 and 150 procedures and there had never been the problem of mediastinitis.  Professor Benjamin says that:

the incidence of perforation is more common than most doctors acknowledge, possibly one in twenty, one in forty, but it only causes minor injury.  Second is the risk of mediastinitis.  This risk is less.  The dangers are greater.  But even here the likelihood is that the problems would clear up.

And then:

Professor Benjamin said in relation to mediastinitis -

and this is the specific evidence that we submit that Justice Handley misconceived the meaning of.  He said:

“I believe, not having counted it, that I have performed between one hundred and one hundred and fifty operations and have not had a patient with that complication.

And in the context of the questions that were asked, the complication being referred to there was undoubtedly mediastinitis.

KIRBY J:   That is no big boast if the facts that you have recounted are correct, that this is not mentioned in the textbooks.  Professor Benjamin’s experience was not remarkable if this is so rare that it is not mentioned in the texts.

MR HIGGS:   No, that is right.  We accept that. 

Nevertheless, I think that every practising ear, nose and throat surgeon, whether he does this operation or not, is aware of the possibility of perforation and mediastinitis that may follow the operation.”

This evidence is also referred to by Acting Justice Donovan at 279, line 10 and following where, in our submission, what occurred was that in relation to the question of causation, his Honour erred in reversing the onus of proof in relation to causation but nonetheless, at the end of the day, made a finding that there was no evidence that, by deferring the operation, the risk of this problem befalling the respondent would be any less.

At line 15, his Honour referred to the argument that was advanced at the trial:

Mr Higgs says all the plaintiff has lost is the chance to diminish the risk of an unknown but, in theory, possible risk of damage to the laryngeal nerve.  That, he says, should not be regarded as a lost opportunity at all for the following reasons -

and then there are various arguments that are summarised that were advanced at the trial.  Then, over the page at 280, picking up his Honour’s reasons at line 35, his Honour said:

Theoretically I can see the attraction of Mr Higgs’ argument that the risk would have been the same and the injury would have happened anyway.  In order to support the defendant’s proposition I would have to make that finding on evidence.  There is no evidence that the risk in the sense of its being likely to occur as it did would be the same and the injury would have happened anyway.  I think that such a finding would be speculation and I do not make it.

Just pausing there, what his Honour does say, we say with respect, he gets the onus wrong and I will develop that later on because there is a reference towards the end of the majority judgment in Bennett’s Case about the possibility of this type of problem being approached by reversing the onus of proof.  But, even so, what his Honour does not say, he does not say that the risk was not the same.  He does not say that the risk was different.  He just says that there was no evidence at all and in those circumstances that is the way in which, we would submit, he treated this evidence in the way that it was given during the course of the trial.

The evidence where Professor Benjamin refers to the one in twenty, one in thirty, one in forty risk at his unit was nothing other than a general reference to the range of incidence when this complication of perforation can occur.  It did not go so far, and it is incapable, we submit, of supporting what we understand to be the respondent’s contention that had the operation been deferred and had this lady gone to Professor Benjamin to have the operation carried out, that she would have had a significantly better chance of avoiding perforation.

And going on, his Honour then does develop his reasons and he says that, in effect from 280 to 281 line 35, that because the risk of perforation was such a rare event that had there simply been an operation carried out at a different point in time in exactly the same circumstances otherwise, the same surgeon, the same technique, the same everything else, the fact of the matter is that by virtue of the statistics that I have just referred to of it being an unknown but theoretically possible complication, that it is highly unlikely that this particular injury would have befallen the respondent and hence, because of the temporal connection, and it alone, causation was proved.  His Honour goes on to say:

Further, as I see Mr Higgs’ own argument, if the plaintiff had had the operation at a different time, the chances of the complication involving damage to her laryngeal nerve were still remote.  I would conclude from this fact that had she had the procedure at another time, the probabilities strongly pointed to her not having the complication.  Analysed this way Mr Higgs’ argument seems to lead to a conclusion the very opposite of that he propounded.  This conclusion could in other circumstances raise other difficulties concerning causation where a failure to warn is not sufficiently causally connected to the consequent injury but in my view that does not occur here.

KIRBY J:   But how far can this be taken, given that you might have a heart attack in the operation theatre, or you might die under anaesthetic, and all sorts of temporal possibilities, as distinct from possibilities connected with the skill of the surgeon?

MR HIGGS:   Well, that is our point, your Honour.  We say that if all that can be said about us is, given the scope of the duty that we owe the respondent, if all that can be said - the scope of the duty is that we arm her with knowledge to enable her to make a decision as to whether or not she will undertake the risk and that is as far, from a causal point of view, as our duty goes.  One can well understand in cases - - -

GUMMOW J:   But was that duty discharged?

MR HIGGS:   No.

GUMMOW J:   Okay.  Well, this woman ended up with this unfortunate condition; why was that not caused by your failure?

MR HIGGS:   Because her evidence was that she would have undertaken the operation, in all likelihood, at a later point in time and taken on the risk.  Indeed, she did undertake an operation - - -

GUMMOW J:   I know that, but why is that an answer?

GAUDRON J:   There is the time period in between in which she would not have had this condition, at the very least.

MR HIGGS:   There would have been a time period but, also, over that period of time she would have continued to have suffered the problems - the severe problems that she was suffering at the time because of the condition to do with the pharyngeal pouch and she would have, in all likelihood, later on faced the risk and she would have, being armed with all of the knowledge that a proper discharge of the duty would have entailed.

GUMMOW J:   Okay.  Well, assume she had taken the risk, would it not have been more probable than not that the risk would have worked in such a way that she was not injured?

MR HIGGS:   But only because of the temporal connection, not because of anything that we have done in the advice that we have given.  What your Honours would need to do in order for that approach to be sustained, we submit, is to make the value judgment that there is a sufficient nexus between the breach of duty, of which we are guilty and which we concede, and the risk that befell her.  Our duty of care, the duty of care that we owe her cannot, on the evidence, tell her anything other than, “You have the risk. You can avoid it by declining to undergo the operation.”  The duty of care that we had to discharge to the respondent could never go so far as to tell her when was the best time for her to undertake this procedure.

GAUDRON J:   One of the difficulties I see in your argument is that I fail to understand why there was a duty of care, if, on your argument, there is always this risk.  Your argument would lead to the conclusion, surely, that there is never a duty of care to warn of risks if the risk is going to occur in any operation.

MR HIGGS:   No, your Honour.  The evidence before the trial judge was, from Professor Benjamin himself, that even though the risk was one that was not reported in the textbooks and it was unknown to have occurred, nonetheless, it was know to be theoretically possible, and for anyone who carried out this type of procedure it was one that a surgeon ought to have been aware.  The other line of reasoning that was relied upon in that regard was this:  say, for example, someone like Caruso walks into a doctor’s surgery and says, “Because of my job I really want to know what the outcome is.  I don’t want to end up with a Neville Wran voice; will you tell me as to whether or not there is any possibility of that?” 

In those circumstances his Honour found that within the second limb of what is a material risk in Rogers v Whitaker, not being something that you can adjudge is a material risk, unadorned with any knowledge of the particular interest in this topic that the patient had, that nonetheless, by virtue of the fact of the inquiry and in the extreme example that I posed, because of the occupation that he pursued, given the state of knowledge with which people of this speciality were armed, even though it had not occurred, the proper course would have been to warn of the possibility of that type of injury befalling him.  In this case, one of the facts relied upon by his Honour was that he knew that she was ‑ ‑ ‑

GAUDRON J:   Why the duty to warn?

MR HIGGS:   Because it was a risk that given the ‑ ‑ ‑

GAUDRON J:   So that people can make a decision, surely.

MR HIGGS:   Yes.

KIRBY J:   Even though the incidence of the risk was so small that it was not written up in the textbooks.

MR HIGGS:   Yes, because Professor Benjamin gave evidence that it was the type of risk that, nonetheless, was foreseeable and it is one that should have been warned of in the face of a specific inquiry of that type.  There are two ways that the courts have approached it.  There is the approach that I would suggest, with respect, that was referred to by your Honour Justice Gummow just a little while ago:  why in the world are we not liable simply because of the temporal connection.  That is overstating it, but nonetheless that is an approach and it is an approach to be found in the judgment of Justice Mahoney.

The approach that was taken by Justice Handley and the trial judge seems to have been, I know it was an approach that was undertaken differently because of the different onus of proof that Justice Donovan perceived applied, was that here, on the evidence, had she gone off to Professor Benjamin rather than it being mere speculation, to pick up the words of the majority judgment in Sellars v Poseidon, there was some loss of a chance of value that was not negligible that she lost, the lost chance being the better skill of Professor Benjamin in performing this type of procedure that Justice Handley says showed that he, instead of being at the one in twenty end of the spectrum of perforations occurring,            he was, at the other end of the spectrum, being one in forty.

Now, what I would like to do firstly is to - and that seems to be the argument of the respondent as we perceive it in these proceedings, that on that point and that point alone, even though perhaps Justice Handley misinterpreted the evidence that he specifically referred to when he referred to the complications of mediastinitis, nonetheless when you look at the evidence in relation to risk of perforation, there was no misunderstanding of the evidence and that there was a material increase in the chance of the perforation being avoided and hence, the damage that arose was the lost chance of diminishing the risks of the procedure.  There are a number of answers to that.  The evidence from ‑ ‑ ‑

HAYNE J:   Before you come to the evidence, do you say that the giving of a warning to this patient would have had any effect on her behaviour?

MR HIGGS:   Yes, it would have.

MR HIGGS:   Yes, it would have.

HAYNE J:   What effect would it have had?

MR HIGGS:   She would have deferred the operation, and she would have deferred it in the more likelihood to no later than June 1985, for reasons that I will develop in a little while, because that was the time when she, in fact, did undergo a procedure of this type which, although slightly different, carried the same risk of perforation as did the operation that was carried out by Dr Chappel.

GUMMOW J:   Now, is there a finding to that effect?

MR HIGGS:   No, there was not a finding to that effect.

GUMMOW J:   Or could not find one?

MR HIGGS:   No.

GUMMOW J:   Well, is it agreed that that is so?

MR HIGGS:   No, it is not agreed, but the evidence, in our submission, is uncontroversial and I can take your Honours to the evidence fairly quickly.

GAUDRON J:   Yes, but what you might do when you have already suffered the damage of which complaint is made is quite different from what you might do if you have not already suffered it.

MR HIGGS:   But, your Honour, what happened was that in 1985, in February of that year, the very type of complication that can arise because of the problem that she had occurred, there was a grape that stuck in her throat that needed to be surgically removed.  At page 34 of the appeal book, volume 1, lines 21 to 35, she gave evidence as to what occurred as between her and Professor Benjamin.  He told her:

“Well, you know all about the risks of this procedure”.  He said, “Now, I will tell you the risks about not having it”.

Q.  What did he say about that?
A.  He knew I had the grape removed from my throat. He said, “That could happen to you again and you will find that you perhaps should not be driving away from cities because you might need another emergency of that kind which could arise”.  He said, “You will find yourself reducing your diet to suit your present circumstances and gradually your quality of life is going to deteriorate so that is your option”.

At page 34, again, at the top of the page, she gave this evidence:

Q:  The problem you were having with swallowing in the early part of 1985, was that worse than it had been prior to the time you went to see Dr Chappel?
A.  It was constant.  It could have been I realised why I was feeling this and that was adding to the difficulties of my voice.

So, there is no evidence and no suggestion that the procedure that Dr Chappel carried out, in any way, aggravated the serious problems that she was having with swallowing before she undertook the operation.  It certainly aggravated her general condition because it diminished her power of speech but the problem with swallowing was constant.

GAUDRON J:   Does that mean that the operation did not have its intended physical effect in any event?

MR HIGGS:   The operation did - well, it might be interpreted that way.  I think that there is other evidence - there is no finding about this that might be - that, to some extent, the operation alleviated the problem that she had with food catching in her throat.  It was common ground that the purpose of the operation was to try and alleviate the problem by dissecting a flap of skin within the oesophagus that formed the pouch, so as to allow the food to go through, and that it sometimes can require a second procedure being undertaken because, during the course of the first procedure, to be on the safe side, you cut away too little as opposed to too much.

At page 48 of the transcript, line 30 to about 37, she gave evidence about the problems that she was having in April 1983, prior to the operation that Dr Chappel carried out.  It was a condition that was very stressful, it was making her fatigued in her work, but she was able to go on, even though it was stressful.  So, it was not an insignificant problem that she was having at that time, and it is one that constantly plagued her until 1985, when she underwent the operation that was carried out by Professor Benjamin.

At page 53, lines 25 to 35, or thereabouts, she gave evidence to the effect that when she underwent the procedure at the hands of Professor Benjamin, she was aware of the risk of her laryngeal nerve being compromised, no better warning than the problem that befell her, and she knew that she only had one good laryngeal nerve left, and yet she was prepared then to undertake that risk and undergo the procedure that Professor Benjamin recommended in the circumstances that I referred your Honours to earlier on.

At page 54 of the appeal book, from lines 45 to 55, line 10 it is plain that not only did she speak to Professor Benjamin about it, but she also had spoken to another doctor, Dr Ross, and that she was aware that her one remaining good laryngeal nerve was at risk because of this operation.  The finding that his Honour Mr Justice Donovan found in relation to the condition was that it was relentlessly progressive, and the evidence of that is from Professor Benjamin at page 120, lines 10 to 20, where Professor Benjamin gave evidence that the symptoms of pharyngeal pouch:

are relentlessly progressive.  The only relief is surgery -

there is no medication, and the problem can only get worse.  In those circumstances, that evidence, in our respectful submission, being one that seems to be uncontroversial, that it must be that, in all likelihood, the operation that she - that the deferred operation was one that would have been deferred to a point in time no later than when the operation was, in fact, carried out in June 1985 by Professor Benjamin.

GUMMOW J:   I do not quite understand this.  I am probably being slow witted, but assume she had deferred the operation and assume that it had then gone ahead, what are the probabilities as to what then would have happened?

MR HIGGS:   The probabilities are that it would not have happened.

GUMMOW J:   She would have had a successful operation.

MR HIGGS:   Yes.

McHUGH J:   That is what I wanted to ask you about earlier, as to exactly what was the duty to warn in this case.  Was it a duty that there could be a perforation whether the operation was performed with a rigid open tube endoscope or a flexible endoscope?  Was that the duty or was it a duty to warn both that that could occur and that there was always a chance that by reason of bacteria, mediastinitis could ensue?  What was the actual risk and what should she have been told about that?  There was a two-stage process?

MR HIGGS:   In light of the inquiry, the specific inquiry, that his Honour found was made, that she did not want to end up with a “Neville Wran voice”, and the process by which that being possible being in the manner of a three-step way that I described earlier, the duty was to warn her that although rare, if known at all, nonetheless, it was possible.

McHUGH J:   What was possible?

MR HIGGS:   The risk of her ending up with a “Neville Wran voice”.

McHUGH J:   The reason I asked the question is that it seems to me, at the moment, it may throw some light on the whole question of causal connection, because it may well be an obviously known complication of this operation that there can be a perforation irrespective of the kind of endoscope that is used.  But what is the risk of the perforation occurring and is it conditioned upon the ability of the surgeon?

MR HIGGS:   No.  Sorry, let me recant on that.  The evidence that his Honour Justice Handley relied upon was the evidence that I referred your Honours to, and it is to be found at page 120 of the appeal book, line 40, and over the page to 121, line 10.  It is that part of the evidence that I referred your Honours to that to some extent was extracted - or to be found in Justice Donovan’s judgment:

Q.   Can you give us, likewise, a statistic of this complication arising that does lead to mediastinitis?

The questions are all about mediastinitis.

You say it is very rare.  Are you able to translate that in similar terms to the way that you have expressed yourself apropos the statistic of one in twenty to forty, or not?

That is to do with perforation.  The answer was:

A.   Could I give my own experience?

Q.  Yes?

And then he says what was extracted - the part that I read out in the trial judge’s judgment, about having done the 100 to 150 operations never occurred.  If your Honours then go back to page 118 of the appeal book, lines 35 to 45, that, we would submit, and as we understand it, is the evidence that the respondents latch on to as discharging the onus of proof that there was a loss that Mrs Hart suffered, because she could have gone off to a better surgeon.

GAUDRON J:   That is there in that answer, is it not?  The risk depends on the experience and care with which the surgery is done.

MR HIGGS:   Your Honours, our answer to that is this:  firstly, that evidence was only evidence of general statistics that were gleaned by Professor Benjamin from his unit as between people that performed this type of operation, at another explained level of experience, and it ‑ ‑ ‑

GAUDRON J:   Perhaps I can interrupt you there, Mr Higgs, because it is 11 o’clock on 11 November, and we ask that everybody now join us in observing one minute’s silence in honour of all those who have been killed, injured or otherwise harmed by war.

Yes, thank you, Mr Higgs.  Thank you, ladies and gentlemen.  You were answering my question about the evidence as to experience and care.

MR HIGGS:   That was an answer that was treated by the trial judge, at that passage that I referred your Honours to earlier on, as going to one issue and one issue only.  That is that the risk of perforation was not uncommon.  It was more common than, perhaps, most surgeons realised and what the answer does not do, so as to elevate it from that type of evidence to being evidence to show that Professor Benjamin would have given this lady a better chance of a successful outcome than Dr Chappel, was that there is no explanation in this answer or any other evidence as to the level of experience that you have to have in order to be in the one in twenty category as opposed to the one in forty category.  It is simply a matter of speculation as to whether or not ‑ ‑ ‑

GAUDRON J:   That brings you right back now to Justice McHugh’s earlier question.  What was the warning that was required?

MR HIGGS:   Your Honour, the warning that was required and found to be required, that in light of the specific inquiry that was made by this lady, that she should be told of the possible risk of her ending up with a Neville Wran voice.

GAUDRON J:   And of how it could be minimised?

MR HIGGS:   You see, there is no evidence that, on the facts of this case, as between the operation that was carried out by Dr Chappel and the one that she could have gone off and sought from someone, she says, that was more experienced would have given, would have in any relevant way minimised the risk of this type of injury befalling her.

McHUGH J:   Yes, but it seems to me that the problem that you have to face up to is this.  It can be accepted that by reason of the presence of bacteria in the throat there was always a chance that mediastinitis could occur if there was a perforation of the oesophagus.  But the question is, can experience reduce the risk of perforation and, if it can, then it seems to me your argument is in serious trouble.

MR HIGGS:   Well, your Honour, to answer the question, or that which is implicit, as we understand it, and in an attempt to be helpful even though the answer might be unhelpful to me, that evidence was not challenged or cross‑examined upon.  It is the only evidence that bears on the question that your Honour asks and the result must be that there can be a different rate of perforation depending upon experience and the care, and there is no reference in the evidence as to the extent to which care has a part in that or experience, but given the robust and pragmatic way that the cases say that one should approach this type of problem when looking - - -

GUMMOW J:   What does that mean?  It just disguises the need for intellectual analysis?  “Robust”, what does that mean?  We are not talking about physical exercise, we are talking about mental activity.

MR HIGGS:   It is a little bit like the help that we get from the common sense approach with respect to causation, I suppose.

GUMMOW J:   Yes, quite.

McHUGH J:   Yes, well, I must say your argument gets its force only because the court has rejected the “but for” test.  If the “but for” test was applicable, your argument would be dead in the water.

MR HIGGS:   I know, there is no doubt about that and your Honour, the “but for” test that your Honour so well propounded in I think it was March v Stramere, works.  But as I understand it, and I no doubt will be corrected if I am wrong, there, nonetheless at the end of the day, needs to be a value judgment made that one step in the robust and pragmatic, or intellectual process that one needs to exercise, in determining whether or not there is a question by reference to notions of a value judgment being made - - -

GUMMOW J:   Yes, I know, but what are the values in the judgment?  You do not get anywhere by saying “value of judgment”, that just masks the problem again.  I for one, am not going to repeat these formulae.

MR HIGGS:   No, all right.  Well, your Honour, to go back to the question, as I understand it, your Honour shifted - if the value judgment that needed to be made and needs to be better explained - from under the heading of causation to remoteness, and that is the reason why we put that in the alternative.

But, your Honours, in answer to your Honour Justice Gummow’s question, in our submission, the way in which it should be approached is in this way, that the whole basis of liability being sheeted home to a defendant who is guilty of tort or a breach of contract is culpability, and if the damage that is suffered by the plaintiff - - -

GUMMOW J:   Well, in a contract it comes back then to what the promise was.

MR HIGGS:   The promise here is to exercise reasonable care and skill, so it is the same thing.

McHUGH J:   Well, is it?  I am not sure, because I think different results might flow from it.  Under contract, you have to concede there was at least a nominal breach of duty and, therefore, the cause of action was complete, even if the plaintiff was only entitled to nominal damages.  So, the real question is whether the damage then was reasonably foreseeable, is it not, that flowed from that breach?  I suppose it is still a causation issue, you say.

MR HIGGS:   It is a causation issue.  And to come back to the question that your Honour posed, as we understand it, that your Honour is suggesting, perhaps, that we should have warned that this lady could have gone off to a more experienced surgeon to avoid, or to minimise this risk of perforation that is one of the three steps that led to her injury.  As we understand that would - - -

McHUGH J:   Yes, but, you see, your argument has tended to concentrate on the risk being another Neville Wran voice.  But perhaps the duty was more complex than that; that she should have been told the stages, that there was a risk of perforation, and that it had these various complications, including one of them being mediastinitis.  Now, if she had been told that, she may have gone to a better surgeon and the perforation may not have taken place.

MR HIGGS:   But, your Honour, the evidence that the respondent relies upon here to prove that there was a surgeon that could have, outside the realms of speculation, given her a better chance that was of some value that was not negligible, the high point of the evidence available for the respondent to latch on in that regard is this evidence at page 118.

McHUGH J:   Yes, I know, but that reinforces what, as a matter of commonsense, tells you that if you are going to have this instrument either put down your throat through the mouth, or in through the neck, as a matter of commonsense, one would think, that the risk of perforation depends on ability to perform the operation, and that is confirmed by what occurs at 118 of the book, and you failed to warn her about that.  As a result, she undertook an operation when she may have been deprived of the opportunity of having it being done by a better surgeon and, although the chance of a bacteria infecting the oesophagus may have been present whoever did it, and there was always a chance that the perforation could occur, nevertheless, she was deprived of the chance of having an operation performed by a better surgeon.

MR HIGGS:   But, your Honour, I do mean to be too glib in this, but that is the point.  We say that the onus is on the respondent, or the plaintiff, to prove that there was a real chance of someone better being out there that could minimise the risk of the perforation, and I concede - - -

McHUGH J:   Your doctor had done the operation six times and assisted six times.  Dr Benjamin - I do not know whether he is still practicing, but he was certainly a famous Ear, Nose and Throat Specialist a few years ago - has done the operation 150 ‑ ‑ ‑

MR HIGGS:   But ‑ ‑ ‑

KIRBY J:   But the time will come when your client has done it 150 times.  That is the nature of professional practice.

MR HIGGS:   But, your Honour, there is no evidence that the difference in the risk of perforation being in any way other than speculative, being better when you compare the experience of Dr Chappel with that of Professor Benjamin.  Dr Chappel was not a babe in the woods.  His CV is in volume 2 ‑ ‑ ‑

McHUGH J:   This is Bruce Benjamin, is it?

MR HIGGS:   Yes, it is, your Honour.  I do not cavil for one moment that Professor Benjamin is far more experienced than Dr Chappel.  But that is not the end of the inquiry.  In a case like this the easiest thing in the world for a plaintiff to allege is that there was always someone better out there to do the operation or that something more could be done.  Now, if you accept that the plaintiff bears the onus of proof, surely, and that must be right because it is within the plaintiff’s knowledge as to what he or she would have done and where he or she would have gone to, and the like ‑ ‑ ‑

KIRBY J:   But it is not just subjective.  You have three things running against you here.  First, you have a very inquisitive patient who makes all sorts of inquiries.  That is unusual but it happened and that is it - accepted.  Secondly, you have a defect in advice, which you accept, and thirdly, as I understand it, you have an incidence of perforation which is the pre-condition to the risk that eventuated which is substantially higher, 100 per cent higher, in your client than apparently in Professor Benjamin.  Therefore, the suggestion is, with this inquisitive patient, if she had been told, “Yes, there is a risk”, that she might have gone along and got somebody else, maybe not Benjamin, but somebody else who was more experienced, who would reduce the incidence of perforation and thus the incidence of the infection that caused her disability.

MR HIGGS:   It is true that of the three steps that led to this lady’s injury, as your Honour Justice McHugh said, that the one thing that could be concentrated upon by the plaintiff was to see whether or not there was any real chance of minimising the risk by going to a person who could perform this operation and have a better track record with perforations.

McHUGH J:   I suppose there is no evidence in this case as to what the standard of skills was of Chappel, was there, Mr Higgs?

MR HIGGS:   There was evidence that he had done three of these procedures by himself whilst in private practice.  He had done half a dozen as a registrar and he had assisted in half a dozen more.  The evidence in that regard is to be found at page 131 and the better evidence is probably at 138 to 139 of the appeal book.  At 131 Dr Chappel gave evidence first on this topic at lines 25 onwards:

Q.  In 1983 had you performed this procedure before hand?
A.  Yes, I had.

Q.  On about how many occasions?
A.  Abut a dozen times in my Registrar training and another two or three times since going to practice.

Q.  And in relation to the two to three times whilst in private practice, would you have given the type of warning -

That is beside the point.  Then he goes on down the bottom of the page - he did a similar procedure that involved the insertion of a rigid tube down the oesophagus called an “oesophaguscopy”, or something like that, and he had done 50 or 60 of those as they were a very similar procedure, and then at page 138 that evidence in cross-examination was whittled down a bit because 131:

Your experience in relation to this procedure was confined to twelve operations as a Registrar?

And then over the page to line 20 he makes it plain that he has done two to three in private practice and that of half of the dozen that he did as a registrar it was only the six that he had done himself.

So there is no evidence, when you go to - you see, Professor Benjamin does not get up and say, “Look, you take this fellow’s experience into account, and I would be better.”  He is never asked that.

McHUGH J:   I know that, but the other thing is that, I assume doctors are like barristers.  I mean, you can tell a good barrister the first day he appears in court, and his performance or her performance on the first or second day in court may be better than people that have been there 20 or 30 years.  Maybe doctors are the same, I assume they are.  Some people are brilliant, some are not.  Is there any evidence as to the capacity of this particular doctor?

MR HIGGS:   Dr Chappel?

McHUGH J:   Yes.  I mean, in terms of his general flair for this operation, his care and skill.

MR HIGGS:   There was a finding by his Honour that he was careful and caring, in the judgment.  There is ‑ ‑ ‑

KIRBY J:   There is always going to be a hierarchy of skills, and I think a plaintiff cannot succeed simply because the plaintiff proves that there is somebody who would do a job better.  That cannot be the law.

MR HIGGS:   That is right.  You see, the other thing, too, is that when you come to a judge - you see, if in fact this was going to be seriously asserted by the respondent, why is it that in order to elevate this assertion from mere ‑ the assertion of there being a real chance that she would have had a better outcome if she had gone to someone else - why is it that they cannot, and they should not be required to ask the question, “Well, given that you’ve done 100 to 150, and you have got this man’s track record, where does he fall in the one to twenty to one to forty as compared to you?” 

You see, in that case that I will - that has cursed me for a long time, Ferrcom v Commercial Union, there was the judgment of Justice Handley in that case.  That was a case where a crane turns over at Darling Harbour.  The owner of the crane sues the insurance company, and it was one of those cases that went off because the owner of the crane had not given evidence that had he been warned of this particular exclusion clause that the insurance company only offered - would give insurance for a - registered as an unregistered crane, that he would - he did not succeed in proving causation, because he did not say that he would go off to other insurers and seek a policy from them that did not have this exclusion clause.  Justice Handley in that case said that it is modification or a development of Jones v Dunkel that you draw the inference that the question that was never asked of Mr Ferrarese, who was the owner of that crane, was not asked because the answer would have been positively harmful. The reference to that is 22 NSWLR 389 at 418.

GAUDRON J:   That matter does not advance you, does it, because you did not ask the question of your client either?

MR HIGGS:   But he is not my witness, and the onus is not - it comes down to onus.

McHUGH J:   You did not have the onus?

MR HIGGS:   No.

GAUDRON J:   But in the light of this evidence, which had been led ‑ ‑ ‑

GUMMOW J:   There may have been an evidentiary onus.

GAUDRON J:   In the plaintiff’s case the evidence as to experience and care, that was the evidence, and then you have a doctor, of greater experience, who says he has never had this particular problem, although he does not say what his rate of perforation is, why has not the onus shifted to you?

MR HIGGS:   For the same reason that the onus - I am sorry ‑ ‑ ‑

GAUDRON J:   Yes, well, an onus to say, for example ‑ ‑ ‑

MR HIGGS:   An evidentiary onus.

GAUDRON J:    ‑ ‑ ‑well, I have had as much experience or sufficient experience to be as proficient as anybody else or I have got this flair which is great and which compensates for lack of experience.

MR HIGGS:   Your Honour, that is not consistent with the approach that was taken, not only by the Court of Criminal Appeal in Ferrcom v Commercial Union but by the High Court on appeal when that question was determined in a very similar setting, that is what would you do in the event of the breach of duty not having occurred or the like?  The reference to Ferrcom in the High Court is 176 CLR 332, I think. I can give your Honours that reference in a moment, I am sorry.

McHUGH J:   Could you take me to the precise answer of the plaintiff when the hypothetical question was put to her as to what she would have done?

MR HIGGS:   Yes, I think so. 

HAYNE J:   It is 37 to 38.

MR HIGGS:   Yes.

KIRBY J:   Was not there a debate in Ellis v Wallsend as to whether the question is what the plaintiff says retrospectively?  Have not you to be a little bit cautious about this because, as Justice Gaudron said, once it has all happened everybody could be very wise after events.

MR HIGGS:   No, that is so.  Mr Justice Samuels in Ellis v Wallsend District Hospital said that you have to be very careful in assessing the evidence as to whether or not - because inevitably what will happen is that when you are asking someone what they would have done in the hypothetical situation of the warning being given and you are faced with the catastrophe having befallen you, the catastrophe has to colour the opinion that is expressed by the witness at the time.

KIRBY J:   This is a stronger fact situation because in Ellis it was just a woman who went to the surgeon, whereas here it is agreed it is a woman who went and started interrogating the surgeon and making clear that she was very conscious of risks and wanted to make her own judgment on the matter.

McHUGH J:   Given the answer at 118 and given her answer at 38, does not her answer at line 15 create some real problems for you as a matter of causation because she said:

I would have wanted the most experienced person, with a record and a reputation in the field.

MR HIGGS:   But going to the most experienced surgeon does not necessarily mean that her chances of a better outcome are greater.

McHUGH J:   It does mean this, does it not, that having regard to the answer at 118 there was a greater chance that she would avoid a perforation and, therefore, she had a greater chance of avoiding the mediastinitis.

MR HIGGS:   I cannot cavil with the finding that she would, in all likelihood, if warned, not have had the operation at that time and would not have had the operation performed by Dr Chappel, but then I come back to the point that I have already developed, that we say that you cannot stop there.  You have got to then ask whether or not this risk that she ultimately faced, and would have faced anyway, was the loss of a chance that had some value.

McHUGH J:   One would have thought it had a high value because - perhaps a 95 per cent chance.

MR HIGGS:   But that is - well, the point we say, that it is speculation, that there is no evidence of that.  The onus is on the plaintiff.  The evidentiary burden has not shifted.  That is something that, in some circumstances, depending upon the facts of a case, can occur; but not here, when the question is not asked by the party that bears the onus of proof, for the very same reasons, or process of reasoning, that was adopted by Justice Handley in Ferrcom.

KIRBY J:   Can I ask, is it agreed that the condition from which the respondent suffered has, as a precondition, perforation?
]
MR HIGGS:   Yes.

KIRBY J:   And is it agree that the incidence of perforation in operations performed by Professor Benjamin was significantly lower than the average incidence of perforation by other surgeons?

MR HIGGS:   No, because you are looking - this evidence at 118, what are we looking at?  We are looking at here he is in a unit that has a range of staff, the experience of which we have no idea about at all.  Now, I appreciate that this is something that the person who ran this trial for the defendant at first instance has to cop, but this evidence came out of the blue.  There was no report about it and, you then ask yourself what weight is to be given to it?  Now, is it the situation that you have to say if that type of evidence is led, and it goes no further than the evidence that is set out at page 118, that that is not only evidence of the fact that perforations are not uncommon, which is the way that this evidence was used and only used by the trial judge that had the benefit of looking at the witness give the evidence, and that impression, we would submit, is of significance in the Abalos sense.  You see, if you read that answer and give emphasis to the word “could”:

occur as often as one in twenty, thirty or forty -

then that can colour that answer in a way that makes it perfectly legitimate for the judge to go not that step further and say that the evidence showed that Professor Benjamin had a significantly better strike rate than Dr Chappel.

GAUDRON J:   But you can infer from the evidence that he had significantly greater experience.  In fact, the evidence is directly to that effect, that he had significantly greater experience, and he relates the risk of perforation, at page 118, to experience.

MR HIGGS:   But what experience?  The thing is is that there are many things that are done in any field of professional indemnity or an endeavour that requires skill that is mastered earlier in the piece rather than later in the piece.

GUMMOW J:   So?  Well, what follows from that - - -

MR HIGGS:   And in this case, you could hardly say that Dr Chappel was - sorry?

GUMMOW J:   What follows from that general proposition?

MR HIGGS:   I am being ably led.  That you get to the one in forty more quickly.  There is a word - what is the word? - monotonically is apparently an expression that your Honour Justice McHugh is enamoured with.  You do not assume that there is an ever constant, increasing skill by reference to the number of operations that you carry out.

KIRBY J:   But it is a false logic to say that the average strike rate of complication is between one and twenty and one in forty, and here is a surgeon, Professor Benjamin, who has carried out 150 without a single perforation.

MR HIGGS:   Well, 100 to 150, I know I might be nitpicking but - - -

KIRBY J:   Nevertheless, even if it be 100, it is still five times better than the average strike rate.

MR HIGGS:   But, your Honour, the one in twenty is not necessarily the average strike rate, and it is not - - -

KIRBY J:   Well, he says at 118 that they have done x-ray surveys and I thought he said that they have found that:

it could occur as often as one in.....thirty or one in forty.

MR HIGGS:   It could, and you see this was a study, there is no evidence of the size of the study, that one hospital that threw up a result that, not only is it dependent upon experience, but it is also dependent upon care.  There is no attempt made - - -

KIRBY J:   No doubt the team and the facilities, and all sorts of other factors, but the fact of the matter is that you can reduce the incidence of perforation by the choice of surgeon and skill, and if the patient wants to know is there a risk, and is not told that, and if had been told it would have taken some inquiries to find where the risk could be minimised, well you, it seems, have to bear the risk.

MR HIGGS:   But that, with respect, is not the inquiry.  The inquiry is that this lady suffer the indignity of being exposed to a greater risk of perforation in the hands of Dr Chappel as compared to others.  It is inevitable that you could always assert that in any procedure of this type, that there will be a range of risk, depending upon experience and care, and there are undoubtedly situations where there would be people that Dr Chappel would be better than.  The one in twenty is not necessarily a figure that is an average.  It is a figure that relates to this unit by reference to this - - -

GUMMOW J:   Any statistician would laugh at this sort of evidence, really.  It is just comical, in my view, comical.

MR HIGGS:   Exactly.

KIRBY J:   It is the only evidence that was before the primary judge.

MR HIGGS:   And is that enough to ground the finding of the type that Justice Handley wanted to latch on to?

GUMMOW J:   That does not mean you win, though.

MR HIGGS:   Your Honour is teasing me.  It should, if the onus has not been discharged, and you see what is more, I come back and I am sorry if I repeat myself, it comes back to the way in which the trial judge used this evidence.  Not only did he confine the way in which he used this evidence by saying that it went, and went only, to showing that perforation was not uncommon.  He also went on - even though he mucked up, with respect, the onus of proof - he went on to say that there was no evidence that the risk was not the same, and he went on to say that it would be speculation to make that finding.

Now, the fact that he, we would submit with respect, had the onus question wrong means, however, that when you go to that finding, by virtue of the observation that he had made that in that inquiry the finding of the risk would have been the same, would have been mere speculation, means that he, being cognisant of this evidence - I mean to say he refers to it in his judgment.  The very submission that he is addressing, we would submit, even though it is my submission, is directly on point.  The submission that he is dealing with is whether or not this lady lost the chance of a better outcome or lost the chance of minimising the risk by deferring it.  He goes on to say that in relation to that very submission, that it would be speculation that there was no evidence.  He is cognisant of this evidence, and he does not accept it in the way that the respondent is now contending for.

GAUDRON J:   As you analyse the onus of proof issue as you define it,  that may be a problem going to the assessment of damages, but in the face of evidence which supports an inference that the risk of perforation is reduced by experience and that the plaintiff would have sought a more experienced counsel, why does not the onus of proof then shift to you to establish that, in fact, the risks would have been the same contrary to the inference to be drawn from the evidence led in the plaintiff’s case?

MR HIGGS:   Because the trial judge that looked at this evidence - the only way - he does not say, and not only is the risk not the same, it is different because of this evidence at page 118, and it is no answer to say that there is some advantage to the respondent in that regard because he is ‑ ‑ ‑

GAUDRON J:   I do not think you are answering my question.

MR HIGGS:   I do apologise, I am trying to.

GAUDRON J:   The question is why, in the face of the evidence in the plaintiff’s case, that experience can minimise the risk of perforation and that the plaintiff would have sought a more experienced surgeon, does not the onus then move to you to disprove that or to show that the risks would have been the same?  I am talking in terms of causation, not in terms of the assessment of damages.

MR HIGGS:   The starting point is this, that in Bennett v Minister of Community Welfare 176 CLR 408 at 416, in the majority judgment in the last paragraph, reference is made to the possibility of there being a shift in the onus of proof from the plaintiff to the defendant with respect to questions of causation.

GAUDRON J:   I am just asking you, though, to address that question that really is there adverted to.  It is not said that the onus does not shift.  It just says that in Canada these issues have been discussed in the context of a possible shift and I am talking, really, in terms of an evidentiary shift in light of the evidence presented in the plaintiff’s case in this case.

MR HIGGS:   Your Honour, we submit that in relation to the question of causation, that is a threshold test before you get to the question of damages.

GAUDRON J:   Yes, I am asking you to address it in terms of causation.

MR HIGGS:   Because this evidence at page 118 is just simply not good enough to get to the stage where you make the inference that she, the plaintiff, has lost anything of any worth.

GAUDRON J:   An opportunity to have an operation performed with a reduced risk is surely something of value.

MR HIGGS:   But there is no evidence that there is going to be ‑ ‑ ‑

GAUDRON J:   How to value it might be a different question.

MR HIGGS:   What the plaintiff has to do, as we understand it according to Sellars v Poseidon, is to show in relation to the question of causation as to whether or not she has lost a chance that had some value.

GAUDRON J:   Well assume that the evidence does show that.  Why is the onus then not on you to counter it?  Assume the evidence is capable of doing that, and the trial judge takes the view that it does do that, why has not the onus shifted to you to counter that to lead evidence to the contrary?

MR HIGGS:   If, in fact, the - - -

GUMMOW J:   That is what I thought.  Sellars is a case about loss of an opportunity to acquire a commercial benefit.

MR HIGGS:   Yes, that was the Pagini contract, if I recall.

GUMMOW J:   Yes.  Well, how does that immediately bear on this case in the particular question Justice Gaudron has been putting to you?

MR HIGGS:   Firstly, it answers the query that is raised towards the end of the judgment in Bennett.  It resolves that question that the onus should remain with the plaintiff and, secondly, we say that - - -

GUMMOW J:   Does it say that?  Does it refer to Bennett?

MR HIGGS:   Yes, it does.

GUMMOW J:   And this particular passage in the joint judgment of ‑ ‑ ‑

MR HIGGS:   No, it is not that specific.

GUMMOW J:   No, I did not think so.

MR HIGGS:   But, your Honours, if, in fact, your Honours are of the view that this evidence at page 118 is sufficient to enable an inference to be drawn that there was a chance of some value over and above the chance that Dr Chappel offered this lady to avoid the risk of perforation, then it would be open, depending upon the weight that the trial judge gives to it, for an inference to be drawn of the type that is posed by your Honour Justice Gaudron so as to shift the evidentiary onus.  But there was no - firstly, we say that the evidence at page 118 is not - - -

GUMMOW J:   What about the passage in Bennett at 420, where there is a citation of Sir Owen Dixon’s judgment in Betts v Whittingslowe, 420, the second paragraph, “In practice.”  A similar sort of problem, “in the absence of any sufficient reason to the contrary” - - -

MR HIGGS:   Is your Honour looking at the passage starting, “ In practice, it is now always necessary”?

GUMMOW J:   Yes.

MR HIGGS:   And then, down, “a ‘breach of duty coupled with an accident of the kind - - -

GUMMOW J:   Yes.

GAUDRON J:   Yes.  There are some occasions when there is a shift of the evidentiary onus when it comes to causation and, particularly, when you acknowledge that there was a duty of the kind in question.  You acknowledge that duty because it has some causative significance.  You do not acknowledge a duty of care that has no causative significance to the injuries that actually were sustained.

MR HIGGS:   But, your Honour, simply because the - if that is right, it would mean that the temporal connection, and it alone, would be sufficient to establish causation and that, we would submit - - -

GAUDRON J:   I do not think it means that.  It just does mean, though, that, at some stages, there is a shift of the evidentiary burden.

MR HIGGS:   But, your Honour, that is so - - -

GAUDRON J:   And it comes back, of course, to the question that Justice McHugh asked at the earlier stage of this proceeding:  what exactly was the duty?

MR HIGGS:   Your Honour, if in fact the onus shift is for, firstly, the trial judge - it is an assessment for the trial judge to make and it is not an assessment that he did make.  On the contrary, he made the assessment that on this particular topic, even though the onus of proof point was one that he got wrong, he said that it would be mere speculation.

GAUDRON J:   That is what we are asking, or that is what I have been asking.  That has been the thrust of my questions.  Did the trial judge get the onus wrong?

MR HIGGS:   He said that it was for us to show ‑ ‑ ‑

GAUDRON J:   On the question of causation.

MR HIGGS:   Yes, in relation to the question of causation.  He said that it would be mere speculation that the risk could be the same, and the converse applies, that it would be mere speculation that the risk would be greater.  There are two answers that we have to it:  we say, firstly, that the evidence at page 118 is not sufficient to give rise to an inference as would shift the onus, because it does not go far enough; and, secondly, in light of his Honour’s finding that I referred your Honours to, it is not an inference that his Honour did in fact draw, that he had that special Abalos advantage and he declined to make a finding of the type or to make a finding that would give rise to the evidentiary onus shifting in the way that your Honour poses.

The statement of claim in its original form asserted counts in both contract and tort.....The statement claim was amended on 27 May 1993.  At the hearing, the claim concerning negligent procedures was not pressed -

There were three possible explanations as to how this particular compromise did occur, one of which was negligent procedure.  It is to be found in one of the reports of Professor Benjamin.  But, of course, those two other ways in which this injury could occur fell away because Professor Benjamin at the end of the day, in his evidence, said the way in which his Honour found the injury occurred, which is not challenged on any appeal, did not have anything to do with procedure.  For that reason the allegation of negligent procedure was not pressed.

In answer to the question that your Honour asks, we would submit that in the conduct of a trial a defendant should not be obliged to, in these circumstances, explore every possible allegation of negligent procedure that could be conjured up and to meet it until it is actually alleged.  My learned friend also ‑ ‑ ‑

McHUGH J:   Sorry, before you go on, could you just help me with a point I think I have just grasped.  For much of the argument and, indeed, for all of the argument, I have been under the impression that the mediastinitis is the rare condition, but is that wrong?  Is the rare result in this case is the compromise of the right laryngeal nerve?  So the mediastinitis is always likely to be there, if you have a full perforation in particular?

MR HIGGS:   No, it is not always likely to be there.  It is more common than perhaps a lot of people believe it to be and, I think it is at page 99 in Dr Lewkovitz’s evidence, down towards the bottom of the page, that he talks about in a prophylactic way they are treated “Nil by mouth” to avoid that from being exacerbated in any way.

McHUGH J:   What was so unusual about this case is the compromise of that right recurrent laryngeal nerve. 

MR HIGGS:   Yes.  Normally, a mediastinitis has no lasting effect.

McHUGH J:   So, if - it may depend on which way you approach this case, but the possibility of that happening in another operation was not even 5 per cent, it may have been a million to one, might it not, on the evidence?

MR HIGGS:   Yes, it might have been, but there was no - as I answered an earlier question, it was a very rare event and it was never quantified with any precision.

McHUGH J:   But does that make a difference in terms of the way you assess the damages in this particular case, if that becomes a relevant issue?  The evidence about one in twenty, one in forty, was concerned with perforation, was it not?

MR HIGGS:   Yes.

McHUGH J:   And even if that had occurred, it may have been relatively inconsequential, so that what was highly important for the purpose of this case was the possibility that she would have suffered a compromise of the right recurrent laryngeal nerve.

MR HIGGS:   Yes.  And, you see, in relation to advice - I know it depends on how you approach it.  To some extent, it may well be that do you say, is it - sorry, I withdraw that.  It is the way you approach it, but what is it about the advice, any advice, that could be given that gives any real chance of this risk being, in any meaningful way, diminished?

McHUGH J:   Yes.  I am just wondering, I mean, maybe the plaintiff was lucky to get up on the negligence issue.  No doubt this was known, and yet I notice that Dr Benjamin said that he had searched through the journals and through the reports and he could not find any example of it having occurred.

MR HIGGS:   No, that is right.

GAUDRON J:   But there was a question in this case.

MR HIGGS:   No, it was a question, and it is not part of - - -

McHUGH J:   Yes, I appreciate that.  Do you accept that one way of looking at the case is to say that when the risk of injury concerning which a defendant should have warned eventuates there is, subject to any question of novus....., ordinarily a causal connection between the failure to warn and the injury and, if the same risk of injury was present in alternative courses of conduct which the plaintiff should or would have taken, it simply is a matter of reduction of damages?

MR HIGGS:   Your Honour, our approach is, and the approach that we would submit is the correct one, is to firstly say, contrary to that which fell from your Honour Justice Gaudron of blending, or in some way bringing together notions of causation and damage, that if anything was made clear by Sellars it was that causation and damages should be approached separately.

McHUGH J:   The way I analysed it, it did approach it separately.

MR HIGGS:   I am sorry, your Honour, that is true.  But we go on to say that the threshold test is whether or not, by reference to the scope of the duty, that on the balance of probabilities causation has been established, because, in our submission, it cannot be said that our advice had anything to do that was of any value to the plaintiff in order to minimise this risk.

McHUGH J:   I know, but I may be hopelessly compromised by my long‑standing belief in the “but for” test but the fact is this plaintiff suffered physical damage.

MR HIGGS:   I thought that your Honour had been dissuaded from that heresy because of the concurring judgments after March v Stramere.

McHUGH J:   That is so, but it may still, nevertheless, be operating on a subconscious level but this is not a case of the plaintiff losing an opportunity to back a winner or to win a horse race as in Howe v Teefy, or to win a beauty contest or to win a lottery or to even get a job.  This is a case where the plaintiff has suffered physical injury by reason of your failure to warn.  Now why is not, once the injury and the risk are precise and seen to be connected, why is not that enough to prove causal connection?

MR HIGGS:   For this reason, because it is to be distinguished from negligent procedure cases.  If it is a negligent procedure, it can be said ‑ ‑ ‑

GUMMOW J:   It is a procedure.  It does not matter whether it is careless or not on this theory.

MR HIGGS:   But negligent procedure cases, in terms of causation, are to be distinguished from negligent advice cases because in a negligent procedure case it is the procedure, if done improperly, that causes the injury.  That is different here.  All we can do, I am sorry, I did not mean to ‑ ‑ ‑

GAUDRON J:   I was going to say, perhaps the closer analogy in a case of this kind is trespass to the person, where the procedure is, in fact, done and done with an uninformed consent, if you like, and you are still talking about the procedure when it would not otherwise have been done.

MR HIGGS:   That, your Honour, was considered by the House of Lords, I think in a case called Bolam where ‑ ‑ ‑

GAUDRON J:   This Court has moved on from Bolam.

MR HIGGS:   No, but not in that regard.  This Court has moved on since Bolam, your Honour, but both in Bolam and in Rogers v Whitaker this type of case - in Bolam the allegation of trespass was made and the analysis was that in this type of case trespass does not come into it in the event of them having a general idea of what the operation was.  Rather it is a case where an opportunity has been lost because the advice has not armed the patient to make decisions commensurate with the sovereignty that one has over one’s own body.

So it is like the lottery here, when you look at what it is that we can do and the attitude of the patient that she is prepared to take the risk.  If the risk is in no way, shape or form affected by the advice, then how is it that the - we say that the threshold test of causation has not been met.  I know the way in which your Honour analyses it might come to the same result but, quite frankly, we would prefer to have a situation where, in cases like this in accordance, we say, to Sellars, where - that was a case about, as Justice Gummow said, the loss of a commercial risk - but nothing here is any different.  If in fact there is the loss of a chance here that is to do with an outcome that she is prepared to take, even if properly advised, then, in our submission, causation is not established.

GAUDRON J:   Why is that not the case in every case of failure to warn?  For example, the failure to warn the man that there are hidden rocks in the rock pool, why is that not analysed in terms of the loss of opportunity not to dive or to dive elsewhere; or the injured worker who is not warned of the dangers inherent in a process?

MR HIGGS:   Because that is a case where the obvious inference to be drawn is that the person would not jump into the pool where the rocks were.  That is an inference that readily is drawn in favour of the plaintiff and in respect to which there can be no criticism.  But here, it is quite different.  The patient here has made it perfectly plain that she was prepared to take on the risk, albeit at a later point in time.

It is exactly the same as a whole lot of other advice cases where the question of causation, such as in misrepresentation cases and the like, and Gates is one case that we refer to in the written submissions, and Norwest, the other one where an insurance broker fails to secure adequate insurance.  It is always tied up with, as in Ellis v Wallsend District Hospital, what the person who is being subject to the abuse of the negligent advice or the misrepresentation would have done, because tied up in this lady’s cause of action is - the threshold test is whether or not in any material way her sovereignty over her own body has been compromised.

My learned friend also submitted that because of the cross‑examination of the plaintiff at first instance, she was never given the opportunity of answering what she would have done had the operation been deferred.  At page 50, lines 25 to 40 and elsewhere, she was cross-examined about the fact that she in fact did undergo the operation at the hands of Professor Benjamin in 1985 and, in our submission, that was sufficient, in the circumstances, as to meet that criticism of the way in which the case was run.

KIRBY J:   Not quite, because that was a repair operation, was it not?

MR HIGGS:   No, your Honour, it was for the very same problem.

KIRBY J:   Yes, it was.

MR HIGGS:   It is not a repair operation, no.

KIRBY J:   Was it not?

MR HIGGS:   No, it was a further operation in all respects, in terms of risk, the same as the operation that we carried out.  The operation that we carried out needed to - that the pharyngeal pouch needed to be further dissected.  So, there was a partial dissection of the pharyngeal pouch.  One would assume in the normal course of events there was - - -

GUMMOW J:   But was there the same risk to the nerve?

MR HIGGS:   Yes.  There was a difference in the procedure because the dissection - - -

GAUDRON J:   Or was it a risk to the left laryngeal nerve ‑ ‑ ‑

MR HIGGS:   Sorry, there was the same risk of perforation and, once that was there, then the same consequences flow.

GUMMOW J:   To the other nerve.

MR HIGGS:   Yes.

GUMMOW J:   To the good nerve.

MR HIGGS:   To the good nerve.  But I do not want to mislead your Honour.  The evidence was confined to this; that there was the same risk of perforation and, hence, consequential mediastinitis, because any perforation, provided it was a full perforation, even if it was very small, led to the same risk of mediastinitis.  The references in that regard - Professor Benjamin gave evidence at page 116, from lines 30 to 40, where he was asked about the procedure that was carried out on 7 June 1985 and he was asked this question:

Was that a procedure that had less risks associated with it so far as say rupture of the oesophagus was concerned than the earlier procedures?

It has less risks but it still does have that risk of ruptured oesophagus.

And Dr Lewkowitz, at page 110, line 23, I think it is, to about 25 was asked ‑ he is not so strong, but he gave evidence:

Q.   The procedure that Dr Chappel carried out in 1983, as I understand it, can now be carried out using laser rather than ordinary electric current to cut.  Is that right?
A.   Yes.

Q.   With the use of laser perforation is still a recognised complication, is it not?
A.   Yes.

I think that the references about even a minor perforation causing to mediastinitis, I have already given those, 118, line 50, and at page 100 at about line 10. 

Your Honour Justice Gummow in the course of argument asked my learned friend to address whether or not there is any different approach that should be made, depending upon whether the claim is made in contract or tort.  In our submission, there should not be, and the starting point is this.  The duty of care is the same - and authority for that proposition is to be found in Hawkins v Clayton, and the reference that we have given in footnote 11 on page 7 of the written submissions.

GAUDRON J:   Is there not this difference though?  If you were to succeed on causation in tort there would be a verdict for the defendant, but in contract there would be a verdict on proof of failure to warn, with perhaps nominal damages.  Is that not right?

MR HIGGS:   Your Honour Justice McHugh, in Alexander v Cambridge Credit (1987) 9 NSWLR 310 considered the point on causation. At page 357, at about point G, your Honour considered the case of Simonius Vischer v Holt & Thompson, and in relation to the question of causation, that was a negligent audit case, your Honour said:

In principle the same rule must apply in the law of contract unless the terms of the contract require the sole or dominant cause to be determined.

McHUGH J:   That is a different issue.  What Justice Gaudron is putting to you concerns causes of action.  Upon breach of a contract the cause of action is complete; the plaintiff is entitled to a verdict; it might only be for one cent.  What other damages the plaintiff recovers no doubt depends upon causation, and the tests are the same, the principles are the same for contract and tort.  Damage is the gist of the action for negligence so the plaintiff must prove damage.  But in contract, to have a cause a action, all she has to do is prove a breach of duty, and on your admission there has been a breach

of that duty, and on any view of this case the plaintiff is entitled to a verdict for something.

MR HIGGS:   Your Honour, in relation to that, if that be so, our submission is that the damages would be nil.

McHUGH J:   It cannot be nil, it has to be a verdict for the plaintiff for something.  It may be only nominal, but there has to be a verdict on your own admission.  There is no way you can get a verdict in this case.

MR HIGGS:   Your Honour, the only other proposition that I could put forward in that regard is that, in the same authority at 352 at about point C, that was at a time when the “but for” test was the test for causation in tort.

McHUGH J:   But I appreciate that.  I would not retract a word that is written on those pages, but we are dealing with two different - - -

MR HIGGS:   I would not expect that your Honour would.

McHUGH J:   No, I have retracted plenty of statements in my judgments, in some anyhow.

MR HIGGS:   In March v Stramare.

McHUGH J:   In some, but it is a question of proving a cause of action and one has to prove damage in negligence.  One does not have to prove damage to have a cause of action in contract.

MR HIGGS:   Yes, your Honour, I cannot advance it any further.  They are our submissions.

KIRBY J:   May I ask what is your attitude to the application that has been foreshadowed on the behalf of the respondent?

MR HIGGS:   We would not oppose that.

KIRBY J:   Yes.

MR DONOHOE:   Your Honour, may I correct one matter?  I gave a wrong answer to a question from Justice Kirby.  I was referring to the cross‑examination at 68 and I was asked whether there was evidence about cancer in untreated pouches.  My learned friend did explore that.  Dr Lewkovitz at 113 to 114, I apologise.

GUMMOW J:   What is this application that you do not have any opposition for?

MR DONOHOE:   I seek leave to file a notice of contention, if leave is granted to my learned friend, to amend his notice of appeal.

GUMMOW J:   What would the notice of contention be?

MR DONOHOE:   That, even if one approaches the quantum on a probabilities basis, his Honour was right for different reasons.

GUMMOW J:   Yes, I see.

KIRBY J:   That is on the loss of chance basis?

MR DONOHOE:   Yes.

GAUDRON J:   Yes, that is interesting.  Well, that along with the question of the amendment of the notice of appeal will be reserved for final decision and I take it, just to be sure about this, that both parties have said all that they wish to say, both of the grant of leave and on the consequences should leave be granted.

MR HIGGS:   Does your Honour want us to file a document within a time setting out the amendment in the way that we have outlined?

GAUDRON J:   Yes, within seven days and similarly the notice of contention within seven days thereafter.  And, of course, as already indicated Mr Donohoe has leave to file some written submissions on the English case, to which Justice Gummow referred, within seven days with a right of reply to you within a further seven days.

MR HIGGS:   If your Honour pleases.

KIRBY J:   And he would have come back with the notice of amended appeal after lunch.

MR HIGGS:   Your Honour, we were not as lazy as perhaps your Honour might - we were looking at the contract point.  We thought that that would have been of greater help and I do apologise.  We should have handed some notes over the luncheon adjournment.

GAUDRON J:   The Court will reserve its decision in this matter.

AT 4.11 PM THE MATTER WAS ADJOURNED