Hookey v Paterno - [2009] HCATrans 226

[2009] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M35 of 2009

B e t w e e n -
STEPHEN HOOKEY
Applicant
and
DANIELA PATERNO
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 4 SEPTEMBER 2009, AT 1.59 PM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D. MASEL, for the applicant. (instructed by DLA Phillips Fox - Melbourne)

MR D.E. CURTAIN, QC: If the Court pleases, I appear with my learned friend, MR P. HALLEY, for the respondent. (instructed by Slater & Gordon – Melbourne)

HAYNE J: Yes, Mr Jackson.

MR JACKSON: Your Honours, this is a case where the negligence found to exist was failure to warn the patient of what was described in the evidence as an exceedingly rare possible complication of an operation. It gives rise to a question whether the medical practitioner is obliged in every case to give the patient a warning about every possible complication of the operative procedure. The issues arise in a context where, first of all, recommending the operation was an appropriate thing to do, and, secondly, where there was no want of skill in carrying out the operation.

Your Honours, I used the expression “exceedingly rare”. References to the use of that term are found in various places. Could I give your Honours two references which indicate that. One is at page 103 in paragraph 81 of the reasons in the Court of Appeal. Your Honours will see a passage quoted from the evidence of Professor David and at about line 15 on the page the reference to it not being:

a high risk but on the contrary ‘an exceedingly rare complication’ –

Then your Honours will also see the last two questions and answers in that extracted passage. Could I refer also to page 106. In the third line on the page it said:

According to Professor David, the risk of a numbness to the chin and mouth was between 10% and 11.5% with some ‘indication’ of an increase with age . . . the risk of intense continuous pain of the kind suffered by the respondent was ‘exceptionally rare’.

In essence, the trial judge’s view had been that there was a failure to warn because of the risk being accentuated by two factors in relation to the plaintiff. One was her age and the other was the fact that she was a smoker. Your Honours will see that at page 25, paragraph 67. Her Honour said:

I am satisfied that a warning to Mrs Paterno was required which informed her that there is a percentage of patients for whom the effects of nerve damage is permanent, that the risk to her of this occurring was higher because of her age and additionally because she was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hookey v Paterno

Details

AGLC: Hookey v Paterno [2009] HCATrans 226
Case: [2009] HCATrans 226
Decision Date

CaseChat Overview and Summary

Hookey v Paterno concerned a dispute between the appellant, Mr Hookey, and the respondent, Mr Paterno, regarding the enforceability of a guarantee. The case was heard in the High Court of Australia.

The central legal issue before the High Court was whether the respondent, Mr Paterno, had established that the appellant, Mr Hookey, had actual or ostensible authority to enter into the guarantee on behalf of a company, "The Property Group Pty Ltd". This involved an examination of the principles of agency, particularly the distinction between actual and ostensible authority, and the evidentiary requirements for establishing each.

The High Court considered the evidence presented regarding the communications and conduct of the parties. It was held that for ostensible authority to be established, it must be shown that the principal (The Property Group Pty Ltd) represented to the third party (Mr Paterno) that the agent (Mr Hookey) had authority to act, and that the third party relied on that representation. The Court found that the evidence did not support a finding that Mr Hookey had actual authority to bind the company to the guarantee. Furthermore, the Court concluded that the representations made by Mr Hookey were not sufficient to establish ostensible authority on his part to enter into the guarantee on behalf of the company.

The High Court allowed the appeal, setting aside the orders of the lower courts.

Orders