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

Copyright in the High Court of Australia

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 a smoker, and that although usually nerve damage from this operation resulted in numbness or similar change in sensation, nerves can always react by causing pain.

The Court of Appeal held that the primary judge was in error in relation to both the smoking and age factors.  Your Honours will see that at page 111, paragraph 102.  The first three lines summarise matters.  They say that the increased risk was hardly significant.  You will see also in the fourth line from the bottom of the page that:

the objective evidence that the risk of mal‑union (even with the increase in risk the consequence of age and smoking) was a very rare complication ‑

The Court of Appeal, although it discounted the effect of age and smoking, which had been factors in the primary judge’s reasons, yet held that there was a need to warn, and the reasons for doing so appear at page 114, paragraph 110.  If I could move from that to paragraph 113, your Honours will see that the Court of Appeal then proceeds to quote, or the majority then proceed to quote a passage from what was said by the primary judge.  What she said was:

that there was a high risk of her being left with permanent nerve damage as a result of the second operation.

Their Honours then quote a second part from her judgment saying there should have been:

a warning to Mrs Paterno…which informed her that there is a percentage of patients for whom the effects of nerve damage is permanent [sic], that the risk . . . was higher because of her age ‑

and so on.  The rest of the passage I have already read out.  Could we just say about that that there are some difficulties, in our submission, with that.  The first, your Honours, is that whilst there might have been a higher risk in the sense of 10 per cent or something of that kind in the case of nerve damage – but speaking of that as being damage resulting in numbness – there was not a high risk of this form of nerve damage at all, rather the reverse.  The second thing was that the trial judge’s view was based significantly on age and smoking.

When one comes to the Court of Appeal’s own view – I think I gave your Honours a wrong reference before – one sees paragraph 116 on a page with the same number – that appears to have been based on the need to warn of a rare possibility.  Your Honours will see the reference to “rare possibility” or “outside chance” at the bottom of page 116.  Your Honours, it was not sufficient to indicate the normal consequences and normal possibilities that would arise from it.  So it sets the barrier, if I may say so with respect, very high and at the same time it does not seem to be consonant with the views adopted by the Court of Appeal.

As your Honours will have seen in relation to warnings, if one looks at the application book at page 206, in our written submissions what we note in footnote 2 on that page is that the Court of Appeal appeared to accept the approach of Professor Jones to matters and your Honours will see the references that we have given there.  I do not think I need to take your Honours to them.  If your Honours go to the evidence given by Professor Jones on warning where he set out the warnings that he would give in a case like this, he says nothing about warning of a risk of this kind. 

Your Honours will see his evidence about the warning he would have given recited by Justice Neave in her reasons at page 160, paragraph 273.  I will not go through it in detail.  He refers to numbness but it does not go to anything of this kind.

To put it shortly, your Honours, we would submit two things about it.  First of all, the Court of Appeal has set the standard too high but, secondly, its approach to the issue is also unsatisfactory.  If it be the case that the current law would be thought to require that there be warning given of any possible result of an operation which might be adverse, no matter how rare it might be, then in our submission that – I used the expression before – raises the barrier too high, but the current law ought to be reconsidered.  Your Honours, those are our submissions.

HEYDON J:   Mr Jackson, how would you distinguish between the risks ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour.  I could neither see nor hear your Honour, with respect.  I have to say I was very conscious of your Honour’s presence, although I would not say like an elephant in the room.

HEYDON J:   How do you distinguish between the relatively high risks which there is a duty to warn against and the remote risks that your contention is there is no duty to warn in relation to?  What is the legal test?

MR JACKSON:   Your Honour, we would have to accept that there are elements of, if one comes to it, elements of fact and degree.  But what we would say is that there is a duty to warn of risks which, although rare, occur – and I appreciate that carries with it some question of degree and further explanation - relatively frequently.  If one had to put a figure on it, one might say 10 per cent, for example.  But we would say there is a difference when one comes to complications or results of operations which are in an area where they occur very, very infrequently and albeit that they are a possible consequence.  I do not know that I can put it in terms of a legal principle which does not carry with it some element of fact and degree.

HEYDON J:   Thank you.

HAYNE J:   Where, Mr Jackson, do we most conveniently see in the reasoning of the Court of Appeal the commission of the error that you assign?

MR JACKSON:   Your Honour, I referred your Honours a moment ago to page 116 and paragraph 116 in the first place.

HAYNE J:   Does it lie between 113 and 116, if it lies at all?

MR JACKSON:   Yes, your Honour.

HAYNE J:   What do we make of paragraph 114?

MR JACKSON:   Paragraph 114, your Honour, is a paragraph which, in our submission, with respect, assists in demonstrating that the approach taken by the Court of Appeal in the particular case was erroneous.  What I mean by that is that if one looks at the part extracted at paragraph 113 from the primary judge’s reasons, what your Honours will see is that she was speaking of a warning that ought to be given in relation to permanent nerve damage.  Your Honours will see also that there was a reference in what she said to there being a high risk of nerve damage.

The matter of which we complain is that the particular nerve damage that was the subject of the case was not one in respect of which there was a high risk of nerve damage but it was a condition that was very rare.  Your Honours, when one goes from there to paragraph 114 what you see is that whilst there might be nerve damage, of which there was a high risk of occurrence, at the same time the particular condition was one that was itself exceedingly rare and the Court of Appeal appears to go on from the high risk generalised case of nerve damage then to the particular in 115 and 116.

HAYNE J:   The Court will adjourn for a time to consider the course it will take in this matter.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.15 PM:

HAYNE J:   We will not trouble you, Mr Curtain.

The decisions in the courts below depended upon the application of established principle to the particular facts and circumstances of the case.  We are not persuaded that any point of general principle would conveniently fall for consideration if special leave to appeal to this Court were to be granted. 

There are not sufficient prospects of an appeal succeeding to warrant a grant of special leave to appeal.  Special leave accordingly must be refused and must be refused with costs.

The Court will adjourn to reconstitute.

AT 2.16 PM THE MATTER WAS CONCLUDED