Ellis v The Wallsend District Hospital

[1989] HCATrans 303

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl31 of 1989

B e t w e e n -

MARIE THERESE ELLIS

Applicant

and

THE WALLSEND DISTRICT HOSPITAL

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

McHUGH J

Ellis

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 10. 50 AM

Copyright in the High Court of Australia

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MR A.F. PUCKERIDGE, QC:  If the Court pleases, in this matter I

appear with my learned friend, MR J. HISLOP, for the

applicant. (instructed by T.D. Kelly & Co)

MR B. MURRAY, QC:  If the Court pleases, I appear with my

learned friend, MR P. DWYER, for the respondent.

(instructed by P.J. McGahen, Solicitor for the

Government Insurance Office of New South Wales.

MR PUCKERIDGE: If the Court pleases, the special circumstances which arise out of this matter is a consideration of the relationship of a plaintiff or a patient with the

hospital once the patient has entered the door of the

hospital, and from that also, the relationship of an

honorary medical surgeon qua the hospital when the

patient has been admitted, to some extent, by the

medium of the honorary medical surgeon.

Those special circumstances, it is submitted,

must be weighed against the background of the particular

circumstances of this particular matter in that all judges of the Court of Appeal found that the causal link which the learned trial judge said was absent was,

in fact, present and that in normal circumstances, as

all judges agreed, a new trial would be applicable

because of the error of the trial judge in those

circumstances.

As against that background, there was a divergence

of views as to what would be the success in any event

of a new trial. The majority of the Court of Appeal

judges, Justice Sarrn.iels and Mr Justice Meagher, taking

the view that a new trial would be futile; His Honour

the learned President, Mr Justice Kirby, taking

the view that it would not be futile and it would be

arguable, in the circumstances, (a) as to vicarious
liability of the late Dr Chambers and, (b) as to a
personal or independent non-delegable duty based on

the grounds of KONDIS.

MASON CJ:  Why do you say that the majority in the Court of

Appeal were wrong, in particular, having regard to

their findings as to the relationship between the

Hospital and the honorary surgeon?

MR PUCKERIDGE:  Your Honour, it is submitted that the majority

judges were incorrect in that they did not properly

consider the situation as to the independent liability

of the Hospital. Mr Justice Samuels, at page 192 of

the application book, deals with the fact that it was

a distinct possibility, on the ground of the KONDIS

case - page 192, Your Honours, between point 5 and

point 10:

Accordingly it may be that once the

relationship of hospital and patient is

established it follows, as a matter of law,

that the hospital owes the patient a

non-delegable duty of care.

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BRENNAN J:	But that is speaking, is it not, of a patient who

goes to the hospital first and seeks the plenitude of

the hospital's facilities, in other words, a general

hospital patient?

:t-1R PUCKERIDGE: Well, it is not quite so clear, Your Honour,

as to what that is particularly referring to.

Certainly, His Honour Mr Justice Samuels did adopt

the approach that the non-delegable duty of care as

referred to in CASSIDY's case and in GOLD and ESSEX had

up to that point of time, as again confirmed in

ALBRIGHTON, reached a situation where it was mainly

applicable where it was the person or the patient had

sought out the hospital, to some extent.

BRENNAN J: Well, in this case, given the act which was causative

of negligence or the omission that was causative of
negligence, that occurred before the patient went anywhere

near the Hospital.

:t-1R PUCKERIDGE:  That is true, Your Honour.

BRENNAN J: That was - - -

:t-1R PUCKERIDGE:	Your Honour is referring to the - - -?
BRENNAN J:	- - - failure to warn.

:t-1R PUCKERIDGE: Failure to warn, yes.

BRENNAN J: That is the relevant omission.

:t-1R PUCKERIDGE:  That is one of the real relevant - but that was

the issue in respect of which it was certainly indicated
that the trial judge was in error in finding the

causative link.

BRENNAN J: Well now, if you proceed from that, that was the

failure to warn, and as a result of that failure, she

elected to have an operation.	And as the result of her
election to have an operation she was then given the

admission form and then, and then only, she enters the

Hospital, and the Hospital, as it were, retrospectively acted responsible for - - -

:t-1R PUCKERIDGE:  Yes. She was given, Your Honour, although it

does not appear precisely in the judgment what was

referred to, it was on a Wallsend District Hospital

letterhead. It was referred to as a request for

admission to the Wallsend District Hospital and it was

the letter which was referred to in the judgment which

the late Dr Chambers gave her which she presented to

the Hospital.	The matter which arises, and a fundamental
matter - - -

BRENNAN J: Well, could I just interrupt you again for a

moment.

:t-1R PUCKERIDGE: Certainly.

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BRENNAN J:  If that be right, the only omission which was an

omission for which the Hospital could conceivably be

responsible is an omission to warn after her admission

to Hospital.

MR PUCKERIDGE:  That is correct, Your Honour.

BRENNAN J: Is there any finding of such an omission?

MR PUCKERIDGE:  No. Well, the consent form was actually

signed in the presence of a Sister Baker whilst she
was in the Hospital and the form of that consent

form is set out in page 110 to a very large extent,

Your Honour, and that is the consent form at the top

of the page there, the relevant page which was relied

upon by the applicant/appellant in the Court of Appeal.

At the bottom of that consent form, that was:

"To render professional services to patients

according to their need, give such systematic

instruction and training as required by the

Board ... and conduct ..... ".

And Your Honour, it included, as indicated at the

bottom of page 110, the statement:

"I understand that an assurance has not been

given that the operation will be performed

by a particular surgeon."

That consent form with that undertaking was signed in the Hospital once the patient had entered the Hospital

and that is the matter which was particularly relied

upon and is referred to in the notice of appeal as

raising clearly circumstances and matters of facts

which the plaintiff would, in the event of a new trial,

be clearly entitled to rely as a circumstance under

which the non-delegable duty would arise. It points,

and what the applicant points to, is that that form

of consent signed in the presence of a sister in the

Hospital does point to an undertaking, as referred to

in KONDIS's case, assumed by the Hospital to take care

of the plaintiff and the patient in these particular

circumstances. A consent form is - - -

BRENNAN J: There is no difficulty about the care that was

taken. It is all about whether she consented to the

operation, is it not?

MR PUCKERIDGE:	Yes.
BRENNAN J:	And that is a pretty slender reed on which to base

the finding that the Hospital failed to give what was

needed as a warning after the doctor had consulted with

the patient, advised the patient and as a result of that

advice, the patient entered - - -

MR PUCKERIDGE: Well, the doctor had consulted with the patient

but, of course, had not advised her as to, (a) the risk

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or even, (b) the area of the operative actual locus

nor had the doctor advised the applicant of that even

on request that had been made by the applicant and

that, of course, was	a matter of considerable
importance.

McHUGH J:  Can I just ask you about a matter? The action

against the estate of Dr Chambers has been settled,

has it?

MR PUCKERIDGE:  Yes, Your Honour.

McHUGH J: Well, would not the Hospital and Dr Chambers be

joint tortfeasors and would not the settlement of

that action release the Hospital?

MR PUCKERIDGE:  No, Your Honour, not in the terms that were

adopted. What actually happened was that it was

settled on the basis of a payment and a stay of the

proceedings as against the estate. In accordance

with a matter in the Court of Appeal in England,

Your Honour, I think it was GARDINER V MOORE, where

a similar approach was adopted, that rather than an

actual judgment, there was an agreement to pay a

certain amount and a stay of the proceedings as against

the estate.

BRENNAN J: It was thought that does not amount to

a release?

MR PUCKERIDGE:  Your Honour, the matter was never ever taken

any further, Your Honour. It was accepted. The

terms of settlement were, in fact, duly disclosed to
the court and in the terms of settlement as

drafted it was certainly hoped that it would never

ever amount to a release and no point was taken in

that regard.

MASON CJ:  You may find the point is going to be taken now.

MR PUCKERIDGE: It may well be, Your Honour. Certainly. the

terms - those terms are not before the Court as at the

present stage .. , but we could certainly obtain those

terms, Your Honour, and have - - -

MASON CJ: It may not be necessary to do that, Mr Puckeridge.

MR PUCKERIDGE: But, Your Honour, those special circumstances,

it is submitted on behalf of the applicant, certainly

raise matters of importance, it is submitted.	The
learned President put the issue - - -

MASON CJ:  It may be that they raise matters of importance

in a general context but the question is what are your

prospects of success in overcoming the decision of

the Court of Appeal? You have explained to us how it

is that you attack the Court of Appeal judgment.

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MR PUCKERIDGE:  Your Honour, whilst accepting that at all

stages this case has presented difficulties in respect
of which success could never at any stage be said to
be guaranteed, the arguability of the very matters
does raise matters of importance in that, as indicated
by His Honour the learned President in KONDIS, there

by the learned President of the decision in KONDIS.

is and has been,and by that intermediate Court of

Whilst Mr Justice Samuels referred to the fact, that

matter has, in fact - that is KONDIS - been read

down with the qualification or the instance by

Mr Justice Samuels that honorary medical practitioners

or honorary medical surgeons in this particular case could not be said to be included in the ambit of the

non-delegable duty as referred to in GOLD. That is

a matter, Your Honour, and that divergence of approach

by the Court of Appeal in relation to this matter of

public importance and the development of the law in

this regard, it would be submitted, Your Honours,

is of significance and would require a special leave -

MASON CJ:  But having regard to the findings of fact made by

case gives rise to a question of general principle?

the Court of Appeal as to the relationship between the

MR PUCKERIDGE:  Your Honour, there has, in fact - well, excuse

the pun - there has, indeed, been no real findings of fact by the Court of Appeal in this regard. What the

Court of Appeal has done, what His Honour

the learned President first. indicated was that if

you look at the facts there are sufficient facts there

upon which findings could be made in favour of the

plaintiff if a new trial was to be granted. What the

majority of the judges of the Court of Appeal have
said is that even if there was sufficient facts,

nevertheless, as a matter of law, the plaintiff

would not be entitled to succeed on the bases upon
which the claim has been brought.

no actual findings of fact by the Court of Appeal. So, there has been

The Court of Appeal, Your Honours, has merely

indicated, certainly so far as the majority judges
are concerned, that they would think that a new trial

would be futile. The learned President has indicated

that he did not think it was futile and that the error

that was made by the trial judge was of sufficient

weight and seriousness in the circumstances that with

those circumstances available for finding on a new

trial, a new trial should be granted.

McHUGH J: Well, that was because the President thought the

Hospital was (a) responsible for Dr Chambers' negligence and

(b) that it had independently undertaken to exercise

reasonable care and that Dr Chambers was acting on its

behalf.

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MR PUCKERIDGE:  Not that he thought that there were sufficient

circumstances in the case upon which that argument could

be raised and if the matter, of course, was to go to a

new trial in front of a jury, I mean, clearly these

matters, it is submitted, would be of importance in
directing the jury as to what the specific law would be

in this regard.

MASON CJ:  Yes? Is that all you wish to put to us?

MR PUCKERIDGE: Unless Your Honour has anything further to

put in that regard. It is within a short complex now

in this regard.

MASON CJ: Yes, it is.

MR PUCKERIDGE: If the Court pleases.

MASON CJ:  The Court need not trouble you, Mr Murray.

The Court is of opinion that there is not sufficient

doubt about the correctness of the decision of the

Court of Appeal to warrant the grant of special leave to appeal in this case. The application is therefore refused.

MR MURRAY:  I seek an order for costs?

MASON CJ: Yes. You do not resist that, do you, Mr Puckeridge?

MR PUCKERIDGE:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.06 AM THE MATTER WAS ADJOURNED SINE DIE

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