Elbourne v Gibbs

[2006] NSWCA 127

New South Wales

Court of Appeal

CITATION:	ELBOURNE v GIBBS [2006] NSWCA 127
HEARING DATE(S):	4 April 2006
JUDGMENT DATE:	24 May 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Basten JA at 34
DECISION:	Appeal dismissed with costs
CATCHWORDS:	NEGLIGENCE – duty of care owed by doctor to patient – doctor failed to warn patient of material risks in operation – risks materialised – whether doctor had duty to warn patient of risks. - NEGLIGENCE – causation – whether trial judge made finding in relation to causation – whether breach of duty by failure to warn caused injury – whether the plaintiff needed to only establish a prima facie case of causation in the absence of a more plausible contrary inference.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s5D
CASES CITED:	Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Chapel v Hart (1998) 195 CLR 232 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 CSR Limited v Della Maddalena (2006) 224 ALR 1 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation, Berhad (1999) 196 CLR 161 Henville v Walker (2001) 206 CLR 459 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Naxakis v Western General Hospital (1999) 197 CLR 269; (1999) 73 ALJR 782 Purvis v New South Wales (2003) 217 CLR 92 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Shead v Hooley [2000] NSWCA 362 TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 The Waterways Authority v Fitzgibbon (2005) 221 ALR 402 Travel Compensation Fund v Tambree T/as Tambree and Associates (2005) 80 ALJR 183 Zaltron v Raptis [2001] SASC 209
PARTIES:	Dr Ian Elbourne - Appellant Rodney Gibbs - Respondent
FILE NUMBER(S):	CA 40686/05
COUNSEL:	M. Bozic SC/K. Burke - Appellant P. Menzies QC/P.R. Sternberg - Respondent
SOLICITORS:	Tresscox, Sydney - Appellant Pike & Associates, Bathurst - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3999 of 2004
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	10/08/05

CA 40686/05
DC 3999/04

BEAZLEY JA
IPP JA
BASTEN JA

24 May 2006

ELBOURNE v GIBBS

This is an appeal from a decision of the District Court awarding damages to Mr Gibbs for injuries suffered as a result of the negligence of Dr Elbourne.

Dr Elbourne performed an operation on Mr Gibbs to repair bilateral inguinal hernias. Mr Gibbs had a history of significant health problems prior to the operation. Mr Gibbs suffered a number of adverse effects from the operation, the risks of which Mr Gibbs was unaware of prior to the operation. The District Court held that Dr Elbourne was negligent in failing to warn Mr Gibbs of four material risks associated with the operation.

The primary issues for determination by the Court of Appeal included:

(i) whether the trial judge made a finding in relation to causation; and if not

(ii) whether it was open to the Court of Appeal to make its own finding. This issue turned on the question of whether, had Mr Gibbs had been warned of the risks associated with the operation, he would not have had the operation at that time.

In relation to (i) held per Ipp JA at [6] and Basten JA (Beazley JA agreeing) at [55]:

The trial judge failed to make a finding as to causation.

1. A material increase in risk does not involve a necessary finding of causation: at [61].

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 applied.

2. Where there are multiple ‘effective’ causes of an event, of which only one involves a breach of duty, causation may nevertheless be established, so long as the breach of duty makes a ‘material contribution’ to the harm suffered. The fact that the breach of duty is a cause in the sense noted, may not be sufficient to establish liability; the degree of connection must satisfy the policy underlying the legal attribution of responsibility. Care must be taken to assess causation in its particular statutory or other legal context: at [74].

Chappel v Hart (1998) 195 CLR 232 applied.

3. The evidence of a failure to provide information, particularly as to the potential risks of the procedure, combined with the materialisation of those risks, is sufficient to establish a prima facie case of causation, which is capable of acceptance in the absence of a more plausible contrary inference: at [78].

Chappel v Hart (1998) 195 CLR 232; Shead v Hooley [2000] NSWCA 362 applied.

4. The evidence supported a finding that Mr Gibbs would not have gone ahead with the operation had he been given appropriate warnings. Any evidentiary burden borne by the defendant was left unsatisfied: [97].

5. The evidence relied upon did not depend to any significant extent on an assessment of the witnesses who appeared at trial, nor to any significant degree on the personal characteristics of the plaintiff. Therefore it was open to the Court of Appeal to conclude that causation was established and remittance for further hearing was not required: [105].

Per Ipp JA (dissenting):

1. There is a substantial difference between a finding that risks of which a medical practitioner has not warned a patient was material, and a finding that, had the patient been given the necessary warning, he or she would have elected not to undergo the surgery: at [6].

Rosenberg v Percival (2001) 205 CLR 434 applied.

2. The onus is on the plaintiff to prove causation: at [11].

TC by his tutorSabatino v The State of New South Wales [2001] NSWCA 380 applied.

3. A finding as to the hypothetical question as to how a person would react to a warning is a product of a number of factors, including an assessment of the plaintiff’s testimony on the causation issue; an assessment of the plaintiff’s character and personality; the plaintiff’s age, medical history, experiences and understanding; the degree of risk involved in having the operation and in not having the operation. These are primarily matters for a trial judge: at [21].

Rosenberg v Percival (2001) 205 CLR 434 applied.

4. The Court of Appeal was asked to make a pure finding of fact and no theory of causation could assist the court in making this finding: at [23]–[24].

Chappel v Hart (1998) 195 CLR 232; Shead v Hooley (2000) NSWCA 362, distinguished.

5. In the circumstances of this case, it was not appropriate for the Court of Appeal to make the necessary factual finding and the matter should be remitted to a trial judge: at [30].

CA 40686/05
DC 3999/04

BEAZLEY JA
IPP JA
BASTEN JA

24 May 2006

ELBOURNE v GIBBS

Judgment

1 BEAZLEY JA: I agree with Basten JA.

2 IPP JA: I have had the benefit of reading the reasons for judgment of Basten JA. His Honour sets out the relevant facts relating to this appeal and I shall not repeat them save to the extent necessary to explain the conclusion to which I have come.

3 For purposes of this appeal the defendant accepted the findings by the trial judge, Sorby DCJ, that he had failed to warn the plaintiff of at least two material risks. These were gross swelling of the scrotum and chronic pain resulting from nerve entrapment. The parties disputed whether the risk of an embolism was a material factor. As Basten JA points out, the acceptance that there was a failure to warn about the two conceded material risks means that - were causation to be established in relation to that failure - “his Honour’s finding with respect to the challenged ground, namely the risk of embolism, need not be addressed”. For this reason Basten JA focussed first on the grounds of appeal relating to the judge’s failure to make findings with respect to causation. I, too, shall follow the same course.

4 Having found that the defendant did not warn the plaintiff about material risks, Sorby DCJ said:

“There is no doubt in my mind, on his evidence, that the plaintiff would have attached significance to these risks in making up his mind whether to have surgery. The defendant breached his duty of care he owed the plaintiff. I therefore find the defendant guilty of negligence.
I now turn to damages …”

His Honour made no express finding as to causation.

5 Mr Menzies QC, who together with Mr Sternberg appeared for the plaintiff, submitted that a finding of causation was implicit in his Honour’s judgment. This argument depends, in essence, on the proposition that, because the judge found a breach of duty of care on the part of the defendant, proceeded to assess damages, and granted judgment in favour of the plaintiff, he must be taken to have decided that the defendant’s breach of duty caused the plaintiff to suffer the damages his Honour assessed.

6 In my view, however, a finding of causation cannot be implied on this basis. Reading his Honour’s reasons as a whole, it seems to me more likely that his Honour equated a finding that the plaintiff would have attached significance to the risks of which he was not warned “in making up his mind whether to have surgery” with a finding that, had he been warned of those risks, he would not have had the surgery. If that is what his Honour did, he erred. There is a substantial difference between a finding that the risks of which a medical practitioner has not warned a patient are material, and a finding that, had the patient been given the necessary warning, he or she would have elected not to undergo the surgery.

7 McHugh J pointed out in Rosenberg v Percival (2001) 205 CLR 434 at 449:

“In terms of causation theory, the critical fact is whether the patient would have taken action – refusing to have the operation – that would have avoided the harm suffered. But that fact can only be determined by making an anterior finding as to what the patient would have decided to do, if given the relevant warning. It is not possible to find what the patient would have done without deciding, expressly or by necessary implication, what decision the patient would have made, if a proper warning had been given.”

8 Depending on the circumstances in a particular case, a patient may well decide to have an operation even when he or she is advised of significant risks involved in that operation. Nothing in the present case suggests that the trial judge applied his mind to whether, in this particular case, taking into account all the relevant circumstances, the plaintiff would have elected to have the operation or not. I do not think that his Honour’s reasons can be understood as meaning, implicitly, that he gave consideration to the causation issue.

9 Ordinarily, a failure to make a finding as to causation in a case such as the present would lead to a new trial. Mr Menzies, however, urged this Court, to make a finding as to causation, itself, and to make that finding in favour of the plaintiff.

10 Basten JA has set out a number of factors that tend to support a conclusion that this Court should accept Mr Menzies’ submissions and make a finding of causation in the terms sought by the plaintiff. There are, however, a number of difficulties in the way of this Court making a finding of causation and I need to deal with those.

11 The onus is on the plaintiff to prove causation as Mason P (with whom Beazley JA agreed) said in TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 at [59]:

“… Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission.”

His Honour (at [71]) accepted that it remains the law that it is still necessary for a plaintiff to prove that a defendant’s conduct materially contributed to the sustaining of the injury.

12 Any consideration of causation must be seen against the background that this is not a Rogers v Whitaker (1992) 175 CLR 479 failure to warn case. Rather, as Mr Menzies submitted, had the plaintiff been warned of the material risks, he would have “sought another opinion or delayed the surgery”. Thus the present case is more akin to Chappel v Hart (1998) 195 CLR 232 (although, as I go on to point out there are significant differences between the facts that were not in dispute when Chappel v Hart was argued on appeal and the facts found by the trial judge in this case).

13 According to the defendant, there were major risks involved in delaying the hernia operation. He said that adopting a “wait and see” policy to see if the hernia progressed “would be irresponsible in the extreme”. The defendant was asked in cross-examination why he recommended an “immediate repair” and the following exchange occurred:

“A. Certainly, there are – there are three grades of immediacy recognised by surgeons that is urgent, has to be done today, elective, which can be left for some months and semi-urgent, which is somewhere in between, ideally on the next available operating list would be a practicable description of that. Now I recommended that Mr Gibbs have his painful right inguinal hernia repaired because there was a serious risk that it could strangulate. Now strangulated hernia is one where the contents of the hernia and the most dangerous for him content [sic] would be large or small intestine loops(?). Where they are squeezed with the hernial sack [so] that their blood supply ceases and that segment of bowel becomes gangrenous, dies, disintegrates and causes him to be profoundly unwell or die. The other reason in this patient that it was important to manage things promptly was that he was anti-coagulated and the risk of leaving his hernia to be dealt as an emergency was even higher because then the added difficulty of having full anti-coagulation at the time he presents for an operation that needs to be done within hours is just another difficulty that can be avoided by timely repair.
Q. Did you consider at the time you saw him and formed the view that you’d recommend surgery as semi-urgent, as I think you’ve just described, that there was an option for a wait and see policy to see if the hernia progressed?
A. I think that would be irresponsible in the extreme.
Q. Why do you think it would be irresponsible in the extreme?
HIS HONOUR: Because there’s a serious risk of strangulation.
Q. Is that right doctor?
A. Absolutely your Honour.”

14 Dr Johnson, an experienced cardio-thoracic surgeon, supported the defendant. He said:

“While in the short term it might have been prudent for Dr Elbourne to defer surgery and wait to see if the plaintiff suffered any complications of his bilateral inguinal herniae, this ran the risk of the plaintiff re-presenting at some time in the future with the serious complications of hernia obstruction or in particular, strangulation involving bowel, in both instances requiring urgent surgery where the management of the plaintiff’s anticoagulation state and cardiac status would be much more difficult. At the time of consultation the plaintiff’s cardiac status had been very stable for some time and he had the same dose of Warfarin of 3.5mm daily for some time with stable INR tests.
In my view this was an ideal time to deal with the herniae and both herniae could be repaired at the same time, otherwise a second hernia operation would require further manipulation of anticoagulant medication with further risk. It must be appreciated that patients with prosthetic heart valves, particularly of the mitral prosthesis, are at risk from complications of bleeding or embolism even though they have had excellent anticoagulation control.”

15 Dr Hollings, an experienced general surgeon, was of a different opinion. He said:

“In my opinion it was not necessary for Mr Gibbs to undergo the surgery at the time he did. Apart from the mild sensations occurring while he was passing urine, the hernias were virtually asymptomatic. Mr Gibbs has a very complex past history requiring permanent anti-coagulation, the details of which have been covered in the body of the report. These factors should have led to very serious consideration regarding the indications for surgery.”

Dr Hollings also said:

“I believe that a policy of conservative management would have been reasonable in respect of his hernias once Mr Gibbs had been reassured that he did not have any significant urinary problems. On the balance of probabilities he may well have remained unaware of hernias for some time. I believe that his co-morbidity would strongly indicate that any surgical procedure would have been optimally performed at Royal Prince Alfred Hospital where he had undergone previous major surgery. The further advantage of having surgery at Royal Prince Alfred Hospital was the fact that his cardiologist who had attended him over many years was available to manage the cardiac situation and also monitor his anti-coagulation program.”

In cross-examination Dr Hollings said:

“A. Your Honour I think it was an option to recommend surgery. I think that there were alternatives which the patient may or may not have accepted, but certainly the traditional methods of dealing with hernias is to repair them. This has to be taken into account and balanced against all the other benefits that might be achieved by the surgery and the risks that the surgery produces. The risk of strangulation I have already alluded to. It is very difficult to quantify that ..”

16 The trial judge found, in regard to this issue:

“…[t]he defendant, as the examining doctor and surgeon, was in the best position to assess the necessity for surgery and its timing.”

17 As Basten JA observes, the defendant’s opinion (that a “wait and see policy” was not an appropriate option) “would have been as material an element of the duty of disclosure as the risks of an adverse outcome”. It follows that any determination as to what the plaintiff would have done had the material risks been disclosed to him would have to be based, at least initially, on the advice he would have received from the defendant as to the risks attendant upon delaying the surgery. That advice would have contained a warning that, unless the plaintiff had his right inguinal hernia repaired, there was a serious risk that it could strangulate leading, possibly, to extremely serious illness and even death.

18 The plaintiff, in his evidence, was not asked what his decision would have been had he received a warning in these terms from the defendant.

19 The plaintiff testified that had he been warned about a possible nerve entrapment he would not have had the operation. He said that he would have made this decision as he did not want to put up with the pain. He was asked whether he would have had the surgery had he been informed that as a result of changing his medication he could have a heart attack or a stroke. He said:

“I wouldn’t have had the operation. I would have let it go on and – because I wasn’t in very much, any pain, and I would have waited to see if it got any worse.”

The following exchange occurred in his evidence in chief:

“Q. If you’d been told that there are other options to this surgery one of them is a wait and see approach, that is do nothing at the moment and see what happens, would that have affected your decision?
A. Yes, I would’ve waited and seen.
Q. Why would you have done that?
A. Because I was in no pain with the hernia that I had. I had no swelling or anything else like that.”

20 None of the evidence dealt specifically with the warning about the risks of delaying the surgery that should have accompanied any warning about the material risks of having the surgery.

21 The decision as to how the plaintiff would have reacted had the defendant warned him about the risks of delay in the terms that he, the defendant, perceived them to be, is not an easy one. A finding as to the hypothetical question as to how a person would react to a warning, as McHugh J explained in Rosenberg v Percival at 446, is a “product of a number of matters”. These would include an assessment of the plaintiff’s testimony on the causation issue; an assessment of the plaintiff’s character and personality; the plaintiff’s age, medical history, experiences and understanding; the degree of risk involved in having the operation and in not having the operation. These are primarily matters for a trial judge.

22 The plaintiff gave no evidence as to whether he would have sought a second opinion had he been warned of all the material risks of having or delaying the surgery. The question whether he would have sought a second opinion is fraught with difficulty and is dependent again on matters akin to those that would have to be considered in determining whether an appropriate warning as to the material risks (including the risks of delaying the surgery) would have deterred him from having the surgery.

23 In my view, what was said in Chappel v Hart and subsequent cases as to the shifting of an evidential onus and the relevance of a defendant materially contributing to the risk, does not assist this Court in determining causation. Although I have said that this case is a Chappel v Hart type of failure to warn case, it is – for the purposes of determining whether this Court should make a finding as to causation – different in an important respect. In Chappel v Hart (at least by the time the case came to the High Court) it was accepted that, had the patient been aware of the risk, she would not have had surgery when she did (see 237, 254 and 267). This is the very issue which the trial judge did not determine in this case but which this Court is now, for the first time, asked to decide. No theory of causation can assist the Court in making this finding. It is a pure finding of fact.

24 This case is also, in this respect, fundamentally different from Shead vHooley (2000) NSWCA 362. In Shead v Hooley this Court considered a claim based on a doctor’s failure to give a proper warning of possible adverse consequences of an operation. The trial judge held that, properly warned, the patient would have not agreed to the operation being performed on the date that it was, “at least until other possibilities had been explored” (at [68]). No such finding was made in the present case. I do not think that Shead v Hooley is helpful on the present issue.

25 There is yet another difficult factual issue that has to be decided when determining the causation question. This is the issue described by Basten JA as follows:

“The issues relating to causation are not limited to the question whether the patient would have undergone the procedure had he or she been adequately warned of the risks. If it be established that the procedure was inevitable, in the sense that, on the probabilities, the patient would have undergone the procedure in any event, once properly advised, there is a further question as to whether the same risks would have arisen, or whether steps might have been taken to reduce them. … [A]ll members of the High Court in Chappel v Hart appear to have accepted that, if the operation would have taken place and the risks been essentially the same, the plaintiff would have failed to establish that the harm was caused by the breach of duty.”

26 McHugh J in Chappel v Hart at 244 to 245 [27] said in regard to the requirement of an increased risk of injury:

“If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff.”

27 In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ at 279, [106] pointed out that although McHugh J was in dissent in Chappel v Hart, his observations concerning the need to establish an increase in the risk of injury were referred to with approval in Naxakis v WesternGeneral Hospital (1999) 73 ALJR 782 at 787 [31]; 162 ALR 540 at 547 [31], per Gaudron J and (at 806 [127]; 574 [127]), per Callinan J. Spigelman CJ observed (at 279 [107]):

“The starting point of McHugh J’s analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, ‘and that risk had eventuated’.”

28 In Chappel v Hart Gaudron J held that the failure to warn increased the risk because, had the patient been warned of the risks, she would have retained “the services of the most experienced surgeon in the field” (at 241). Gummow J was of a similar view (see 260 to 262). Gummow J pointed out that the particular risk involved had been the subject of a specific inquiry by the patient of the medical practitioner and the patient had then engaged that medical practitioner to perform the surgery (at 257). Had the warning been given the patient would not have undergone the procedure at the hands of that medical practitioner. She would have wanted “the most experienced person with a record and reputation in the field” (at 260). In Shead v Hooley, “the risks would have been reduced, if only because there would have been a later gastroscopy which would or may have shown that the chronic ulcer was healing” (at [68]).

29 In the present case, the evidence does not deal squarely with the question whether, had the defendant given a warning and had there been a delay, the defendant would have conducted the operation or whether some other surgeon would have been engaged.

30 With all these difficulties inherent in the inquiry into whether the defendant’s failure to warn caused the plaintiff any loss, I do not think that it would be appropriate for this Court to make the necessary factual findings. The task is essentially one for a trial judge. Accordingly, I would uphold the appeal.

31 The next question is whether only the causation issue should be remitted for a fresh trial and, if the answer to that question is in the negative, what issues should be remitted. In this regard, Sorby DCJ determined not only liability but assessed damages.

32 Although I do not think that there is any need to have a retrial on damages, I have come to the conclusion that it would be preferable for all other issues to be litigated again. I appreciate that this imposes a harsh burden on the parties. But, in my view, justice requires all the issues relating to liability to be litigated afresh. The question of causation is closely tied to the issues relating to the failure to warn and the materiality of the risks. The findings on the latter two issues are capable of influencing findings on the causation issue. Question of demeanour and credibility will apply to all these issues. See in this regard TheWaterways Authority v Fitzgibbon (2005) 221 ALR 402 and CSR Limited v Della Maddalena (2006) 224 ALR 1.

33 I propose therefore the following orders:

(a) The appeal is upheld.

(b) The decision of the trial judge as to liability is set aside and the issue of liability is to be remitted to the District Court for retrial.

(c) The plaintiff to pay the defendant’s costs of appeal.

(d) The costs of the trial before Sorby DCJ to be determined by the judge who hears the retrial.

(e) The plaintiff to be granted a certificate under the Suitors Fund Act 1951 if otherwise entitled.

34 BASTEN JA: On 4 July 2001 Mr Gibbs (“the plaintiff”) underwent an operation at Bathurst Base Hospital for the repair of bilateral inguinal hernias. He suffered a number of adverse after effects of the operation, including internal haemorrhaging and a swollen scrotum, nerve entrapment resulting in considerable chronic pain and a heart attack caused by an embolus or clot in a coronary artery.

35 He brought proceedings against the surgeon, Dr Elbourne (“the defendant”), claiming damages for negligence. By the time of the trial in the District Court, the basis of the claim had been narrowed to a failure to warn or inform the plaintiff of the risks of possible adverse consequences of the operation, which had in fact materialised. The trial judge found in favour of the plaintiff and awarded an amount of $244,266 by way of damages.

36 In his written submissions on the appeal, the defendant identified four risks which the trial judge had held to be material risks of which the plaintiff was not warned, namely:

(a) gross swelling of the scrotum;
(b) chronic pain resulting from nerve entrapment;
(c) internal bleeding requiring drainage, and
(d) the risk of an embolism.

37 One ground of appeal (ground 3) related to the finding that there was a failure to warn of a risk of internal bleeding requiring drainage, but by the hearing of the appeal, the plaintiff accepted that his Honour had been in error in that regard. The remaining grounds of appeal related to the finding with respect to the risk of embolism (grounds 1 and 2) and a failure by his Honour to make any finding with respect to causation, linking the breach of duty with the harm suffered: grounds 4 and 5. In relation to causation, the plaintiff gave evidence at his trial that he would not have undergone the operation if he had been properly warned of the risks. He gave such evidence in relation to each of the risks of which he said he was not warned.

38 The plaintiff had significant health problems before undergoing the operation conducted by the defendant, apart from the bilateral hernias which were the subject of the surgical procedure. Damages for physical injury were assessed on the basis that he would not have undergone the procedure at that time had there been a proper warning: see Shead v Hooley [2000] NSWCA 362 at [3] (Mason P). Whether or not the principles succinctly stated by the President were applied need not be addressed, there being no challenge to the assessment of damages.

39 Further, if causation were established in relation to an unchallenged failure to warn, such as the risk of nerve entrapment, so that the operation would not have occurred, his Honour’s finding with respect to the challenged ground, namely the risk of embolism, need not be addressed. The fact that aspects of the harm flowed from the materialisation of risks which may have fallen outside the breach of duty, would not, as the case was presented, have affected the assessment of damages. Accordingly, it is convenient to focus first on the grounds relating to a failure to make findings with respect to causation.

40 There was a difference of views as to the consequence of the Court upholding the contention that there was no finding of causation made by the trial judge. The defendant submitted that the matter would have to go back to the District Court for a retrial, whilst the plaintiff invited this Court to make the necessary findings which, he submitted, were “almost inevitable”.

41 Before addressing these matters, it is necessary to provide some background to the circumstances of the plaintiff immediately prior to the operation, the consultation with Dr Elbourne and in relation to the aftermath of the operation.

Background

42 In July 2001 the plaintiff was 55-years-of-age and had suffered from poor health for most of his adult life. As a child he had suffered three bouts of rheumatic fever causing heart disease. In 1969, when still in his early 20’s, he had two heart valves replaced as a consequence of damage caused by rheumatic fever. In 1985 cancer was diagnosed in his left kidney, which was removed. From 1987 he was on anti-coagulant medication, as a result of the double-valve replacement in 1969.

43 In 1987, he also suffered from sinusitis. An operation was recommended, but he said he did not have the operation because he was concerned that it would not be possible to control his anti-coagulation medication. The medication he was then on, known as Dindevan, was replaced by Warfarin in 1994, when he was admitted to Bathurst Hospital with internal bleeding. He remained on Warfarin until shortly before the hernia operation.

44 On 11 June 2001, he made an appointment to see his general practitioner, Dr Bourke, because he could feel pressure on the right side when passing urine and, having had a kidney removed with cancer, was concerned that he might have prostate cancer. Dr Bourke reassured him in relation to prostate cancer, but diagnosed a hernia. He referred him to Dr Elbourne, whom the plaintiff saw on 28 June 2001. Dr Elbourne diagnosed bilateral hernias and recommended repair of both under surgery.

45 There was extensive examination and cross-examination of the plaintiff as to what was said by Dr Elbourne at that time, which will be referred to below. However, it was common ground that only surgery was considered and that the plaintiff was changed from Warfarin to Clexane as a preferable means of controlling coagulation for the purposes of the surgical procedure. An operation was scheduled for 4 July 2001.

46 The plaintiff was discharged from Bathurst Base Hospital on 6 July 2001, but was readmitted three days later with a large scrotal haematoma, bruising extending into both groins, and experiencing significant pain and discomfort. He was discharged again on 18 July, but readmitted on 20 July with persistent pain from the haematoma, difficulty urinating and difficulty walking, because of the size of his scrotum. He was given a blood transfusion and again discharged.

47 On 30 July, whilst in the defendant’s waiting room, he suffered a heart attack and was transferred to Royal North Shore Hospital. He was later transferred back to Bathurst Base Hospital and discharged from that hospital on 7 August 2001. The pain in the groin continued, as did the swelling in the scrotum. On 30 August he saw a Dr Bernstein and was admitted to Royal Prince Alfred Hospital on 12 September to have the haematoma in his scrotum drained. He was discharged on 24 September.

48 He made other visits to medical practitioners in 2002, but continued to suffer pain throughout 2002 and up to June 2003. He stated in evidence (Tcpt, p 52):

“I was having a lot of pain and the pain was that severe that I wish I had have died when I had the heart attack.”

49 In May 2003 he saw a Dr Eyers who admitted him for further surgery at Royal Prince Alfred Hospital. It appears that the right ilio-inguinal nerve was found trapped in the scar tissue from the previous repair operation. The nerve was divided, with a significant reduction, though not elimination, of the chronic pain.

50 In the course of the trial, there was some discussion of the risk of a heart attack resulting from an embolus lodging in a coronary artery and causing a myocardial infarct. Dr Bryan Yeo gave evidence that the possibility of such an occurrence was of the order of 0.1%. This he described as a “very, very rare occurrence”: Tcpt, p 247.

51 Less attention appears to have been paid to the level of the other risks which materialised, but Dr David Johnson, a consultant surgeon, described entrapment of the ilio-inguinal nerve during a hernia repair operation as “uncommon but not rare as a complication of this type of surgery”: Report, 23 January 2004, p 12.

52 Dr Johnson also expressed the opinion that “the subsequent haematoma which formed, particularly in the scrotum and around the wounds, was due to slow post-operative bleeding aggravated by the anti-coagulation, particularly the Clexane”.

Findings at trial

53 After considering the evidence of the various medical practitioners and the evidence of the plaintiff, the trial judge concluded that he preferred the evidence of the plaintiff that the defendant did not warn him “of the material risks of gross swelling to testicles, chronic pain or nerve entrapment resulting in chronic pain, internal bleeding requiring drainage nor the risk of an embolism as possible consequences of the bilateral surgery”. His Honour continued at [18]:

“There is no doubt in my mind, on his evidence, that the plaintiff would have attached significance to these risks in making up his mind whether to have surgery. The defendant breached his duty of care he owed the plaintiff. I therefore find the defendant guilty of negligence.”

54 According to well-established principle, referred to by the trial judge, the doctor had a duty to warn the plaintiff of “a material risk inherent in the proposed treatment”: Rogers v Whitaker (1992) 175 CLR 479 at 490. The joint judgment in that case continued:

“… A risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”

55 It is tolerably clear that, in the passage at [18] set out above, the reference to the plaintiff having attached “significance to these risks” is a finding that the risks were indeed material. Whether his Honour was applying the second subjective limb of the principle stated in Whitaker is less clear, but does not matter for present purposes. However, immediately following the passage quoted, his Honour turned to the question of damages. There was no express finding in relation to causation. Accordingly, to the extent that Dr Elbourne complains of a failure to make a finding in this respect, the complaint should be upheld.

56 It may be noted in this context, that the defendant also complained about a failure by his Honour to give reasons as to why the plaintiff, if warned of the material risks, would not have had the operation. (At least, that appears to be the thrust of ground 5 in the amended notice of appeal, although, presumably through inadvertence, the word “not” contained in the original ground has been omitted.) It is perhaps theoretically possible that his Honour made a finding and simply did not record it or give reasons for it. However, generally speaking, that is an unlikely inference to draw from silence. The appropriate inference in the present case is that his Honour either thought it unnecessary to make a separate and independent finding in relation to causation (a matter discussed below), or for some other reason did not address the issue. Once that position is reached, ground 5, complaining of lack of reasons, should be rejected. There is no duty to record a finding which has not been made, or a process of reasoning which has not been adopted. The error of law identified is the failure to address a matter which was required to be addressed in order to reach the particular conclusion.

57 Before turning to causation, it may be noted that the “duty to warn” might more aptly be described as a duty to inform or communicate information, so as to permit the patient to make an informed choice as to whether to undergo a particular treatment or not. Whilst focusing on the fact that the action is brought in negligence and not in trespass, so that the validity of the consent is not in issue, it is nevertheless important to see the identification of material risks in context. Thus, a medical practitioner is required not only to identify the risks involved in a particular treatment or procedure, but also the need for the procedure and the possible risks attendant on a failure to undergo that which the practitioner is recommending. It is only with that knowledge, that the patient can sensibly address the relevance and magnitude of the particular risks.

58 That elaboration is of some importance in the present case, because, as noted below, the doctor gave evidence that a “wait and see policy” was not an appropriate option, and would have been rejected by him as “irresponsible in the extreme”: Tcpt, p 195. There is, however, no indication in the evidence to which the Court was taken that that view was conveyed to the plaintiff. Yet it would have been as material an element of the duty of disclosure as the risks of an adverse outcome.

Causation

59 The correct approach to questions of causation in cases involving alleged breach of a duty of disclosure by a medical practitioner must be identified. To that end, it may be necessary to distinguish from each other cases involving cumulative and alternative causes of a single injury and cases which involve several causes of separate injuries. The present case is not of those kinds, but it shares some attributes in that it may be said that the breach of the duty of disclosure resulted in an increased risk of harm and the harm which materialised fell within the scope of that risk.

60 In Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, Mason P, speaking generally, noted that there was authority in this country, in England and in Canada for “a robust factual approach to causation issues” but not for a “reversal of onus of proof”: at 314F-G. However, as his Honour also noted, Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421 appeared to go further stating that:

“… generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect … it will be taken that the breach of the common law duty caused or materially contributed to the injury.”

61 Commenting on that passage, Mason P suggested at 316E:

“What is less clear is whether her Honour was embracing the idea that in such circumstances the onus shifts to the defendant … or whether she was merely endorsing a legitimate method whereby the trier of fact could validly move from evidence of risk to finding of probable cause of damage.”

At 316G, his Honour accepted the statement that:

“The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.”

In other words, material increase in risk does not involve a necessary finding of causation.

62 Where there are competing alternative causes, or where the aetiology of a disease is uncertain, a “robust approach” to drawing inferences or even a reversal of the onus of proof may have particular justifications. A failure to discharge a duty of disclosure involves somewhat different considerations. It was a breach of that duty which was addressed in Chappel v Hart (1998) 195 CLR 232, a year after the discussion in Bendix.

63 Mrs Hart required throat surgery to remove a pharyngeal pouch. The condition was not merely unpleasant, but progressive. It required surgery and Mrs Hart did not suggest that a warning of the attendant risks would have led her to avoid surgery altogether. Rather, the inference to be drawn from the evidence was that the risk would diminish with the skill and experience of the surgeon and Mrs Hart asserted that, had she been aware of the risk, she would have obtained the services of the best surgeon available. The risk in question was one of infection following perforation of the oesophagus, with consequent loss of her vocal capacity. The question which vexed the Court was whether the failure to warn had a relevant causal connection with the materialisation of the risk. The Court divided in relation to the relevant inference available on the facts. Thus, the majority, comprising Gaudron, Gummow and Kirby JJ in separate judgments relied on evidence that with a more experienced surgeon there would have been a lower risk of the harm. The dissenting judges, McHugh and Hayne JJ, took a different view of the evidence, McHugh J stating at [41]:

“It is also true that the risk of perforation will vary depending upon the degree of care taken on a particular occasion. But the evidence did not suggest, let alone prove, that an operation by the defendant carried with it a statistically significant greater risk of perforation than that of any other qualified surgeon. … The evidence was all one way that perforation of the oesophagus was an inherent risk of the procedure.”

64 To similar effect Hayne J held at [133]:

“There was evidence that if she had been properly advised of the risks to her voice, the respondent would not have had the procedure performed by the appellant, but by another doctor. There was, as I have said, some evidence which suggested that the better the doctor, the less the chance of perforation of the oesophagus. That evidence was, at best, exiguous and stopped far short of identifying any sound basis for assessing what effect the surgeon’s skills may have had on the unusual chain of events which happened in this case.”

65 Those points of departure being noted, it is apparent that all members of the Court (with the exception of Hayne J) appear to have adopted an approach which accepted that a temporal connection between the breach of duty and the harm suffered, being a materialisation of the risk involved in the failure to warn, in the absence of a persuasive contrary explanation, could suffice to establish a relevant causal connection. Thus, at [8], Gaudron J stated:

“The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and end of the inquiry where the breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed in Betts v Whittingslowe (1945) 71 CLR 637 at 649, albeit in relation to a statutory duty, ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.’”

66 The second sentence in this passage, taken in isolation, is unclear: on one view it treats causation as an assumed element, but that may need to be understood in the context of what follows. The “further question” to which her Honour alluded appears to be that set out and answered in the following paragraph [9]:

“Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action.”

67 This latter requirement will, no doubt, be read subject to the caution often given in relation to the weight to be placed upon the evidence, inevitably given with the benefit of hindsight, as to what the patient would have done in the hypothetical event. Although the issue does not arise in this case, it may be noted that, in cases to which the Civil Liability Act 2002 (NSW) applies (this not being such a case) the Court will be deprived of such indisputably relevant evidence by operation of s 5D(3)(b).

68 McHugh J, although in the minority, adopted a similar approach. Thus, at [27], his Honour held:

“Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to the injury occurring.”

69 Further, his Honour stated at [34]:

“The foregoing observations lead me to the following conclusions concerning whether a causal connection exists between a defendant’s failure to warn of a risk of injury and the subsequent suffering of injury by the plaintiff as a result of the risk eventuating: (1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved; … (6) the onus of proving that the failure to warn was causally connected with the plaintiff’s harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of casual connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff.”

70 In Chappel at [68] and [69] Gummow J stated:

“Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.
In those circumstances the task of Dr Chappel was to demonstrate some good reason for denying to Mrs Hart recovery in respect of injuries which she would not have sustained at his hands but for his failure adequately to advise her.”

71 Kirby J set out a number of principles relating to evaluation of causation, not limited to cases of failure to disclose information: at [93]. At sub-par 8 (p 273), his Honour noted the shifting evidentiary onus in the following terms:

“Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages.”

72 Since the decision in Chappel v Hart, in Naxakis v Western General Hospital (1999) 197 CLR 269, Gaudron J, at [31] cited with approval the statement of principle set out above from McHugh J in Chappel at [27]. Kirby J repeated at [76] the principle he had enunciated in Chappel, as set out above, and Callinan J also adopted the statement of principle enunciated by McHugh J in Chappel at [27]. In Rosenberg v Percival (2001) 205 CLR 434 at [88] Gummow J adopted the remarks of McHugh J in Chappel at [34].

73 Despite commentary to the effect that there has been a failure to clarify the correct approach to these questions – see Gunson, “Turbulent Causal Waters: The High Court, Causation and Medical Negligence” (2001) 9 Tort LR 53 – the principles stated by four members of the Court in Chappel v Hart and in particular as explained by McHugh J, now adopted by a majority of the Court, without express dissent, should be treated as the correct statement of the law. That approach was followed by the Full Court of the Supreme Court of South Australia in Zaltron v Raptis [2001] SASC 209 at [90] (Martin J, Doyle CJ and Williams J agreeing; a fact noted again without adverse comment by Gaudron and Kirby JJ in rejecting special leave to appeal: see transcript of proceedings, 19 April 2002, Zaltron v Raptis.

74 Since Chappel v Hart, the High Court has revisited causation in a number of different contexts: see, for example, Kirby J in Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation, Berhad (1999) 196 CLR 161 at [146] (considering the operation of the Hague Rules in relation to carriage of goods by sea); Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [24]-[37] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and [66]-[74] (Kirby J) (considering “for reasons of” in the Refugees Convention); Kenny & Good Pty Ltd v MGICA (1992)Ltd (1999) 199 CLR 413 at [25]-[28] and [26] (Gaudron J) and [107] and [108] (Kirby and Callinan JJ) (liability of valuer for negligent valuation); Henville v Walker (2001) 206 CLR 459 and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at [56] and Travel Compensation Fund v Tambree T/as Tambree and Associates (2005) 80 ALJR 183 at [28]-[32] (Gleeson CJ); [45]-[48] (Gummow and Hayne JJ); [71]-[73] (Kirby J) and [79]-[82] (Callinan J) (claims for damages under the Trade Practices Act); McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at [47]-[53] (Gaudron J), [73] and [74] (Kirby J), [130] (Hayne J), [190]-[197] (Callinan J) and Purvis v New South Wales (2003) 217 CLR 92 at [161]-[166] (McHugh and Kirby JJ), [231]-[236] (Gummow, Hayne and Heydon JJ) (disability discrimination). From these examples, three broad propositions can be derived. First, where there are multiple ‘effective’ causes of an event, of which only one involves a breach of duty, causation may nevertheless be established, so long as the breach of duty makes a “material contribution” to the harm suffered. Secondly, the fact that the breach of duty is a cause in the sense noted, may not be sufficient to establish liability; the degree of connection must satisfy the policy underlying the legal attribution of responsibility. Thirdly, and consequentially, care must be taken to assess causation in its particular statutory or other legal context. Even within general law principles relating to tort, the underlying purpose of the particular assessment must be borne in mind.

75 Where it is demonstrated that a defendant has breached a duty owed to a plaintiff, and harm has followed, it would be understandable that the law might impose an onus on the defendant to show that his or her breach of duty had not caused the harm. However, that course has not been taken and it is clear beyond doubt that the burden of establishing causation lies on the plaintiff. On the other hand, in some circumstances the law has accepted that an inference of causation will arise from the existence of a temporal connection, together with other slender support. Thus where medical science is unable to confirm or deny a causal connection between exposure to a potentially harmful agent and a particular medical condition, courts have been willing to infer on the basis of “common sense” that a connection is established on the balance of probabilities. No such difficulty arose in Betts v Whittingslowe (1945) 71 CLR 637, relied on in Chappel v Hart, being a case involving an industrial accident, where the trial judge had not accepted the evidence of the plaintiff (a 14-year-old boy) as to how the accident occurred and hence there was no direct evidence on that point. Not all members of the High Court thought it necessary to decide how the accident occurred: see Starke J at 644. However, Dixon J did seek to identify the cause in order to determine whether it was caused by a breach of statutory duty. This merely required the identification of the most plausible of a number of hypotheses.

76 In other situations, an available inference involving causation may be more readily accepted where any inconsistent explanation would lie within the knowledge of the defendant, and is not proffered.

77 However, none of these situations is directly analogous of the present case, where causation depends upon a finding as to what the plaintiff would have done had he been given appropriate information. Further, where that assessment requires either a consideration of the subjective state of mind of the plaintiff, or the position which a reasonable person would take, if placed in the same position as the plaintiff, there is no obvious reason to call on the defendant to provide evidence that the plaintiff would have undergone the operation in any event. In fact, the nature of the evidentiary burden placed on the defendant is perhaps explained by the comment in Chappel v Hart (p 273) of Kirby J that it is for the defendant to show “by evidence and argument” that the patient should not recover damages. Further, there is some irony in the fact that the law is willing to assume a causal connection in such circumstances, absent proof to the contrary, but discounts the evidence of the plaintiff, which might provide the most direct support for such an assumption: see Ellis v WallsendDistrict Hospital (1989) 17 NSWLR 553 at 560E-F (Kirby P), 581F (Samuels J) (Meagher JA agreeing) and, generally, Rosenberg v Percival (2001) 205 CLR 434, albeit that the latter was a case in which the High Court upheld the finding of the trial judge rejecting the plaintiff’s explanation as implausible.

78 It is clear, nevertheless, that two propositions flow from Chappel v Hart, relevantly for the present case. The first is that the element of causation must be established and, accordingly, absent agreement between the parties that this issue was not in dispute, the failure of the trial judge to make a finding in this respect demonstrated error. The second proposition is that evidence of a failure to provide information, particularly as to potential risks of the procedure, combined with the materialisation of those risks, is sufficient to establish a prima facie case of causation, which is capable of acceptance in the absence of a more plausible contrary inference.

79 These principles were accepted and applied in circumstances similar to those revealed by this case in Shead v Hooley [2000] NSWCA 362, at [53]-[56]. After reviewing the principles established in Chappel v Hart, Davies AJA (with whom Mason P and Beazley JA agreed) stated at [69]:

“Once it was shown that there was a failure on the part of Dr Shead to warn Ms Hooley of the risk of gastroparesis and that Dr Shead breached his duty of care towards his patient in failing to warn her of the risk, and once it was shown that the risk eventuated, then the law as enunciated in Chappel v Hart is that the breach of the duty should be treated as materially causing or contributing to the injury unless good reason to the contrary is shown. In the present case, no such reason was established. Dr Shead was unable to establish that the risk which Ms Hooley faced would not have been reduced if an adequate warning had been given. There was a possibility, even a probability, that, had a further opinion been obtained, a further gastroscopy would have been performed and the state of the chronic ulcer would or may have appeared different from that shown in the gastroscopies taken by Dr Elliott. It follows the causation was established.”

Reconsideration by this Court or retrial?

80 The next question is whether the omission of the trial judge can be remedied in this Court or whether it requires a retrial. To answer this question it is helpful to identify the matters which may properly be taken into account in determining causation.

81 In a helpful analysis by Thomas Addison, “Negligent Failure to Inform: Developments in the Law since Rogers v Whitaker” (2003) Torts LJ 11 at 165-195, the author identifies a number of factors which have been considered relevant to causation, under the following headings:

(a) the remoteness of the risk;
(b) the patient’s desire for treatment;
(c) previous and later procedures undertaken;
(d) degree of faith in the medical practitioner;
(e) the knowledge of the patient, and
(f) the need for treatment and alternatives available.

82 The issues relating to causation are not limited to the question whether the patient would have undergone the procedure had he or she been adequately warned of the risks. If it be established that the procedure was inevitable, in the sense that, on the probabilities, the patient would have undergone the procedure in any event, once properly advised, there is a further question as to whether the same risks would have arisen, or whether steps might have been taken to reduce them. As noted above, all members of the High Court in Chappel v Hart appear to have accepted that, if the operation would have taken place and the risks been essentially the same, the plaintiff would have failed to establish that the harm was caused by the breach of duty. In Shead v Hooley [2000] NSWCA 362, the President noted the possibility of a delay or a variation in the conditions under which the procedure was undertaken, combined with the need to take account of any continuation or deterioration of the condition which caused the need for the operation, as factors which may well affect the damages recoverable. Those issues do not, however, arise in the present case.

83 One other factor needs to be noted in this context. In the paper referred to above, Addison correctly concluded that the need for treatment and the available alternatives have been dealt with both in terms of causation and in terms of materiality: 11 Torts LJ 177-178 and 192-193. He suggested that they were more properly considered in relation to causation: p 178.

84 Without suggesting that such questions are irrelevant to the materiality of the risk, they will generally have greater relevance in relation to causation. There are conditions which, by the time of diagnosis, may well prove fatal without treatment. On the other hand, the risks and side effects of the treatment may themselves be such that a properly advised plaintiff may reject the treatment despite the prognosis. To describe treatment as “inevitable” may be to pre-empt a value judgment which should properly be made by the patient.

85 This is not an abstract point without relevance to this case. This Court does not have a transcript of the oral submissions, nor the complete written submissions, made to the trial judge. However, from an extract taken from the defendant’s submissions below and consideration of the manner in which the question was argued in this Court, it appears that the lack of other options was primarily presented as a consideration which diminished, if it did not overwhelm, the significance of the risks. It is at least possible that the trial judge was misled into thinking that the issues between the parties focused on materiality of risk, rather than causation.

86 As noted above, the trial judge largely accepted the evidence of the plaintiff, particularly in relation to what warnings were given or not given. Furthermore, although the plaintiff gave evidence that he would not have had the operation if properly informed of the risks, that evidence was not the subject of cross-examination. Similarly, the fact that the plaintiff had previously declined an operation for sinusitis was not explored in any depth in cross-examination. Some attempt was made by counsel for the doctor to question the factors which led the plaintiff to agree to the subsequent remedial operation, but they were objected to and not allowed. No appeal has been brought from that ruling. Although theoretically relevant, it is doubtful whether, in any event, the answers with respect to those quite different circumstances would have been of much assistance to the Court.

87 The doctor argued that what is required is not merely an assessment of the credibility of the plaintiff, but an assessment of his motivations, knowledge, willingness to undergo medical treatment and other matters affecting his character which may not readily be made by this Court. In some circumstances, those factors may be persuasive. However, as will appear from the issues referred to below, the difficulty faced by this Court in making an assessment of the likelihood of the plaintiff declining to undergo the procedure are, in the present case, limited. Given the undesirability of a retrial, if that can be avoided, this is, in my view, an appropriate case for this Court to resolve the outstanding issue of causation.

Findings on causation

88 The evidence establishes a number of objective factors which support the view that, if informed of the risks, the plaintiff would not have had the operation, over and above the weight which may be given to his unchallenged evidence that he would not. First, there is no challenge to his Honour’s findings that the gross swelling of the scrotum and the pain resulting from nerve entrapment were material risks to which the plaintiff would have given significance. It is then necessary to inquire as to what the plaintiff would have put on the other side of the scales in carrying out the hypothetical assessment. The answer depends primarily on what information he was given which indicated that bilateral operations were not merely desirable, but necessary and, importantly, should be undertaken as soon as a place in the operating lists could be found.

89 In his evidence in chief, the plaintiff described the reason which made him think he might have prostate cancer as being a “funny sensation, feeling when I was passing urine down in the right side”: Tcpt, p 33. He also described “a pushing sensation” when he went to the toilet. According to Dr Elbourne, he described his problem as “a burning, dragging sensation in his right groin”, something which he described as a textbook description of a symptomatic hernia: Tcpt, p 183.

90 The plaintiff gave evidence as to what he was told by Dr Elbourne (Tcpt, p 34):

“He said we better repair the hernias. And I pointed out to him that I’d had two plastic valves in the heart … and I was on Warfarin and if I had to have any surgery that I’d have to have antibiotics … and that I bled quite easily.”

91 According to Dr Elbourne, after completing his examination he identified the problem in the following terms (Tcpt, p 186):

“I asked Mr Gibbs to get dressed and resume his seat and I sat down at my desk and I said to him, ‘Mr Gibbs, you have a painful hernia, you need to have it repaired to avoid strangulation. … You also have a hernia on the other side’, which I think was a surprise to him … and I indicated that that also should be repaired at the same time.”

92 It was not put to the plaintiff in cross-examination that Dr Elbourne had explained the urgency or the necessity for the operation in following through the story of the consultation, the cross-examination being quite constrained (Tcpt, pp 68-69):

“Q. Then you got dressed?
A. Yes.
Q. You sat down?
A. Yes.
Q. Dr Elbourne advised you that you had a hernia on the right side and the left?
A. Yes.
Q. He then recommended that you undergo a [herniorraphy]?
A. Yes.
Q. The removal of the hernias from both sides?
A. Yes.
Q. He explained to you that the way in which that surgery was done was that it would be through a small incision on both sides?
A. The small incision on both sides.
…
Q. … Just prior to examining you, you explained to Dr Elbourne that you had a dragging, burning sensation?
A. Yes.
Q. I want to suggest to you that … Dr Elbourne specifically asked you whether you had any problems with passing urine and you denied it?
A. Yes.
Q. I also want to suggest to you that Dr Elbourne specifically asked you whether you had problems with constipation and you denied it?
A. Yes.
Q. You made no complaints to Dr Elbourne about suffering from urine problems when you saw him did you.
A. No.”

93 Neither the plaintiff’s description of his symptoms, whether as described by the doctor or by the plaintiff himself, or the doctor’s indication that the hernias should be repaired, indicated any level of urgency or necessity. Dr Elbourne was cross-examined about his reasons for recommending an operation (Tcpt, p 195):

“A. Now I recommended that Mr Gibbs have his painful right inguinal hernia repaired because there was a serious risk that it could strangulate. Now strangulated hernia is one where the contents of the hernia and the most dangerous for him content would be large or small intestine loops (?). Where they are squeezed with the hernial sac that their blood supply ceases and that segment of bowel becomes gangrenous, dies, disintegrates, and causes him to be profoundly unwell or die. The other reason in this patient that it was important to manage things promptly was that he was anti-coagulated and the risk of leaving his hernia to be dealt with as an emergency was even higher because then the added difficulty of having full anti-coagulation at the time when he presents for an operation that needs to be done within hours is just another difficulty that can be avoided by timely repair.
Q. Did you consider at the time you saw him and formed the view that you’d recommend surgery as semi-urgent … that there was an option for a wait and see policy to see if the hernia progressed?
A. I think that would be irresponsible in the extreme.”

94 It will be necessary to return to the objective circumstances below: however, for present purposes it should be noted that this last evidence was given by way of an explanation for the doctor’s own decision, it not being suggested that this explanation was given to the patient.

95 The plaintiff was asked as to whether the existence of other options might have affected his decision in his evidence in chief (Tcpt, p 40):

“Q. If you’d been told that there are other options to this surgery, one of them is a wait and see approach, that is do nothing at the moment and see what happens, would that have affected your decision?
A. Yes, I would have waited and seen.
Q. Why would you have done that?
A. Because I was in no pain with the hernia that I had. I had no swelling or anything else like that.
His Honour: Q. You were concerned about the possibility of prostate cancer and once that had been alleviated?
A. That was it for me.”

96 As noted above, the plaintiff gave evidence that he did not have surgery for sinusitis because of the difficulty at that time with adjusting his anti-coagulant medication. That, it was clear, was a continuing concern at the time of the hernia repair operations, although he appears to have been reassured as to the alternative medication then available. Nevertheless, both his questions to Dr Elbourne and his evidence as to the earlier operation suggest that he was a man who was concerned about his health, understandably given its long and serious history, and was inclined to ask questions where he knew of possible risks, rather than simply rely upon the unexplained judgment of a professional advisor.

97 All these factors, taken in combination with the unchallenged evidence that he would have deferred surgery, support the conclusion that he would not have gone ahead with the operation had he been given appropriate warnings. Any evidentiary burden borne by the defendant was left unsatisfied. All the subjective factors point in one direction and this Court can be comfortably satisfied as to that element of causation.

98 There remains the question whether the warnings would have led to a different result, in the sense that an adequate discussion of the risks of the proposed procedure would have been accompanied by a full explanation as to the risks of not having the operation and the desirability of proceeding with a degree of urgency. In this respect, Dr Elbourne’s judgment was supported by the evidence of Dr Johnson to the following effect, set out by the trial judge at [10]:

“While in the short term it might have been prudent for Dr Elbourne to defer surgery and wait and see if the plaintiff suffered any complications of his bilateral inguinal herniae, this ran the risk of the plaintiff re-presenting at some time in the future with the serious complications of hernia obstruction or in particular, strangulation involving bowel, in both instances requiring urgent surgery where the management of the plaintiff’s anti-coagulation state and cardiac status would be much more difficult. …
In my view this was an ideal time to deal with the herniae and both herniae could be repaired at the same time, otherwise a second hernia operation would require further manipulation of anti-coagulant medication with further risk. It must be appreciated that patients with prosthetic heart valves, particularly of the mitral prosthesis, are at risk from complications of bleeding or embolism even though they have had excellent anti-coagulation control.”

99 As his Honour also noted, there was a contrary view expressed by Dr Raymond Hollings, a general surgeon called for the plaintiff. After noting the discovery of the hernias, Dr Hollings stated, in a passage also set out by the trial judge:

“In my opinion it was not necessary for Mr Gibbs to undergo the surgery at the time he did. Apart from the mild sensations occurring while he was passing urine, the hernias were virtually asymptomatic. Mr Gibbs had a very complex past history requiring permanent anti-coagulation … . These factors should have led to very serious consideration regarding the indications for surgery.”

Dr Hollings also stated:

“I believe that a policy of conservative management would have been reasonable in respect of his hernias once Mr Gibbs had been reassured that he did not have any significant urinary problems. On the balance of probabilities he may well have remained unaware of hernias for some time. I believe that his co-morbidity would strongly indicate that any surgical procedure would have been optimally performed at Royal Prince Alfred Hospital where he had undergone previous major surgery. The further advantage of having surgery at Royal Prince Alfred Hospital was the fact that his cardiologist, who had attended him over many years was available to the manage the cardiac situation and also monitor his anti-coagulation program.”

100 Dr Hollings was cross-examined to suggest that the plaintiff was not “a high risk patient” when he saw Dr Elbourne. He explained, but did not resile from that description: Tcpt, pp 110-111. Much of the cross-examination of Dr Hollings was directed to his assessment of the risks associated with the plaintiff’s cardiac condition. At the end, counsel queried his description of the hernias as “virtually asymptomatic”: Tcpt, p 124. At p 126, he was asked whether, in the circumstances faced by Dr Elbourne, “it was prudent” for Dr Elbourne to advise the plaintiff to undergo surgery. He replied:

“Your Honour I think it was an option to recommend surgery. I think that there were alternatives which the patient may or may not have accepted, but certainly the traditional methods of dealing with hernias is to repair them. This has to be taken into account and balanced against all the other benefits that might be achieved by the surgery and the risks that the surgery produces. The risk of strangulation I have already alluded to. It is very difficulty to quantify … .”

101 The cross-examination of Dr Hollings on this point was somewhat restricted by the view accepted by the trial judge that, there being no challenge to the competence of the operation itself, some matters were no longer relevant. Again, however, there is no challenge to the approach taken by his Honour in that regard. The cross-examination did not diminish the effect of Dr Hollings’ views.

102 The trial judge held, at [11], after referring to the evidence of the defendant, Dr Johnson and Dr Hollings:

“On the balance it seems to me that the defendant, as the examining doctor and surgeon was in the best position to assess the necessity for surgery and its timing.”

103 Accepting that finding in its terms, it did not follow that, had the plaintiff been properly warned and given adequate information as to the need for the operation, he would not have sought a further opinion. Given the risks acknowledged by both Dr Johnson and Dr Hollings, it is probable that a second opinion would have revealed the availability of alternative courses, such as that proposed by Dr Hollings. Such a view obtains further support from the fact that, when a repair operation became the realistic option for dealing with the chronic pain, the plaintiff went to Royal North Shore Hospital, rather than relying upon the Bathurst Base Hospital.

104 In my view it cannot be said that the defendant has shown that there would have been no reduction of risk had the relevant warnings been given. On balance, the evidence suggests the contrary. Indeed, even the first part of Dr Johnson’s statement provides express support for a conservative approach in the short term.

105 For these reasons, although the trial judge made no finding in relation to causation, the prima facie case which follows from the application of Chappel v Hart has not been displaced by the defendant. Indeed, the evidence supports an affirmative finding in favour of the plaintiff. The evidence relied upon above does not depend to any significant extent on an assessment of the witnesses who appeared at trial, nor to any significant degree on the personal characteristics of the plaintiff. This Court should therefore conclude that causation was established and there is no need to remit the matter for further hearing.

Treatment of risk of embolism

106 Because it was accepted by the Appellant that the failure to warn as to any material risk would, if causation were established, permit the appeal to be dismissed, it is not necessary to deal with the complaints made by the Appellant in relation to his Honour’s finding that the risk of an embolism was a material risk in all the circumstances.

Conclusions

107 The appeal should be dismissed with costs.

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