di Carlo v Dubois and Ors

[2005] HCATrans 166

[2005] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2004

B e t w e e n -

SALVATORE di CARLO

Applicant

and

DR PHILIP JAMES DUBOIS

First Respondent

PHILIP DUBOIS (MEDICAL) PTY LIMITED

Second Respondent

DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH TRADING UNDER THE FIRM NAME OR STYLE OF QUEENSLAND XRAY SERVICES

Third Respondent

MICHAEL CORONEOS

Fourth Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 11.52 AM

Copyright in the High Court of Australia

__________________

MR N.M. COOKE, QC:   If the Court pleases, I appear for the applicant.  (instructed by the applicant).

MR R.V. HANSON, QC:   May it please the Court, I appear with my learned friend, MR P.L. FEELY, for the first, second and third respondents.  (instructed by Flower & Hart Solicitors)

KIRBY J:   There is no appearance for the fourth respondent, is there?  The fourth respondent, is that Dr Coroneos?  Is Dr Coroneos in Court, because the Registrar received a notification that Dr Coroneos wanted to appear but he was told that he would have to file a formal appearance with the Court.  Is he in Court?  Is Dr Coroneos present?  Very well, we will assume that following the exchange with the Registrar he has decided that he will not appear in the application.  Yes, Mr Cooke.

MR COOKE:   Your Honour, this application involves the difficult question of proving causation in a case of medical negligence where the negligence is failure to warn of the consequences of a particular procedure.  In this particular case ‑ ‑ ‑

KIRBY J:   Is that not quintessentially a matter that has to be evaluated by the trial judge who had the benefit of seeing your client and hearing what your client said, but notwithstanding what your client said that he would not have had the procedure, the judge concluded that he would have had the procedure.  I mean he was concerned about the vertigo.  That was a conclusion that was open to the trial judge and not disturbed by the Court of Appeal.

MR COOKE:   Your Honour, no, that is not entirely correct.  The trial judge found against the plaintiff both on duty of care ‑ ‑ ‑

KIRBY J:   Yes, but he did reach a conclusion about the causation question, did he not?

MR COOKE:   Yes, he did.  All he said about that, your Honour, was ‑ ‑ ‑

KIRBY J:   Is your point the technical point that because he found no duty of care he did not finally resolve the causation point?

MR COOKE:   Well, he did, but not satisfactorily, your Honour.

KIRBY J:   Why is it not satisfactory?  He says, “I don’t believe there’s a duty of care”, and I think Justice Williams in the Court of Appeal agreed with that, is that correct?

MR COOKE:   Yes.

KIRBY J:   They are pretty powerful reasons of the other members of the Court of Appeal to conclude that he ought to have given a warning, having regard to the authority of this Court, but then both at trial and in the Court of Appeal their Honours considered alternatively, did they not, the question of causation?

MR COOKE:   Yes, but in doing so, your Honour, they did not apply the subjective test to the question, nor did they properly direct themselves about the onus of proof of the question of causation.  Only one judge, that was Justice Davies in the Court of Appeal, adverted to any shifting onus that arose in this case and ‑ ‑ ‑

KIRBY J:   There cannot be a shifting onus.  There may be a shifting evidentiary burden.

MR COOKE:   I am sorry, it is an evidentiary burden.  Justice Davies was the only one who adverted to that question.  Now, your Honour, if we proceeded on the basis that if the Court of Appeal held that there was a duty to warn and no warning was given, and the particular event which they should have warned about in fact occurred, that that establishes prima facie evidence of causation.

KIRBY J:   Yes, but there is still the question would this particular person standing before me in court have undergone the procedure and he was very concerned about it.  One could understand why he was concerned about the vertigo and the dislocation it would cause, and the judge found that he would have, and on the logic of the case and the evidence it is of an entirely reasonable, even compelling, conclusion.

MR COOKE:   Well, your Honour, with respect, there is a whole lot of other evidence about the personality and so forth of the plaintiff, which neither the Court of Appeal nor the trial judge considered in determining the subjective question as to whether this particular plaintiff, had he been warned of the particular risk, would still have gone ahead.  Now, your Honour, the evidence was that he was a person who asked questions of the doctors about procedures.  He was, certainly, very concerned about his health, but about the vertigo, he had been to seen other specialists before.

He came to see Dr Coroneos on the basis that it may have been some tumour.  Now, Dr Coroneos gave evidence that there were no chemical signs of tumour.  He told the plaintiff that if it was a tumour it would have been obvious by now because he was having the vertigo question investigated some years prior.  So he said he was 99 per cent that there was no pathology and no tumour there, and he recommended the plain CT.

Now, if a warning had been given at some stage by the radiologist, on the basis of this person’s personality, it was likely, in our submission, that he would have asked questions about the procedure.  He would have wanted to know about the percentages of the risk.  He would have wanted to know what alternative possibilities there were, and balance that against a 0.1 per cent risk that he might have a tumour, or might be found to have ‑ ‑ ‑

KIRBY J:   Yes, but every time you have an operation, every time anybody has anaesthetic there is a risk of that order and, similarly, angiograms and every other procedure that people take, there is risk of that order, yet millions of people make those decisions every day and go ahead with it.  Your client denied he would go ahead with it, and that was put before the trial judge, and the trial judge disbelieved him on that assertion.  So it is pretty hard to ask an appellate court, and doubly hard to ask this Court in the face of the decision of the Court of Appeal, that we would reach a different conclusion.

MR COOKE:   Yes.  Well, your Honour, the Court of Appeal in fact decided on two points, first of all that he was excessively concerned about his health and, secondly, that the only way of dispelling that 0.1 per cent was by means of an enhanced CT scan.  Now, your Honour, that was not the evidence at all.  The evidence was (a) that if you have an unenhanced CT scan which showed no abnormality, the prospects of finding an abnormality with an enhanced CT scan were very small.  Secondly, that a CT scan with enhancement was not the best diagnostic tool; an MRI was the best diagnostic tool if that is what you want…..  You have to weigh that up against his previous history of trauma, his fear of death and assess then as to whether, if he were told all of the appropriate facts, he would have decided to take the risk of one in 2,000 that he may have a life-threatening experience.  None of the judges in the Court of Appeal who found a question of causation afresh considered those factors, those personal factors relating to the plaintiff.

In fact, the trial judge really did not evaluate that either.  He just simply said, “I don’t believe him when he said, ‘I would not have had this procedure if I had been warned ‑ ‑ ‑

KIRBY J:   Well, you will know, Mr Cooke, I am the least sympathetic to the Abalos principle, but it is still part of our law in the context of the general statement in Fox v Percy.  You cannot really ask the High Court of Australia against the decision of the trial judge, “I don’t believe him”.  I mean we do not see him.  We do not get the atmosphere and the detail of the trial.  We deal with these things on appeal books.  How could the High Court of Australia ever substitute a view in such a case against concurrent findings of fact?  He would have undergone the procedure anyway.

MR COOKE:   Yes.  Well, your Honour, the trial judge really did not base his findings of credibility on observations, particular observations, of the plaintiff.  The decision was written some 12 months after the trial.

KIRBY J:   It arises in every case of this kind, of failure to warn.  It is the big issue.  Virtually always, the plaintiff said, “If only I had been told, I would have run to Bourke.  I would never want to have the operation.  I’ll end up like Neville Wran with a bad throat”:  Chappel v Hart.  They all say that.  Judges say, “We have to be a bit sceptical about this”, and then they have to make an assessment.  In this case the assessment was against your client.

MR COOKE:   Well, except that the expression of the evidentiary onus was not discussed by the trial judge or in fact by the Court of Appeal except for Justice Davies, who accepted ‑ ‑ ‑

KIRBY J:   Justice Davies stated correctly, did he not, the subjective test?  He quoted Justice McHugh.

MR COOKE:   He quoted Justice McHugh, but he said ‑ ‑ ‑

KIRBY J:   That was in Rosenberg, was it not?

MR COOKE:   On the evidentiary onus he said that only slight evidence was required to displace that.  Now, your Honour, we would submit that that is not a correct statement.  But if there is a prima facie evidence to support the causation, then the other party has an obligation, and on the balance of probabilities, of breaking that causation and in this particular case they chose to do it by saying that even if he was warned he would have had the scan nevertheless.

Now, your Honour, it is not really a slight onus; it is an ordinary onus, an evidentiary onus, of satisfying that.  They have then the obligation to point to evidence to show that he would have.  Now, what the Court of Appeal judges said was that that had been established by the fact that the only other – that had been proved – way of dispelling that 0.1 per cent was to have an enhanced CT scan and in doing so they went contrary to the evidence that was there; nor did they consider these personal subjective matters that applied to this particular plaintiff in determining the question as to whether he would have had that operation ‑ ‑ ‑

KIRBY J:   Well, you cannot say that they did not consider them.  They did not spell it out in the reasons.

MR COOKE:   They certainly did not spell it out in the reasons and if they make no mention about it, one must assume they did not consider that evidence particularly carefully, particularly when they got the evidence about the only method of excluding that right.  They got the evidence about that – was just wrong ‑ ‑ ‑

KIRBY J:   There was a second point in your application concerning the objection to Justice Philip McMurdo sitting in the case.

MR COOKE:   Yes.

KIRBY J:   Is that pressed?

MR COOKE:   Your Honour, in respect of that one we submit that with regard to bias there are particular circumstances in this case where the plaintiff is a barrister practising in front of the courts and ‑ ‑ ‑

KIRBY J:   But your client knew that Justice McMurdo at the Bar had taken part in the inquiry, did he not?

MR COOKE:   Yes.

KIRBY J:   And he knew it when the court was announced and Justice Philip McMurdo appeared, and he raised no objection.  Why is that not waiver in accordance with Vakauta v Kelly?

MR COOKE:   Because, your Honour, in our submission, if this was a question as to whether, in some circumstances, where the apprehension of bias can apply there should be an automatic disqualification of the judge without objection having to be taken to it.  It places a litigant, particularly a litigant who is a barrister, in a particularly invidious position to have ‑ ‑ ‑

KIRBY J:   It does, but it places this Court in an invidious position months and even years later, when the objection is raised when the litigant does not like the outcome of the case.  I can understand a view that a person affected cannot waive the community’s right to have a trial which is conducted by an impartial tribunal.  I can understand that.  This Court in Vakauta v Kelly, and repeated many times and applied everywhere through this nation, has accepted that the person most affected can waive, and that is the law.  If you apply that law in this case – I mean when does the constitution of a Court of Appeal become announced?  Is that the day before?

MR COOKE:   Yes, I think it was probably the day before.

KIRBY J:   Well, that is the time when people who have objections to judges sitting can communicate without embarrassment to the registrar of the court that there is a particular problem, and raise that matter so the judge can consider it, but your client did nothing like that.

MR COOKE:   No.

KIRBY J:   He just, as it were, sat there, took the constitution of the court and then does not like the outcome and now raises the objection.  That is waiver, is it not?  Correct me if I am wrong.

MR COOKE:   It can be a waiver, yes, but, in our submission, the House of Lords in Pinochet seem to put the question of automatic disqualification.  In other words, a judge is not required to go in and say ‑ ‑ ‑

KIRBY J:   But was this a case of automatic disqualification?  The issues were professional complaints, whereas the issue in the appeal is a negligence appeal.

MR COOKE:   One of the prime issues in the appeal was the credibility of the applicant, and that is a question that would have been investigated by the disciplinary proceedings of which Justice McMurdo was present, and there was a statement, which we referred to in our submissions, in his reasons where he made a comment, which we can find no basis for in the transcript of evidence of the plaintiff’s, and one can only assume that it must have been some residue of information which his Honour had as a result of the disciplinary proceedings.

KIRBY J:   No matter was announced at the beginning of the case by Justice Philip McMurdo.

MR COOKE:   No.  No announcement was made at all, and we took no objection because of the difficult decision that we would have to make if we objected to a judge.

KIRBY J:   Well, you are objecting to it now.

MR COOKE:   Well, we are now, probably because the applicant’s resolve has been ‑ ‑ ‑

KIRBY J:   Like the old song, “Now is the Hour”.  If you are going to have to gird your loins and face up to such a matter it is better, and it is the law, that you have to do so at the time the judge that you are objecting to, and it is fairer to that judge; so that the judge can consider and decide the matter, and it can be done without embarrassment, or without much embarrassment, by signifying the matter to the registry.  These things do happen, you know.

MR COOKE:   Yes, I am aware of that.  But that is the point ‑ ‑ ‑

KIRBY J:   See Justice McMurdo might well have thought, “Well, I did that and that’s over and done with.  That was a professional discipline matter and now I am in the realm of medical negligence.  It’s got nothing to do with the case.”

MR COOKE:   Well, your Honour, with respect, I do not know that he could have entirely said that when the grounds of appeal specifically raised questions about the judge’s findings on credit and findings in respect of ‑ ‑ ‑

HAYNE J:   There is a third party to this process and that is the opposite party to the appeal and it behoves a party who wishes to object to the composition of the Bench to do so, lest the other party goes through the appeal and later finds that result undone and all the vice that attends rehearings.

KIRBY J:   Which we heard two applications back.

MR COOKE:   Yes.

KIRBY J:   Anyway, we understand the point.  Is there anything else on that point?

MR COOKE:   No, your Honour.

KIRBY J:   I think you have covered both points in the application.

MR COOKE:   Yes, thank you.

KIRBY J:   Thank you very much, Mr Cooke.  The Court does not your assistance, Mr Hanson.

This application arises out of the dismissal of the applicant’s action for damages based on alleged negligence of the respondents in the provision and performance of a medical procedure.

The Court of Appeal of the Supreme Court of Queensland unanimously dismissed an appeal against the judgment at trial, although there was some variation in the reasoning of the Judges of Appeal.

A question arose as to whether the first respondents had been negligent in failing to warn the applicant of the risks of the procedure he underwent.  The primary judge found that there was no duty to warn in the circumstances.  Telling criticisms of that finding were made by two of the appellate judges, Justice Davies and Justice Philip McMurdo.  However, in the end it matters not because the primary judge found that, even if he had been fully warned, the applicant would have gone ahead with the procedure.  He disbelieved the applicant’s statement to the contrary.  That conclusion was decisive.  It was affirmed in the Court of Appeal.  There are no prospects that it would be reversed in this Court.  Having regard to the advantages which the primary judge had in making that determination, this conclusion is fatal to that aspect of the application.

A second question is raised.  It concerns the failure of Justice Philip McMurdo to disclose, before participating in the hearing of the appeal, that at the Bar he had participated in a professional discipline hearing concerning the applicant, a barrister.  The applicant knew of Justice McMurdo’s involvement.  He raised no objection to the judicial participation of Justice McMurdo in his appeal.  This Court has held that complaints of apprehended bias may be waived by those who are chiefly affected:  see Vakauta v Kelly (1989) 167 CLR 568 at 573 and 588. There are no prospects of success on this second issue.

Accordingly, special leave to appeal is refused.  The applicant must pay the costs of the respondents.

AT 12.13 PM THE MATTER WAS CONCLUDED