Hookey v Paterno

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3735 of 2007

STEPHEN HOOKEY
STEPHEN HOOKEY	Appellant
v
DANIELA PATERNO	Respondent

---

JUDGES:	NETTLE, REDLICH and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 September 2008
DATE OF JUDGMENT:	19 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 48

---

NEGLIGENCE – Medical negligence – Whether negligent for maxillofacial surgeon to recommend orthognathic surgery for correction of Class II malocclusion in 49 year old female smoker – Whether duty to warn of risk of adverse effect of proposed surgery – Surgery performed with due care – Risk materialised – Physical injury – Whether patient would have undergone surgery if warned of risk – Whether causal connection between failure to warn and physical injury – Damages – Whether award for general damages manifestly excessive – Whether sufficient allowance for possibility of improvement in patient’s condition.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Ruskin QC with Mr D Masel	DLA Phillips Fox
For the Respondent	Mr D E Curtain QC with Mr P B Halley	Slater & Gordon

NETTLE JA
REDLICH JA:

This is an appeal from a judgment given in the County Court following a trial before judge alone. The respondent’s claim was for damages for injury allegedly suffered as a result of medical negligence on the part of the appellant, a dental practitioner specialising in oral and maxillofacial surgery. The respondent’s case as pleaded was that the appellant had negligently and in breach of agreement:

(a)advised her to undergo inappropriate treatment involving maxillofacial surgery to correct a malocclusion in circumstances where, it was said, he ought to have recommended dental treatment without surgical intervention;
(b)failed to warn her of high risks of complications of non-union of bone and nerve damage associated with the surgical component of the treatment plan; and
(c)carried out a surgical procedure on or about 8 July 1998 without due skill and care;

and thereby caused injury, loss and damage.

At trial, the allegation that the surgery was not performed with reasonable skill and care was abandoned. The judge held, however, that the appellant had:

(a)negligently advised an inappropriate treatment plan; and
(b)negligently failed to adequately warn the respondent of risks;

and that the respondent’s injury, loss and damage was caused by those breaches and negligence. Damages were assessed at $1,057,833.00 (exclusive of interest).

In this appeal, the appellant:

(a)challenges the judge’s findings concerning the appropriateness of the treatment plan (grounds of appeal 1 – 3 and 10);
(b)challenges her Honour’s findings concerning the warnings that ought to have been given and that the failure to give such warnings was a cause of injury, loss and damage (grounds 4 – 9); and
(c)challenges the damages awarded by the judge and, in particular, -
i.the general damages awarded, which he contends are manifestly excessive; and
ii.the damages awarded for future medical and like expenses, including attendant care and home help, which he contends fail to make a sufficient allowance for the vicissitudes of the improvement of the respondent’s condition (grounds 13 and 14). [1]
[1]Grounds 11, 12 and 15 were not pursued.

The facts

The respondent plaintiff was born on 14 October 1949. Apart from the consequences of her malocclusion, she was in good health although she was at all relevant times a smoker who smoked 20 cigarettes a day. By 1996 she had developed a significant unusual Class 2 Division 2 malocclusion (‘a 2-2 malocclusion’), which is a category of malocclusion arising from and defined by a molar relationship and an anterior tooth - incisor relationship. In effect, the lower jaw fails to grow forward to match the upper jaw with the result that the lower teeth (instead of aligning with the upper teeth) move towards the palate and the upper teeth are tipped backwards. It causes a deep bite, often referred to as a ‘scissor bite’, because of the overlap. The respondent had hallmark 2-2 features such as a reduced lower third anterior facial height and square facial form but her 2-2 malocclusion was unusual due to the presence of a large ‘overjet’ caused by entrapment of the lower lip and she had missing molars on the lower left jaw. When a 2-2 malocclusion is unusual and there are missing posterior teeth, the bite can get progressively worse and move superiorly upwards.

By late 1996, she was having difficulty eating and chewing, she had a sinus type pain, and she was dribbling a lot and had cracks or redness at the corners of her lips that would not seem to go away. In evidence in chief, she said that her problems were of little significance but, in cross-examination, she said that the pain was annoying her. She said her teeth ‘seem not to be able to coincide together … when I tried to bite it did not come together’ and there was extra effort in chewing which seemed to cause pain because she had to try to pull her mouth to eat properly. She also said that there was an ache – persistent pain in the teeth - that was troublesome, and that it felt like some sort of dental problem, and that there was redness and a problem of bite.[2] She consulted a GP, who prescribed antibiotic lozenges and cream, but she found that they did not solve the redness problem.
[2]As depicted in photographs taken by Dr Schwartz.

In early 1997, she consulted a general practitioner dentist, Dr Romano (who was also a friend). Upon examination, Dr Romano noted that the respondent presented with facial pain and angular cheilitis (a persistent infection that is the result of cracks developing at the angle of the lips and the accumulation of saliva).[3] He suspected her teeth were the cause of the problems and he obtained x-rays and concluded that her overbite had worsened. He outlined to her possible treatment plans, such as a combined surgical/orthodontic solution, and referred her to an orthodontist, Dr Robert Schwartz.[4]
[3]Evidence of Mr Carlisle.
[4]Letter of referral from Dr Romano to Dr Schwartz of 14 September 1997.

Following consultation with the respondent, and after further diagnostic studies, Dr Schwartz reported to Dr Romano that, in his view, the respondent’s condition would best be treated by a combination of orthodontic treatment and surgery, and that he had referred the respondent to the appellant in relation to his proposed combined treatment plan. Among other things, Dr Schwartz wrote this:

Anteriorly, the overjet measures 7 mm, while the overjet is also exaggerated (6-7 mm or 90%) and traumatic on the palatal mucosa. Both dental midlines are non-coincident relative to the facial midline with the upper deviated to the right by 1-2mm and the lower positioned to the left by a similar amount.
Analysis of the lateral cephalogram confirms a moderate Class II skeletal base (ANB 7˚) and moderate brachyfacial, or horizontal, growthy pattern…

Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved.
The simplest plan would be to retract the upper incisors without lower arch treatment (i.e. maintaining the increased overbite and Class II occlusion). This would leave Daniela with a reduced overjet of 3-4 mm – far less than ideal - and would require extraction of upper premolars. However, the resultant poor facial aesthetics (increased naso-labial angle and retruded upper lip) precludes this treatment plan as a feasible alternative.
An ideal treatment plan would involve a combined orthodontic – orthognathic surgery approach to advance the mandible, expand the maxilla (via orthodontics alone or surgically-assisted) and increase the lower anterior facial height. Posterior implants in the third quadrant would facilitate orthodontic de-compensation and would provide Daniela with a full functional occlusion (incorporating crown & bridge-work) post-treatment.
Daniela is happy to explore a surgical treatment plan, including implants, and I have taken the liberty of referring her to Mr. Stephen Hookey. I will await his report prior to finalising a surgically-assisted treatment plan …[5]
[5]Letter from Dr Schultz to Dr Romano of 14 March 1997.

The consultation of 4 April 1997

On 4 April 1997, the respondent together with Dr Romano attended the appellant in his rooms. The appellant examined the respondent and advocated a treatment plan of five stages, which he subsequently confirmed in a letter dated 4 April 1997 to Dr Schwartz (which he copied to Dr Romano). Among other things he wrote:

Thank you for asking me to see Daniela who I saw today with Guido Romano with regards to her potential jaw correction.
It appears quite complicated and involved although I felt Daniela had quite a good grasp as to what the likely treatment scenarios may well be.
…
… I have discussed with Daniela the ideal sequence of events and have asked her to consider this prior to discussing it further with yourself:
(1) Surgically assisted maxillary expansion.
(2) Fixed orthodontic therapy to level and align both arches.
(3)Mandibular advancement surgery to create a Class I skeletal and dental situation.

(4) Post-surgical orthodontics and retention phase therapy.
(5)Full prosthetic work-up with implant placement. I would suggest a conventional bridgework in the lower right quadrant and three fixtures in the left mandible for a fixed bridge.

I believe this treatment would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution.
I look forward to achieving a good result for Daniela and have asked her to get back to yourself and Guido with her final decision …

As the judge recorded in her reasons,[6] there was a dispute as to what the appellant explained and did not explain to the respondent at the first consultation on 4 April 1997, and at subsequent consultations on 1 July 1997, 30 May 1998 and 8 July 1998.
[6]Reasons [10].

The respondent’s evidence was that, at the first consultation, the appellant explained and she understood that the proposed treatment plan involved expanding her upper jaw, which the appellant told her had collapsed in, an operation to cut her upper jaw, then expand her upper jaw by an apparatus in the palate that she would have to turn every day, and that there would then be an operation to cut and extend or advance her lower jaw and implant two teeth that were missing on the left hand side. She said that she asked how long this would take, and that the appellant said she would be ready for the Olympics. She added that:

I tried to ask some questions, but you know, I'm just told everything was easy, ‘I've done a lot of operations’.
Did he give you any warnings?---No.
Did he tell you of complications that might arise?---No.

And that:
Now, did he tell you of - just let me go to the - did he tell you of the risk of infection which could cause the treatment to fail?---No he didn't.
Did he tell you of any risk of non-union of bone?---No, I'd never heard of any such thing.
Did he tell you of any risk of permanent loss of sensation?
---No, he told me I might have some swelling and some - you know like I'd be all swollen up and bruised but that would go down and I would be fine.
Did he tell you of any possible permanent or long standing complication?---No.
Had he warned you of any of those matters would you have had this surgery?---No.
Was the problem that you had a significant problem for you?
---No.

The respondent could not recall whether she had asked the appellant any other questions but she said that, after the consultation, she asked Dr Romano on the way out.

The appellant’s evidence[7] was that, at the 4 April 1997 consultation, he began by reading the referral, then met the respondent (and Dr Romano) and, after pleasantries, said words to the effect: ‘You have been referred by Dr Schwartz to talk about your particular problem and I would like to go through that with you’. He stated that he then went through the salient points of Dr Schwartz’ letter with the respondent, examined her and discussed and explained the proposed treatment. He deposed that he told her that as a surgeon he had been asked to consult with her with regard to the potential difficulties that Dr Romano and Dr Schwartz were going to have with the treatment plan in the management[8] of her malocclusion. He recalled that he referred to her missing teeth, and to the desire of Dr Romano to replace those teeth and crown others, and the complexities of having a non-surgical orthodontics only treatment, and to options as they were presented to him. He said that he explained to the respondent that she had an unusual malocclusion, and a problem associated with the vertical height of her face, and that her lower jaw sat back behind her upper teeth and that the problem with her malocclusion was that she had lost vertical height – her lower teeth were impacting on her palate, the space available for replacing missing teeth vertically was not sufficient to make a crown and bridge reconstruction over implants, and that in order to address the problem a surgical option was being sought. He recalled how he had looked for signs of recognition - a nodding of head and eye contact - and he saw that from time to time the respondent looked to Dr Romano for confirmation.
[7]Based partly on his notes, partly on memory and partly upon his practice.
[8]The transcript reads ‘manuscript’, but that is not likely to be correct.

The appellant also said that he explained the three treatment options of do nothing, orthodontics only and combined orthodontics and orthognathic surgery, and that he explained the proposed orthognathic surgery and discussed the risks of complication. In particular, he recalled that he warned the respondent that there was a risk of major ‘catastrophic’ events associated with general anaesthesia (major cardiovascular events, major allergic reactions, significant bleeding, airway obstruction). He stated too that he warned the respondent of local structural issues relating to the nerves and vessels running through the bones and structures – in particular the mandibular branch of the trigeminal nerve, which runs through the jaw bone and supplies the lip, chin and teeth. He deposed that he said to her words to the effect:

‘The main problem we have is the trigeminal nerve’ (which he demonstrated) … in 95 per cent of cases this nerve is injured with the operation … it's a feeling nerve to your lip and chin and you must expect to feel numb in your teeth, in your lip and chin after the operation … this can be frustrating as a sensation. It's not dissimilar to the feeling you have in your foot when you cross your legs and you have pins and needles or tingling or numb feeling in your foot after that time … recovery generally occurs over a 12 month period, and that the recovery phase is not dissimilar to the feeling in your foot as the nerve sensation recovers, but it's over an extended period. One in ten patients will still be numb at the end of 12 months however, and beyond that time we can't expect recovery of significance. … Most people cope with the numbness because it's partial often and they compensate … most people will live with some numbness. … you will expect unpredictable – it would be unpredictable. If numbness is still there in 12 months time it's very difficult to expect full recovery’.

The appellant said that he also told the respondent that the titanium screws and plates can become infected and may need to be removed; and that from time to time a tooth can be damaged and may need follow up root canal treatment or extraction, and that, if Dr Schwartz were unhappy with the respondent’s bite after the surgery, the appellant might need to go back in and perform surgery for a malposition or mal-union of the bone - one in 40 patients may need to have repeat surgery - and that there may be a relapse, where the jaw moves back in the direction that it has come from.

When tested in cross-examination, it appeared that the appellant’s direct recollection of what he had said to the respondent on 4 April 1997 was limited to the words ‘catastrophic’, ‘jaw expansion’ and ‘go away and think about it’, and he accepted that he did not use the words ‘trigeminal nerve’, or the phrase ‘95% of cases’. But it was clear that he had signed off on this treatment card (such signing- off being a single character akin to ‘7’ or ‘the sign of Zorro’) which he said signified that he had completed his obligations, including advice of risks and complications associated with the treatment.

It was common ground that the appellant did not warn of the risk of non-union (which he said was a very rare complication); or of the risk of unremitting pain (which he said was a very rare complication), and that, at the end of the consultation on 4 April 1997, he said that he would send quotations for his parts of the treatment, and that the respondent should ‘think about it’ and discuss any queries with Drs Romano and Schwartz.

Implementation of the treatment plan

On 8, 15 and 30 May 1997, the respondent attended Dr Shwartz, who put in place the first phase of the treatment plan: separators, banding and a maxillary expansion device.

On 11 July 1997, the respondent consulted the appellant again and he once again discussed with her the treatment to be performed under the treatment plan. The respondent said nothing of that consultation in her evidence in chief but agreed in cross-examination that it had occurred. There was a dispute between the parties as to precisely what was discussed during that consultation. Broadly, each party claimed that the same matters each had said were discussed at the consultation on 4 April 1997 were again discussed. The appellant did not, however, sign off his treatment card to the effect that warnings were given on 11 July 1997.

On 16 July 1997, the appellant performed surgery on the respondent’s upper jaw. The respondent said she had some pain in the few weeks afterwards because the upper jaw was being extended so much. She then underwent an orthodontic programme of expansion of the teeth of her upper jaw. She adjusted the expansion device each day, which caused her pain, and she went to her local doctor at least once for pain relief. Her post-operative recovery was otherwise uneventful. The appellant’s evidence was that he saw the respondent on a number of occasions post-operatively.

Consultations prior to the second operation

On 30 May 1998 and 8 July 1998, the respondent consulted the appellant preparatory to the second operation, which was to lengthen the lower jaw. There was a dispute at trial as to precisely what was discussed during the course of those consultations. The respondent gave evidence in chief about that as follows:

In May of 98 or July 1998 when Mr Hookey's notes record that you saw him did he give you any advice on complications or risks of the surgery that he was proposing?---No.
Did you understand your jaw was to be cut?---Yes.
Did you understand that plates were to be inserted into it?
---Yes.
Was there any advice to you about the risks of non union of your jaw?---No.
Infection?---No.
Recurrent or persistent pain?---No.
Or loss of sensation?---No.

In cross-examination, however, the respondent conceded that on 30 May 1998, the appellant had discussed the next phase of the treatment which her, which involved a lengthening of the lower jaw. She also agreed that he examined her and spent some time (she could not recall how long) discussing the surgery to be performed on her lower jaw, and that he explained what he was going to do. She could not recall if he saw her again before the date of the surgery.

The appellant’s evidence was that he examined the respondent on 30 May 1998 and found satisfactory de-compensation (positioning of the teeth with braces) as a result of the surgery and orthodontic treatment of the upper jaw. He said that he explained and demonstrated the lower jaw surgery that he was to perform. He ordered radiographs and arranged further review prior to surgery. He again explained that the operation involved separating the vertical from the horizontal part of the jaw bone, sliding the jaw forward with bone touching bone and applying screws and plates to the side of the bone. He said that he explained too that, in the area where there were no teeth, the split can be difficult and the forces more demanding on the jaw, and it was his view that two plates may be needed. He said that he told the respondent that, if the fracture (osteotomy) were not straightforward, he may need to pierce the skin and place extra fixation.

The appellant deposed that he was confident that he had discussed the risks or complications of the proposed surgery at the consultation on 30 May 1998 or 8 July 1998 or both, but that he had no direct recollection of giving warnings on 30 May 1998 or on 8 July 1998. He said, however, that the second consultation, which was in his Collins Street rooms, was the more significant. His recollection was that on that occasion he reiterated that no operation is without risk or complications and he reminded the respondent that when she woke from the surgery she would be bruised, swollen and numb, and that there were things that could linger beyond a certain time; there was a risk of local problems that may require further surgery; and the risk of numbness in particular. He said that by demonstration on a skull and on his own face he explained the operation and the area where the titanium screws and plates would be placed, and pointed to areas such as the nerve traversing the bone cuts and the adjacent teeth. He said he explained and demonstrated that the nerve is in the segment with the teeth and will move forward with the jaw, and he referred to complications related to the nerve which supplies feeling to the lip and chin. He said that he told the respondent that nerve damage was expected in 95 per cent of patients[9] and that she would wake up bruised, swollen and numb. He said that he told her that the numbness was a complication of the manipulation or the movement of the nerve, and was likely to persist for some months, and there was a one in ten chance of having lingering numbness beyond 12 months. He added that anaesthetic and operative bleeding issues were also discussed. He said that he told the respondent that the surgery was to endeavour to achieve the bite that Dr Schwartz had prepared for, and that if there were a relapse or problems of healing there may be a need to reoperate. He said that the respondent did not ask any questions on 30 May 1998 or 8 July 1998 that he could recall.
[9]Although he said that he did not use the expression ‘95 per cent of patients’.

The second operation

On 16 July 1998, the appellant performed mandibular advancement surgery (sagittal split osteotomy) on the respondent. There was a dispute at trial as to the details of the respondent’s recovery from that surgery. The respondent stated that she had been in burning, unremitting pain ever since the surgery. She spoke of the onset of the burning pain in the right lower jaw immediately after the operation and said that it never resolved. She deposed that the anaesthetist came to see her a few times after the operation because there was no way of controlling the pain, especially on the right side, which was ‘unbelievable’. It was ‘burning pain, terrible burning pain which has remained with me which goes redder here on my right side when it - as it gets worse.’ Asked if the pain stayed the same, got better or got worse, she said ‘[I]t never got better’. She deposed that, between July and December 1998, she continued to have the burning pain all the time. She said the burning pain continued in January 1999. Her case was that she had suffered burning, unremitting pain from the time of the operation, and that the pain continued and was the cause of need for opiates (which in turn caused many of her ongoing difficulties).

The appellant’s evidence was that after the initial post-operative phase, the respondent was progressing reasonably well but with ongoing symptoms of swelling and numbness, and only later complained of pain. In cross-examination, however, the appellant accepted that the respondent was taking Mersyndol Forte for pain and had been admitted to Freemason’s Hospital for pain prior to consultation with him in August 1998, and he conceded that: ‘I think that the magnitude of pain and the significance to her was something I did not pick up on’.

On 17 December 1998, the appellant removed the titanium plates. At that point he was of the opinion that the respondent’s continuing pain was probably caused by infection. By mid January 1999, however, he started to suspect a problem concerning bony union and thus referred the respondent to a physician, Dr Jacobivitz, who excluded the possibility of an underlying disease, and to the hyperbaric unit at the Alfred Hospital, where the respondent undertook a course of hyperbaric treatment to encourage bony healing, albeit to no avail.

On 3 March 1999, the appellant removed an upper right tooth to relieve pressure on the respondent’s right ramus and, on 30 March 1999, he performed a debridement and curettage of the osteotomy sight and inserted new titanium plates. He noted on that occasion that the inferior alveolar nerves were intact.

The respondent, however, continued to experience pain and the appellant suggested a referral to Dr Jane Tinca at the Barbara Walker Centre for Pain Management for evaluation. The respondent did not attend that clinic.

In October 1999, the appellant referred the respondent to a plastic surgeon, Mr Ian Carlisle, for further management. Mr Carlisle diagnosed mal-union in the body of the mandible region and over eruption of the posterior maxillary segments into the gingival posteriorly. He performed a number of surgical procedures to achieve bony union, and did so, but the results were less than satisfactory. The jaw as he reset it was misaligned and the respondent did not experience any relief from her pain.

In February 2000, Mr Carlisle referred Mrs Paterno to a psychiatrist, Dr Lovirpierre, and he has since treated her with a variety of medication including narcotics. The respondent developed gastrointestinal complications to the narcotic therapy.

The appropriateness of the treatment plan

The appellant gave evidence that he considered the treatment plan was appropriate and as to why it was. Evidence was also given by a number of treating practitioners and other expert witnesses as to the suitability of the treatment plan. In reasoning to the conclusion that the treatment plan was not appropriate, the judge referred to some of that evidence as follows:

16   Mr Hookey stands by his treatment plan for Mrs Paterno as being the optimal treatment for her malocclusion.
17   When asked during his evidence about any other salient features of Mrs Paterno’s presentation, in addition to facial pain and angular cheilitis, Mr Hookey said: ‘The desire of the referring practitioners to restore her dentition and their desire to create a more normal morphology of her jaws’. The plaintiff's counsel point to there being no mention of a desire by the plaintiff for morphological normalisation. They argue that there was a significant gap between the plaintiff's presenting symptoms, and justification for the treatment plan including surgery proposed. This disparity between the technical correction of the malocclusion, and the presenting complaints is also reflected in the letter Mr Hookey wrote recommending the treatment plan which ‘would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution’.
18   In his evidence in chief Mr Hookey said that the relevance of her being a smoker was related to the risks of anaesthetic. He also said that it was relevant as it was his policy not to perform implants on smokers. He agreed in cross-examination that her smoking should have been regarded as relevant to the risk of non-union of bone, but not to an extent that made the surgery unsuitable for her.
19   Supporting the appropriateness of the treatment plan is the evidence of Dr Schwartz, whose referral letter indicated his support for a combined orthognathic/orthodontic treatment approach as the ‘ideal’ one. I note, however, that in his referral letter he stated ‘Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved’. I take that to indicate that there were other options, but it does not reflect whether the availability of other options short of the plans that were proposed as the ‘ideal treatment plan’, but other than one he called ‘the simplest’ plan, were canvassed with the plaintiff. Nevertheless, Dr Schwartz’s evidence still supported the appropriateness of a combined surgical and orthodontic approach, as he had recommended, and for which he provided the orthodontic treatment throughout.
20   Dr Bruce Taylor, an experienced orthodontist, was retained by the defendant’s solicitors to provide an opinion on the appropriateness of the treatment plan, and examined the plaintiff late last year. He said he had ‘no doubt’ that the treatment plan was appropriate and ‘whilst I acknowledge the view other treatment options may have been explored, the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice’. He did not see the plaintiff's age as a contra-indication for this approach and said in his experience of over 20 years in orthodontics, many patients had been treated successfully without complication of greater age than this patient. In cross-examination he agreed that in any area of medicine the recovery rates in older people may not be as great as in younger people, and that smoking and higher age increased the level of risk in orthognathic surgery.
21   Dr Taylor said discussion of options by a dentist may well have included talk about partial dentures and palliative care for the angular cheilitis. He said: ‘The objective of partial dentures would be to add to the biting ability and to open the jaw or widen the opening, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice one would suggest it was really camouflaging the problem, rather than treating the root of the problem, which essentially was the foreshortened lower jaw’. He said treatment with a partial denture is diminishing these days, and bringing the jaw forward would improve the efficacy of a partial denture, even if implants were not to be done to replace the missing teeth.
22   He agreed that a displacement appliance could be used as a diagnostic tool to see whether shifting the lower jaw would improve pain levels, ‘but is not a definitive treatment, nor will it address the problems associated with aesthetics’. He agreed that if it did not improve the pain, that would reduce the reason for performing the surgery other than for aesthetics. He said it was most unusual these days to use such a splint and was not something that was routinely done, and by ‘these days’ he included 1997. He was under the impression that facial aesthetics were a motivating factor in the plaintiff seeking treatment.
23   Dr Taylor acknowledged that there were other possibilities that could be tried, but said: ‘It is not, if you like, the ideal in terms of a technical point of view in producing the best possible bite’. The benefit from what he called the definitive way to correct her presenting problem, if it had gone as expected, would be that she would have had a far better occlusion, a better ability to eat, better aesthetics, whether she wished for them or not, it would be highly likely to have cleared up her angular cheilitis ‘and there would be a good chance that it would address the problem of her pain’.
24   The defendant also relied on the expert opinion of oral and maxillofacial surgeon, Associate Professor Robert Jones of the University of Adelaide, whose reports were tendered without his being required to attend for cross-examination. He did not examine the plaintiff for his original opinion on the appropriateness of the treatment plan, but did examine her in Melbourne early this year for a further opinion.
25   Associate Professor Jones’ opinion was that the treatment plan was appropriate for the plaintiff with her presenting problems, which he originally understood to include concern about her facial appearance. He states that the mechanical treatment of skeletal Class II occlusions in this way helps support temporomandibular joints, although it could not be guaranteed to cure the facial pain, and it would help treat the angular cheilitis perhaps in conjunction with antifungal medications. He did not believe her age was a contra-indication to jaw corrective surgery, but agreed that the incidence of problems with surgery is increased in patients older than 40 over younger patients. He said that does not mean patients over the age of 40 should not have this type of surgery provided these problems are discussed beforehand. His own verbal information to patients includes that the risk of permanent numbness to the lip is higher in older patients. His mention of the chances of non-union is that it is extremely low, and his standard warning does not relate that risk to age.
26   His reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks.
27   Mr Jones maintained his opinion that the treatment plan was the best chance of curing her problems, despite its unfortunate outcome, after he examined her in January 2007.
28   The plaintiff relied upon the expert opinion of Professor David, an oral and maxillo-facial surgeon, whose approach as head of the Australian Craniofacial Unit in Adelaide would, he said, be to treat a patient such as Mrs Paterno by having her seen by various members of a team of specialists, including an orthodontist, but also speech pathologist and social worker if surgery to change facial structure were to be contemplated. He had her assessed by such a team in order to give the medico-legal opinion sought from him by the plaintiff’s solicitors.
29 Professor David’s view was that in a woman of Mrs Paterno's age, there was a higher than normal risk of non-union of bone and associated complications such as nerve damage in performing a sagittal split osteotomy and, for that reason, it is unlikely that he and his team would offer a woman of her age with her condition this solution for her facial discomfort. He said that the presenting complaint of pain could be treated with the trial of a splint to raise the space between jaws vertically, and that would ascertain whether the complaint of pain was due to the temporomandibular joint, a proposition of which he was not convinced.
30   As part of Professor David's team, the plaintiff was examined by Dr Michael Nugent, an experienced orthodontist. He said that it would be unusual for him to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late 40s because at that age the risk of complications following surgery to the mandible is high. In such cases he would recommend the most conservative program to restore the occlusal function, which would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).
31   Mr Ian Carlisle, an experienced plastic surgeon who also has training in dentistry, and specialises in oral and facial surgery, gave evidence both as to his treatment of the plaintiff on referral by Mr Hookey, and also as to issues relevant to the appropriateness of the treatment. He said that in his experience, this sort of orthognathic surgery would only be performed for pain or for cosmetic reasons. If it were for pain, you would want to try to establish whether the surgery was likely to relieve the pain, and in those circumstances it would not be uncommon to have a bite raising appliance made and worn for some months. If it did not improve the pain ‘a lot’, it would be his view that one would probably not proceed with the surgery.
32   A further factual issue going to the appropriateness of the treatment plan emerged during the hearing. In his oral evidence, Mr Hookey said that both then and now it has been his firm policy not to perform tooth implants on patients who are smokers. He said the reason for this is that there is too high a failure rate - of between 15% to 20% - in smokers.[10]

[10]Citation omitted.

The judge concluded that the treatment plan was not suited to the respondent’s needs and that it was negligent of the appellant to recommend it. Her Honour found that:

41 I am satisfied from the evidence outlined that the treatment plan was technically the optimal way to create a normal occlusion in the plaintiff’s mouth. However, I am also satisfied that the decision to recommend it did not adequately take into account its suitability for her in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances….
….
45 …Despite Dr Taylor’s and Mr Hookey’s evidence, I am satisfied by the evidence of both Professor David and Mr Carlisle that the trial of a splint device for some months to see whether creating more vertical height would relieve the pain was a more appropriate approach before recommending surgery of this extent if such surgery were aimed at alleviating the presenting pain which at most was of a very moderate level.
…
48 The seriousness of the presenting condition and its likely future, including any potential deterioration in the patient’s health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.
…
50 In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orothodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks… [11]
[11]Citation omitted.

Recognised complications and appropriate warnings

Evidence was also given by a number of treating practitioners and other expert witnesses as to possible complications of the treatment plan and the warnings which, in their view, ought to have been given to the respondent. Her Honour referred to some of that evidence as follows:

63 The eventuality of non-union of bone appears on the evidence to be a rare consequence of this operation. Mr Hookey stated that he had never known it to occur before. Both Mr Jones and Mr Carlisle acknowledged it to be a known possible consequence of which they would give patients warning, although they confirmed that it was very rare. Although Mr Jones' own warnings to patients do not specifically detail any increased risk of non-union as a result of age, he accepted that age increases the risks of this surgery. Mr Carlisle said there was no question that age increases the technical difficulties in performing the operation. Dr Turner conceded that in principle age increases the risk of the non-healing of bones. While Mr Hookey still knows of no other instances from the plaintiff's, it is a risk of which he now says he ought to warn.
…
66 So far as the risk of nerve damage was concerned, ultimately the defendant conceded that the description ‘high risk’ of nerve damage applied in Mrs Paterno's case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage. [Counsel] argued, however, that such nerve damage could be expected to cause permanent numbness or diminished sensation, whereas the consequence of severe hyperaesthesia is most unusual, and did not require mention or warning to the patient. To this, the plaintiff's argument is that it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage. …[12]

[12]Citation omitted.

The judge had earlier concluded that the warnings which were given were inadequate. Her Honour held that:

65 The statement of claim … only alleges a failure to warn of ‘high risks’ attributing that description to the risk of non-union of bone. On the evidence in this case I am unable to find that that was a high risk due to its extremely rare incidence, even after allowing that it was greater than for an average patient due to the plaintiff’s age and being a smoker…
66 So far as the risk of nerve damage was concerned, ultimately the defendant conceded that the description ‘high risk’ of nerve damage applied in Mrs Paterno’s case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage.

In the judge’s opinion it mattered not that the nerve damage of which there was a significant risk of occurrence could be expected to cause only some permanent numbness or diminished sensation and not the sort of continuous burning pain of which the respondent complained. Her Honour said that she accepted the respondent’s argument that:

66 … it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage… I am therefore satisfied that in order to fulfil his duty of care, it was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk of her being left with permanent nerve damage as a result of the second operation.

The cause of the respondent’s pain

Finally, evidence was given by several of the treating practitioners and other expert witnesses as to the likely nature and cause of the plaintiff’s complaints, to some of which the judge referred as follows:

54 … It is clear that there was in fact non-union of bone on both the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a ‘bucket handle’ effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.
55 In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.
56 Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was ‘settling’ by which he says he was not referring specifically to pain but the overall operation result. By early November he had decided to schedule a reopening of the right split site, as a result of [the] continuing complaints of pain.
57 Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and the numbness respectively.
58 Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hookey or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.
59 Mr Ian Carlisle believed that there had been damage to the inferior alveolar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the non-union was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said ‘any nerve that ‘s been damaged can go on and perform and behave in a way that can cause unremitting pain’. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.
60 A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff’s pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage...In my view Mr Carlisle was in a better position to assess the plaintiff’s condition over a considerable period of time, and in this case I would accept his view [of] the likelihood of nerve damage over that of Dr White, despite his area of specialty, especially as it is supported by the opinions of both parties’ ‘expert’ maxillo-facial surgeons.[13]

[13]Citation omitted.

The judge concluded that the respondent’s pain was caused by nerve damage:

61 I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno’s jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injection such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve cause in the original surgery.

Was the treatment plan shown to be negligent?

The appellant contends that it was not open to the judge on the evidence before her to find that the recommendation of the treatment plan was negligent in the circumstances which obtained. Counsel submitted that, on the evidence, there was a strong body of medical opinion that the plan was well suited to the respondent’s needs and relied in particular on the report of Associate Professor Jones, on which he was not cross-examined and in which he roundly endorsed the suitability of the plan; the report and oral evidence of Dr Taylor, who also endorsed the suitability of the plan; the evidence of Dr Schwartz, who considered that the treatment plan was wholly appropriate, that an orthodontics only plan would not have been feasible, and that he would recommend the plan today for persons of the respondent’s age and presenting condition; and on the fact that Dr Romano was the first to contemplate a combined orthodontic and surgery plan and did not disagree with the plan proposed by Dr Schwartz and the appellant. Contrastingly, counsel submitted, the contrary opinions of Professor David and Dr Nugent were premised on incomplete information as to the respondent’s presenting condition and the problems which she sought to have rectified.

In our view, there is force in those submissions. Clearly there was a strong body of medical opinion in support of the view that the plan was appropriate to the respondent’s needs. Beginning with Dr Schwartz, we refer again to his letter of advice to Dr Romano of 4 March 1997 in which he advocated the combined orthodontic – orthognathic surgery approach to advance the mandible, expand the maxilla (via orthodontics alone or surgically-assisted) and increase the lower anterior facial height. The respondent’s case involved the contention that the appellant should not have accepted the view of Dr Schwartz that it was necessarily appropriate to alter the respondent’s facial morphology by jaw lengthening surgery. Dr Schwartz was asked about that in evidence in chief and said that he still held the opinion which he had expressed in the letter, and that if he were today faced with a patient such as the respondent with the same presentation he would recommend the same course of action:

To achieve the – a Class 1 Occlusion, which is what we try to achieve in dentistry and orthodontics, and to provide the best functional and aesthetic result for the patient.

Asked then by the judge whether he had told the respondent that she needed surgery, he answered that he had, because he considered that the combined surgical orthodontic treatment plan was necessary to give the respondent the best functional and aesthetic outcome.

Dr Schwartz was not challenged on that evidence. It was not put to him that the decision to recommend the plan did not adequately take into account its suitability for the appellant in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances. Nor was it put to him that it was necessary or desirable before recommending surgery to conduct a trial of a splint device for some months to see whether creating more vertical height would relieve pain. Nor was he offered the opportunity to respond to the notion that his recommendation of a:

‘complex and protracted course of treatment, of combined surgery and orthodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising’ …, fell below ‘the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks’. There was not the slightest mention made to him of there being any ‘more conservative [and, presumably, efficacious] measures to improve [the respondent’s] chewing ability’. [14]

[14]Reasons [50].

In effect his opinions were not put in issue. He was given no opportunity to comment upon the criticism of the course which he had proposed.[15]
[15]Rees v Bailey Aluminium Pty Ltd & Anor [2008] VSCA 244 [21] (Ashley, Redlich JJA, Coghlan AJA).

We go next to Associate Professor Jones’ report. Professor Jones was an associate professor in oral and maxillofacial surgery in the University of Adelaide and, after outlining the treatment plan recommended by Dr Schwartz, he stated this:

Treatment plan
I agree with this treatment plan.
The mechanical treatment of skeletal Class II malocclusions in this way helps support the temporomandibular joints, and therefore facial pain, although this could not be guaranteed.
Surgically assisted expansion of the maxilla is the treatment of choice for the management of transverse deficiency of the maxilla in adult patients, as it is the most stable way to treat this particular problem.
The alternative is to segmentalise the maxilla at the time of orthognathic surgery, however the stability of the segmentalised maxilla is thought to be inferior to that of the surgically assisted expansion.
It is normal practice for orthodontic alignment and decompensation of the dentition, to be carried out prior to orthognathic surgery to correct the skeletal problem, namely the Class II occlusion.
(b) Contra-indications
In relation to age, I believe Ms Paterno’s age was not a contra-indication to jaw corrective surgery. I have personally carried out jaw corrective surgery on a number of patients well over 40 years of age.
While I agree the incidence of the problems associated with surgery is increased over younger patients, there is no contra-indication to carrying out jaw corrective surgery in patients of this age group. There is an increase in the incidence of permanent nerve damage, and there is an increase in the incidence of non-union and malunion in patients of this age, but this does not mean patients over the age of 40 should not have this type of surgery, provided these problems are discussed beforehand.

Professor Jones was not cross-examined at all although, as has been seen, the judge remarked in her reasons that ‘his reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks’. If we may say so with respect, however, the fact that Professor Jones did not mention smoking did not detract from the force of his opinion. If anything were to be made of the effects of smoking, it was incumbent on the respondent to make the running. So, unless the respondent chose to cross-examine Professor Jones and put to him that his report failed to take into account that the respondent was a smoker, and that if he had taken that into account his conclusion could have been different, it was to be assumed that the respondent accepted that he had taken it into account or if not that it would have made no difference. Furthermore, as the later evidence of Professor David revealed, although smoking increased the risk of mal-union and non-union, mal-union was very rare, even in the case of smokers, and non-union was even rarer.

Counsel for the respondent submitted that it was not until late in the trial that the respondent was alerted to the significance of smoking, as a consequence of something said by the appellant in his evidence about having a policy of not carrying out implants on smokers. But that argument is not persuasive. It is clear that the respondent knew from very early in the trial, if not before, of the supposed significance of smoking. Mr Newton gave evidence about the subject as part of the respondent’s case before the appellant even got into the witness box; and Professor David gave evidence about the subject before the appellant’s case was closed; thus leaving plenty of time for the respondent’s counsel to apply to recall Associate Professor Jones if in fact they had been taken by surprise.

We turn to Dr Taylor’s evidence. Dr Taylor was a specialist orthodontist and, in his report dated 16 January 2007 he stated that:

2. Appropriateness of treatment plan
Based on the information provided in your background papers there is no doubt that the treatment plan presented to the patient by Drs Romano, Schwarz [sic] and Hookey was appropriate. Whilst I acknowledge the view other treatment options may have been explored the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice.
In basic terms a contributing factor to facial pain can be over closure of the mandible. A contributing factor to angular cheilitis can be overclosure. The overclosure in turn is commonly caused by a foreshortened mandible which is apparent from the cephalometric tracings provided with the history. Moreover the retruded mandible would impact significantly on the facial appearance of the malocclusion.
The definitive way to correct the overclosure/foreshortened mandible is the surgical advancement of the lower jaw. That procedure in turn necessitates the need to move the teeth hence the orthodontic treatment and that procedure also often requires correction in the transverse plane hence the initial surgically assisted maxillary expansion procedure.
The age of the patient should not be seen as a contra-indication. A more important aspect is her general medical condition rather than the age per se. My experience of over twenty years in dealing with similar cases confirms age in itself is not a deterrent and that many patients have been treated successfully without complication of greater age than this patient.

In cross-examination, he agreed that implants were more likely to fail in a smoker than a non-smoker and that smoking and higher age increased the level of risk. It was not suggested to him, however, that the respondent’s age or the fact that she was a smoker rendered the treatment plan inappropriate for her.

The judge asked him what other treatment options he had in mind when he referred to them in his report and he answered as follows:

Older type of treatments. It may well have included a range of partial dentures, the objective of which would be to add to the biting ability, to open the jaw or widen the opening of the jaw, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice, one would suggest it was really camouflaging the problem rather than treating the root of the problem, which essentially was the foreshortened lower jaw.
HER HONOUR: And is that how you’d explain it to your patient? - - - That is how I’d explain it to my patient, yes.

Asked then as to the propriety of a trial with an appliance of the kind referred to by Mr Carlisle to lift the lower jaw before surgery, he answered that:

An anterior mandibular displacement appliance, which is really what he’s referring to, is a diagnostic tool to see whether shifting the lower jaw will improve or alter the pain levels, and that ‘s certainly a recognised treatment or diagnostic aid, but is not a definitive treatment, nor will it address the problems associated with aesthetics.

He agreed that, if a trial with such a device did not reduce pain, there would be reduced reason for performing the surgery, apart from aesthetics, but he added that it would be most unusual these days to use such a splint - ‘[i]t is not something that is routinely done’ - and he said that: ‘it would be unusual for an orthodontist or an oral surgeon to have someone [wear] a diagnostic splint’.

It was put to him that there was little if any point in undergoing the surgery if it were not possible to complete the plan with implants, and he disagreed with that proposition. He said that:

There are two aspects to the surgery. One is to bring the jaw forward the purpose of which would improve the relationship of the anterior teeth, the teeth that she did have, would vastly improve the aesthetics, the appearance. If one then decided to do implants then that would be ideal. However there are other ways of filling in the spaces at the back such as a partial denture, but the efficiency of the partial denture would be far greater had the mandible been brought forward.

The judge later took the matter up with him herself, and this was the result:

HER HONOUR: Dr Taylor, you said earlier when the proposition was put that the end result might not be implants because the patient’s a smoker and the surgeon states he won’t do – categorically won’t do implants on smokers because of the known increased chance of failure, you said that there is – you put two aspects to the surgery that could still vastly improve the patient’s condition, one being to bring the jaw forward, which would vastly improve the bite on existing teeth? - - - Correct.
Even if ultimate implants aren’t going to occur? - - - Correct.
Now, if – well I understand from the evidence that at that stage this was – this plan was drawn up Mrs Paterno had only one existing lower back molar that was on the right side, there being none still on the left and the other on the right already missing, how would you foresee that proceeding if the surgery is done and you’re not going to proceed to implants at the end. How improved could her bite be – her chewing ability be with just that one right molar? - - - Her chewing ability simply on the anterior teeth would be vastly improved…
Sorry, the chewing ability on the back teeth, if there’s only one lower back molar how does it improve? - - - yes, the chewing ability on the anterior teeth, the teeth that she has would be vastly improved. If I can describe, she would have been biting like that – top teeth, bottom teeth. So the lower teeth are actually biting on the roof of her mouth. Forget what’s not at the back.
Yes? - - - The jaw is brought forward. She now has contact between the upper and lower front teeth. Regardless of what’s gone on with that. Ideally, to fill in the back teeth as well would give her great benefit further. Filling those gaps at the back, ideally, these days, would be done with implants. If there’s a contra-indication for implants, such as a heavy smoker, then a partial plate would still give her a better outcome by having had their jaw brought forward.

The judge asked him to ‘hypothetically now exclude aesthetics as a motivator at all’, and to say ‘does that leave the balance of going ahead with this treatment plan the end result of which would not be implants while she continued to be a smoker?’ He answered that it would:

If one is striving to get an ideal occlusion regardless of aesthetics but in terms of eating efficiency, and hopefully also reducing pain, then fundamentally the jaws need to relate correctly. And the way that that can only be achieved is to have orthognathic surgery, in this case to bring the jaw forward.

Later the judge returned to the same subject and asked him to expand on the:

two aspects to the surgery that could still vastly improve the patient’s condition [in the absence of implants], one being to bring the jaw forward, which would vastly improve the bite on existing teeth - - - Correct.
HER HONOUR: Even if ultimate implants aren’t going to occur? - - - Correct.

She then put it to Dr Taylor that the respondent had had only one back molar on the right side and none on the left and she asked him to explain how the surgery could improve the respondent’s bite if she were not to have implants. He answered that ‘[h]er chewing ability on the anterior teeth would be vastly improved’:

HER HONOUR: Sorry, the chewing ability on the back teeth, if there’s only one lower back molar how does it improve? - - - Yes, the chewing ability on the anterior teeth, the teeth that she has would be vastly improved. If I can describe, she would have been biting like that – top teeth, bottom teeth. So the lower teeth are actually biting on the roof of her mouth. Forget what’s not at the back.
HER HONOUR: Yes? - - - The jaw is brought forward. She now has contact between the upper and lower front teeth. Regardless of what’s gone on with that. Ideally, to fill in the back teeth as well would give her great benefit further. Filling in those gaps at the back, ideally, these days, would be done with implants. If there’s a contra-indication for implants, such as a heavy smoker, then a partial plate would still give her a better outcome by having had their jaw brought forward.

In re-examination, he reiterated that, given the respondent’s presenting symptoms:

the contemporary and modern approach in dentistry is to undertake combined, orthodontic orthognathic surgery. To try alternatives such as partial dentures and what we call opening the bite with various prostheses, is really 1950’s dentistry in the latter part of the 21^st Century [sic].

And he added that:
If the treatment plan had proceeded as we would have expected it to proceed and as it normally proceeds, that the patient would have a far better occlusion, a better ability to eat, better aesthetics, whether she wished to have them or not. It would be highly likely to clear up her angular cheilitis, and there would be a good chance that it would address the problem of her pain.

As the judge remarked in her reasons for judgment, there was of course also a body of opinion that the treatment plan was not suited to the respondent, and to the effect that it would have been advisable to proceed by way of a more conservative treatment regime. But with all respect to the judge, it appears to us that that body of opinion was substantially qualified and certainly not as strong as the favourable opinions already referred to.

We start with the report of Dr Michael Nugent, a specialist orthodontist. The substance of his report was limited to this:

It is difficult to assess Mrs Paterno’s occlusion and general facial appearance as the original records are not available. My experience dealing with growth and development problems has been gained working as a consultant orthodontist to the Australian Craniofacial Unit which was established in 1975. It would be very unusual for myself to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late forties. I feel at that age the risk of complications following surgery to the mandible is high. My recommendation in such cases would be to institute a program to restore the occlusion in the most conservative manner possible. In all such cases the restoration of correct occlusal function would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).

Cross-examined on his report, he agreed that he would have had to see the X-rays in order better to assess the respondent’s case, but he said that:

Intuitively with – with that sort of patient I think you know, I would – I would aim to do the most conservative dental approach and there are – there are other ways of treating her.

Asked whether he agreed with Dr Taylor’s opinion that the treatment plan was in keeping with contemporary dental practice he answered:

Yes. I’d agree providing the patient was suitable from an age point of view particularly.

He was pressed on that answer and asked whether, given the limited information which had been available to him, he was really in a position to dispute Dr Taylor’s opinion that the treatment plan was suitable for the respondent. He answered:

Well, I still feel and I feel quite strongly that while you might outline a plan like that in a younger patient, I think that late 40 year olds I’d – I would be very hesitant as I’ve said.
You‘d need to see something in the presenting condition that justified the recourse to surgery. Is that what you say? - - - Well, I’d need to see something that – that forced surgery as the only alternative treatment to correct the problems.

He said that he considered that the absence of teeth as opposed to the foreshortened mandible was the main problem but agreed that he would possibly have known more if he had seen the ceph tracings. He also agreed with the proposition that surgical advancement was the definitive way to correct a foreshortened mandible.

Then in re-examination he said that the more conservative treatment options which he had in mind were:

a partial denture or something, [so] as to do two things, to prevent the overclosure and therefore – and see how the – patient responded to that. You know, it’d be a trial, see how you go. The advantage of that method would be that if - if you didn’t for example cure the overclosure you could increase the size of the partial denture. You could carry out a selection – of strategies to cure if that was the – if overclosure was part of the aetiology of the angular cheilitis, because it may’ve been just a fungus infection.

He added that :

I would think that it would be suitable and I would be surprised if it wasn’t successful and so – but if it was successful I would then maybe look a bit further on think, well, you know, can we improve things? You know, by permanently – by using implants rather than a partial denture which can be a disadvantage to wear, and then - - -
By implants do you mean synthetic teeth implanted into the lower jaw? - - - Into the bone.

In the result, Dr Nugent did not disagree with Dr Taylor’s opinion that the efficiency of a partial denture would have been far greater if the mandible were brought forward by surgery, although, presumably he would not have agreed with Dr Taylor’s opinion that the alternative of opening the bite with various prostheses would be to revert to 1950’s dentistry in the latter part of the 20^th Century. Nor did he dispute Dr Taylor’s observation that to use prostheses would be really to camouflage the problem rather than treat the root of the essence of the problem, which was the foreshortened lower jaw. Dr Nugent accepted that the treatment plan would have been suitable for a younger patient.

The one point of significant difference between Dr Nugent and Dr Taylor was that Dr Nugent would have been ‘very hesitant’ to recommend such a plan for a patient in their late 40’s because: ‘I feel at that age the risk of complication following surgery to the mandible is high’, whereas Dr Taylor was clear that, while the incidence of problems associated with surgery is increased with the age of the patient, ‘there is no contra-indication to carrying out jaw corrective surgery in patients of this age group’; and that, despite an increase in the risk of nerve damage, and an increase in the incidence of non-union and mal-union, it ‘does not mean patients over the age of 40 should not have this type of surgery’ (an opinion consistent with that of Associate Professor Jones and, as will be seen, to some extent supported by Professor David).

It will be recalled that Mr Carlisle was the plastic and reconstructive surgeon to whom the appellant referred the respondent when he was unable to cure her pain and that Mr Carlisle diagnosed non-union. In his report, he explained how non-union sites on the left and right hand sides of the mandible were exposed through neck incisions and the area of non-union debrided back until there was bleeding bone. He stated that the respondent was then placed into a Class 1 occlusion with bone taken from the iliac crest to assist in filling the gaps. He said, however, that it was difficult to bring her into an ideal occlusion on the right side as the large gap in the bone would have led to further non-healing problems. He reported that a compromise was reached, therefore, and the bone held on both sides with A O construction plates until bony union was achieved.

Although he said nothing of it in his report, over objection Mr Carlisle was also permitted to give expert evidence in chief as to the fact that, as part of his practice, he performed the same sort of surgery on some of his patients as the appellant had performed on the respondent, and of the warnings which he gave to his patients before carrying out such surgery. In substance he said that in his experience there were two reasons why patients requested that kind of surgery: pain and cosmetic reasons. He opined that, if the motivation were the alleviation of pain:

it would not be uncommon to have a bite raising appliance made, which would clear the occlusion so any discrepancies in the occlusion would be partially overcome, and – on wearing that for a number of months, if the pain was improving a lot, one could assume that in fact the surgery to move the teeth into a position of a more normal occlusion would be significantly helpful.
If it didn’t improve the pain? - - - Then – and that was the indication for the surgery, then it would probably not be successful in that regard [scil. alleviating the pain]…

He stated that the major complications with this sort of surgery ‘in the long term’ are that the mandibular branch of the trigeminal nerve can be bruised during the procedure and in some cases it can produce a permanent sensory change. He said that there was no doubt that, with older patients, the procedure can be more difficult, in that the bone does not seem to want to split as easily as it does in a younger person, and ‘so probably [there is] an increased risk of nerve dysfunction in the long term’.

Asked about the suitability of the operation for someone in her forties, he said this:

So if one deals with a patient of, say, 49 years, in relative terms, we’re talking of a patient in the older category, is that so, or not? - - - Well, that’s a very personal sort of - - -
No, I don’t mean it that way, is 49 as high as the risk goes in terms of age, or do you operate on patients older than 49 - - -? - - - I think that would be the upper limit of where one would [be] looking at this type of surgery, I think that I may have operated on someone a little older than that, but it would be unusual.

Asked what complications he discussed with patients, he said that he discussed the risk of the anaesthesia, the risks in the post-operative period of bleeding, swelling, numbness of the lip which he said would invariably be present, and risks in terms of the airway following this procedure. He said that probably up to 5% of people who had the operation suffer from permanent post-operative numbness of the lower lip and that he always warned patients about that risk.

In cross-examination he explained that the sort of numbness he was talking about was numbness of virtually half the chin; in effect altered sensation or a total absence of sensation. He said it was not the sort of burning pain experienced by the respondent, and that the risk of the sort of burning pain suffered by the respondent was highly unusual.

Asked about tests which he had undertaken to attempt to identify the cause of the respondent’s pain, he said that, despite those tests, ‘this pain remained somewhat of a mystery’.

Finally, when questioned about his view on the desirability of the kind of surgery carried out by the appellant, he said that, in the end, there were really only two reasons for such surgery, pain and aesthetics, and that he would class difficulty in chewing as pain. He did not suggest that it was inappropriate surgery in this case.

We go last to Professor David’s evidence. In his report he stated that:

The treatment plan as set out by Mr Hookey would be appropriate for the mechanical correction of the deformity as described with the following qualifications:
(a)the relationship of the deformity with which this woman had lived for well over 40 years, and the pain she says was not chronic is dubious, and a clear understanding should be had that correction of the deformity towards the facial skeletal norms of the rest of society does not necessarily relate to curing pain.
(b)performing a saggital split osteotomy in a woman of this age with a partially edentulous mandible gives a higher than normal risk of non-union and associated complication such as nerve damage. For this reason, it is unlikely that I and my team would offer a woman of this age, with this condition, this solution for her facial discomfort and certainly not for the angular cheilitis, which merely requires the application of some cream.

In his report, Professor David also stated that he considered that the decision to operate on the respondent was ‘an unwise decision’ and that if she had been managed without surgical intervention on her mandible, the sequence of events which led to her pain and suffering would have been avoided.[16]
[16]Ibid 501.

It emerged in oral evidence, however, that Professor David had expressed that opinion on the basis of an incomplete understanding of the facts. As he disclosed in oral evidence in chief, his understanding of the only purposes of the treatment plan had been the relief of pain and the eradication of angular cheilitis:

[M]y understanding of the treatment plan was for the relief of pain and for relief of the cracks at the corner of the mouth as compared to being to restructure her face to make it look better or function better in some way.
…
So the point that I have made in my report is that – the first point, is that such a [plan] from the point of view of correcting the facial skeleton towards the norm, and nicely constructed into disciplinary management with [the] orthodontist and oral surgeon, is inappropriate for such symptoms. It is my experience over 35 years [that] I have never once seen somebody who’s had an operation even for quite severe pain, even if it was emanating from the temperomandibular joints, that actually solved that pain problem.

Turning to his evidence in cross-examination, he confirmed that, in forming his opinion as to the propriety of the treatment plan, he had not been aware that the respondent presented with difficulties in chewing, or that her malocclusion was such that her lower teeth were impacting on her palate, or of the extent of her overbite. Rather, he had been of the view that the only presenting problems were facial pain and angular cheilitis:

Yes, did she tell you that she was – did she tell you or not tell you that she was having – experiencing difficulty chewing? - - - She did, not at the time, but at the time she saw me.
Yes, yes, I should have clarified – did she tell you that prior to attending Dr Romano from whom she was referred to Dr Schwartz from whom she was referred to Dr Hookey, prior to that she had experienced difficulty in chewing? - - - No, her indications that she gave to me were that she had pain, and that she had angular cheilitis.
Did she tell you that again prior to attending Dr Romano, who referred her to Dr Schwartz that there was a problem of impaction of the – of incisors onto the palate? - - - No, that was not raised with me.

Was Mrs Paterno’s injury within the scope of the risks against which she should have been warned?[91]

[91]Ground of appeal 7(e).

Ground of appeal 7(e) contends that her Honour wrongly held that Mrs Paterno’s injury was within the scope of the risk against which Mr Hookey should have given a warning.

In Rosenberg v Percival, Gummow J explained that two questions must be resolved in deciding whether a plaintiff’s injury was caused by a failure to warn of risks associated with treatment. He said that

[a]t the first level, the risk must be related in a physical sense to the injury that was suffered. Thus, a medical practitioner will not be held liable for the failure to warn a patient of a material risk of damage to ‘her laryngeal nerve’, if the injury that eventuated resulted from a misapplication of anaesthetic. This is so despite the fact that the patient would not have had the treatment and therefore would not have suffered the injury from the misapplication of anaesthetic if the patient had been warned of the risk to ‘her laryngeal nerve’ This can be seen as an example of a situation where the application of the ‘but for’ test would lead to an unacceptable result. [92]

[92](2001) 205 CLR 434, 460.

The second question relates to whether the patient has established that he or she would not have had the treatment which caused the harm if an appropriate warning had been given. I return to that issue below.[93]
[93]See [329]–[340] below.

At the trial, Mr Hookey’s counsel contended that it was unnecessary to consider whether he had warned Mrs Paterno of the risks of non-union of the bone or nerve damage as the result of jaw surgery, because the evidence did not show that her chronic severe pain was caused by either of those risks. Her Honour’s findings on that matter were as follows:

While I agree that the evidence does not support that Mrs Paterno’s chronic ongoing jaw pain was caused by the nonunion of bone, I am satisfied that she had suffered significant injury as a result of it. It is clear that there was in fact nonunion of bone on the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a ‘bucket handle’ effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.
In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.
Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was ‘settling’ by which he says he was not referring specifically to pain but the overall operation result. By early November [he] had decided to schedule a reopening of the right split site, as a result of her continuing complaints of pain.
Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and numbness respectively.
Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hosking or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.
Mr Ian Carlisle believed that there had been damage to the inferior alveoloar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the nonunion was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said ‘any nerve that’s been damaged can go on and perform and behave in a way that can cause unremitting pain’. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.
A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff’s pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage. I note that despite Mr Carlisle’s protracted attempts to alleviate her ongoing pain without success, he still said that he had always believed her complaints of pain to be genuine. In my view Mr Carlisle was in a better position to assess the plaintiff’s condition over a considerable period of time, and in this case I would accept his view on the likelihood of nerve damage over that of Dr White, despite his area of speciality, especially as it is supported by the opinions of both parties’ ‘expert’ maxillofacial surgeons.

I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno’s jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injections such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve caused in the original surgery.[94]

[94]Reasons [54]-[61].

In my opinion, the contention that Mrs Paterno’s injury was not within the scope of the risk against which Mr Hookey should have given a warning is hopeless. The learned judge applied the correct test in determining whether Mr Hookey was liable. Her Honour said that Mrs Paterno could only recover for negligent failure to warn if she proved that her injury was caused by the risks in relation to which the warning should have been given.[95]
[95]Ibid [51]-[52].

This is not comparable to a case where a patient is not warned of a risk of damage to a nerve, but suffers such an injury from another cause, for example from the anaesthetic. Mrs Paterno was not warned of the high risk of permanent nerve damage causing numbness and, in rare cases, chronic pain. The pain was a foreseeable consequence of permanent nerve damage,[96] which her Honour held Mr Hookey had not warned Mrs Paterno about.
[96]Cf Rosenberg v Percival (2001) 205 CLR 434, 461 (Gummow J).

Her Honour held that a warning which explained the effects of nerve damage should have been given to Mrs Paterno. She carefully reviewed the evidence about the cause of Mrs Paterno’s pain. The finding that the pain was a consequence of nerve damage was supported by the evidence.

I was initially concerned by her Honour’s comment that the non-union of the bone had caused Mrs Paterno significant injury. Her Honour held that because there was not a high risk of non-union of the bone, Mr Hookey was not required to warn Mrs Paterno of this complication. It follows from that conclusion that if Mrs Paterno’s pain was caused by non-union alone, it could not be said to have been caused by breach of the duty to warn.

However later in her judgment, her Honour made it clear that she was taking the consequences of non-union into account, not because Mr Hookey had a duty to warn Mrs Paterno about bone non-union, but because ‘the defendant failed to adequately warn of nerve damage and the operation would not have occurred if he had’.[97] Assuming that Mrs Paterno proved that she would not have had the operation if she had been adequately warned of nerve damage, I consider that there was a sufficient causal connection between Mr Hookey’s failure to warn of the risks of the operation and the effects of bone non-union for the later effects to be taken into account in assessing Mrs Paterno’s loss. To paraphrase the comments of Gaudron J in Chappell v Hart,[98] a case which also concerned causation, it would be ‘sophistry rather than common sense’ to say that Mrs Paterno cannot recover for injury caused by bone non-union arising from an operation she would not have had if she had been adequately warned of the risk of permanent nerve damage.
[97]Reasons [65].
[98](1998) 195 CLR 232, 239.

I now turn to the question whether her Honour erred in holding that Mrs Paterno would not have had the operation if she had been warned of the risk of permanent nerve damage.

Would Mrs Paterno have gone ahead with the surgery if the proper warning had been given?[99]

[99]Grounds of appeal 6, 7(e), 8 and 9.

These grounds of appeal challenge her Honour’s finding that if Mrs Paterno had been adequately warned of the risk of permanent nerve damage she would not have had the surgery. After discussing Mrs Paterno’s evidence and taking account of the surgery which she had had in the past, her Honour said that she was satisfied on the balance of probabilities that Mrs Paterno had satisfied that requirement.

Counsel for Mr Hookey submitted that her Honour had asked herself the question whether Mrs Paterno would have had surgery if she had been warned of the permanent nerve damage which might result in the rare complication of unremitting pain. In doing so, she had applied the wrong test. The correct question was whether Mrs Paterno would have agreed to surgery if she had been given a therapeutic warning which weighed the risk of nerve damage against the benefits she would obtain from jaw lengthening surgery.

Counsel also submitted that, even if her Honour had applied the correct test, her finding on this issue was not reasonably open to her. It was said that her Honour should have given greater weight to the fact that Mrs Paterno had had surgery for other conditions, despite the risks associated with that other surgery, and to Mr Hookey’s evidence that he recalled telling Mrs Paterno that an anaesthetic could have catastrophic effects.[100] It was said that her Honour could not have found that a warning of nerve damage would have deterred Mrs Paterno from having surgery if a warning of the catastrophic effects of anaesthesia did not do so.
[100]Note also that the ‘Dental Implants’ brochure said that ‘a few people have may have a serious reaction to an anaesthetic’. There was dispute about which documents were given to Mrs Paterno at the first consultation with Mr Hookey.

Counsel also submitted that her Honour had not taken sufficient account of the problem of hindsight bias in weighing Mrs Paterno’s evidence. In support of that submission, he referred to Kirby J’s discussion in Chappel v Hart[101] of the difficulties in ascertaining a particular patient’s subjective response if they had been warned of relevant risks. Kirby J remarked that

[t]he subjective criterion involves the danger of the ‘malleability of the recollection’ even of an upright witness.[102] Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure at all[103] (where it was elective) or for postponing it and getting a more experienced surgeon (as in this case).[104]

[101](1998) 195 CLR 232.

[102]As Mahoney P observed in the Court of Appeal in this case, Chappel v Hart (unreported; NSW Court of Appeal; 24 December 1996) at 7; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560.

[103]As in Rogers v Whitaker (1992) 175 CLR 479 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

[104]Chappel v Hart (1998) 195 CLR 232, 272.

Finally, counsel submitted that while an appellate court should be reluctant to reverse a trial judge’s finding of fact that a person would have gone ahead with treatment even if an appropriate warning had been given, the same constraint did not apply to the reversal of a finding that a person would not have had treatment if they had been warned of the risks of that treatment, where the demeanour of a patient giving evidence was less likely to be important because the patient might genuinely believe that they would not have had treatment in those circumstances. He relied on McHugh J’s statement to that effect in Rosenberg v Percival.[105]
[105](2001) 205 CLR 434, 444.

Counsel for Mrs Paterno submitted that her Honour had correctly considered whether Mrs Paterno would have consented to the treatment plan if she had been aware of the risk of nerve damage and its possible consequences. Once Mrs Paterno proved, on the balance of probabilities, that Mr Hookey had failed to warn her of the high risk of permanent nerve damage, and that she had suffered such damage, the onus shifted to Mr Hookey to adduce evidence showing that the damage was not caused by the failure to warn.[106] He said that even if Mr Hookey’s evidence was sufficient to satisfy that evidentiary burden, her Honour was entitled to take account of all the circumstances in deciding whether Mrs Paterno would have gone ahead with the operation, had she received an appropriate warning. These included Mrs Paterno’s perception that her presenting symptoms were minor, the fact that she was not seeking treatment for aesthetic purposes, the fact that there were other possible options for treating her malocclusion, and her evidence that she would not have had the surgery if she had been warned of the risk of having a permanently numb lip. Her Honour’s finding that Mrs Paterno would not have had the surgery if she had been adequately warned of the effects of nerve damage was therefore open on the evidence.
[106]Chappel v Hart (1998) 195 CLR 232, 273 ( Kirby J), 257-258 (Gummow J).

In my opinion, the submissions made on behalf of Mrs Paterno should be accepted. As Kirby J remarked in Chappell v Hart, the dangers of accepting a patient’s statement that they would not have had a particular type of medical treatment if an appropriate warning had been given

should not be over-stated. Tribunals of fact can be trusted to reject absurd, self-interested assertions.[107]

[107]Ibid 272-273.

Further, as McHugh J recognised in Chappell v Hart

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 causal connection . An evidentiary onus then rests on the defendeant 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.[108]

[108]Ibid 247-248

It is doubtful whether Mr Hookey satisfied the evidentiary burden in this case. Mrs Paterno’s symptoms were minor, and there were other treatments for her condition. However, even if the evidence was sufficient to discharge the evidentiary burden resting with Mr Hookey, her Honour gave adequate reasons for accepting Mrs Paterno’s evidence that she would not have had the surgery if she had been warned of the risk of permanent nerve damage.

Mrs Paterno was prepared to undergo surgery and orthodontic treatment and suffer some post-operative pain. However, when she was asked in cross-examination why she would have a general anaesthetic which included the risk of heart attack or stroke, but wouldn’t take a risk of numbness to her lip, she responded:

I took a risk of an anaesthetic, it’s a risk you take, but you don’t – I didn’t want to take a risk of having any numbness at all because a woman does not want to be numb on the lips.

Her Honour had the opportunity to observe Mrs Paterno over the four days on which she gave evidence and regarded her as a credible witness, even when hindsight bias was taken into account.

Having regard to the above matters I do not consider that grounds of appeal 6, 7(e), 8 or 9 are made out.

The appeal against quantum

As I have said, her Honour awarded Mrs Paterno damages in the sum of $1,057,833. This included $350,000 in general damages, and $412,350 for future expenses after allowing for vicissitudes.[109]
[109]The balance of $295,483 comprised $127,050 for Mrs Paterno’s husband’s carer services and $168,433 for medical and like expenses to date (less savings in alternative dental treatment).

Mr Hookey now contends that the award of general damages was manifestly excessive (ground of appeal 13); and that the damages for future medical and like expenses, including attendant care and home help, were manifestly excessive, and made an inadequate allowance for the vicissitude of an improvement in Mrs Paterno’s condition (ground of appeal 14). Mr Hookey originally contended that her Honour erred in applying a multiplier of 780 to the cost of ongoing expenses (ground of appeal 15), but has since abandoned that ground of appeal. I deal with grounds 13 and 14 in turn

Were the general damages manifestly excessive?[110]

[110]Ground of appeal 13.

Her Honour described the effects of Mrs Paterno’s injuries as follows:
In addition to the five remedial operations and the ultimate result of continuing to experience chronic pain on the right side of her face, the plaintiff has been left with permanent numbness in her lower lip and a structurally altered mouth that still affords her difficulty chewing, and such that at times her ability to speak is distorted. Her strong medication may well contribute to her slurring of words, dribbling and slackness of the right side of her mouth, but there is no doubt that structurally her mouth has been changed, that the lip is numb, and even were she to be weaned from the extent of medication she currently takes, these disabilities will not be fully corrected. She has permanent scarring on both sides of her neck as a result of the surgery in December 1999 by Mr Carlisle and Mr Redman, who needed to approach the mandible from outside and through her skin. The appearance of her face will remain asymmetrical, noticeably extended on the right side compared with the left.
A further enormous effect on the plaintiff has been the side-effects of large and continuing quantities of medication. As a consequence of prolonged use of opiate-based drugs, she has suffered severe bowel side-effects, to the extent of at least twice being hospitalised for those. This has reached a stage where as her husband describes, she needs to counter constipation with substances that cause her to lose control of her bowels while heavily sedated, and she soils her bed regularly.
…
Also of significance has been the quantity of medication which she has needed for various consequences of her injuries. The precise drugs and dosages have been changed over the years, but since at least early 2000 there has been a large quantity of medication to address pain, anti-depressants, and various medications for the gastric complications from other medication.
The effects of her injuries have very dramatically and seriously changed the plaintiff’s life. Beyond mere ageing, she presents now as a different person from the one filmed in March 1997, admittedly at a joyous occasion and ‘dressed up’. I accept that the overall change has been to impose on her chronic intractable pain, only partially alleviated by large quantities of in itself debilitating medication. She has lost a lot of weight and is physically weakened. I accept that she feels dependent, and at times humiliated by the extent of her reliance on her husband for physical assistance. She has lost all confidence to socialise outside her family, and is described by Dr Lavoipierre as now virtually a recluse, needing constant assistance and also supervision for her pain, depression and anxiety.[111]
[111]Reasons [104]-[108].

Her Honour went on to consider the prospect that Mrs Paterno’s daily living might be improved by undertaking a pain management program which would reduce or eliminate her reliance on opiates for the purpose of pain management, and have the consequence of relieving the severe bowel complications caused by her opiate use.[112]
[112]Ibid [94].

The learned judge accepted that, under the supervision of Dr Lavoipierre, all reasonable treatment options had been explored and no further curative solutions had been offered or were available.[113] She referred to the evidence of Dr Jane Trinca, a specialist in pain medicine, that Mrs Paterno had expressed an interest in participating in a pain management program at the Barbara Walker Centre, but that the selection process for the program is rigorous and only one in eight applicants are successful. Her Honour considered that there were significant barriers to Mrs Paterno’s acceptance into the program, and that even if it were to succeed, the program would give her strategies to deal with her ongoing physical condition and to cope with her pain, but would not cure it.[114] Her Honour referred to Mrs Paterno’s bowel problems, psychiatric issues and the need for her to withdraw from her use of morphine before entering a pain management program and concluded that:

[t]hese features, together with the many years of chronic pain and pain management problems, indicate that while a possibility, [Mrs Paterno’s] successful rehabilitation through a pain management program is not a probability.[115]

[113]Ibid [117].

[114]Ibid [121].

[115]Ibid [118].

The judge awarded Mrs Paterno $350,000 in general damages to compensate her for ‘past and likely future pain and suffering and loss of enjoyment of life resulting from her injuries’.[116]
[116]Ibid [123].

Counsels’ submissions

347 Counsel for Mr Hookey argued that the general damages awarded by the learned judge were manifestly excessive, because Mrs Paterno continues to enjoy social activity and her pain is managed by medication. It was submitted that there are treatments available to Mrs Paterno that would overcome the side effects of the opiate medication. Relying on the evidence of Dr Trinca, counsel submitted that if Mrs Paterno was accepted into a pain management program, it was likely that she would reduce or eliminate her use of opiates. It was said that having regard to that possibility, the general damages award should be reduced to an amount in the range of $200,000 to $250,000.

Counsel for Mrs Paterno submitted that the learned judge had taken careful account of the pain and suffering and loss of enjoyment of life that she had suffered. Mrs Paterno had sustained the injuries that were the source of her suffering while she was in the prime of her life and very socially active, and, in addition to enduring considerable pain, she had experienced a loss of self-worth. Her Honour had taken proper account of the prospect that future treatment might bring about an improvement in Mrs Paterno’s lifestyle.

Conclusion

In CSR Readymix (Australia) Pty Ltd v Payne,[117] Winneke P explained the principles which govern appellate consideration of an award of damages for personal injuries made by a judge:

The principles by which an appellate court will be guided in an appeal of this nature are not in doubt. Where it is alleged on appeal that a judge's assessment of damages is manifestly excessive an appellate Court, before it interferes, should be satisfied that the judge has acted on a wrong principle, or has misapprehended the facts or, for these or other reasons, can be seen to have made a wholly erroneous estimate of the damages suffered. It is not enough that the appellate court itself might have awarded a different sum: per Lord Wright, Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-617; Miller v Jennings (1954) 92 CLR 190 at 195-6, per Dixon CJ and Kitto J. It is apparent from such statements of principle that a trial judge, in assessing damages, is involved in the exercise of a form of discretionary judgment and, as such, that judgment should stand unless the appeal court is clearly satisfied that the judicial function has not been duly performed: Minchin v Public Curator of Queensland [1965] ALR 91, per Kitto J at 95-6; Bratovich v Mitchell [1968] VR 556 at 557-8.
Notwithstanding the principles to which I have adverted, it remains true that an assessment of damages made by a judge is not as inscrutable as an assessment made by a jury: PrecisionPlastics Pty Ltd v Demir (1975) 132 CLR 362 at 369, per Gibbs, J. Unlike the jury, the trial judge is expected to give reasons for the assessment which he makes and, in a case like this where damages are claimed under several heads, it is usually desirable that the reasons should descend to some degree of particularity in respect of each head of damage.[118]

[117][1998] 2 VR 505.

[118]Ibid 508. See also Murphy v Mark [1977] VR 316, 320.

His Honour went on to note that in assessing damages for pain and suffering and loss of amenities, the trial judge had the opportunity to observe the injured plaintiff and the effect of the injuries on him or her.[119]
[119]Ibid 508-509. See also Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 616-7 (Lord Wright); Moran v McMahon (1985) 3 NSWLR 700, 723 (Priestley JA), 726-7 (McHugh JA).

I conclude below that her Honour took adequate account of the possibility that Mrs Paterno might be able to reduce her reliance on opiates if she gains acceptance into a pain management program. As her Honour noted, successful involvement in the program could improve Mrs Paterno’s quality of life by enabling her to cope better with the pain and relieve her bowel management problems, but will not cure her pain, or the other effects of surgery described above.

As her Honour correctly recognised, the jaw lengthening surgery had appalling consequences for Mrs Paterno. The effects of that surgery will continue for the rest of her life. Her Honour did not act on incorrect principle or take a mistaken view of the facts. She carefully explained the reasons for the general damages award that she made.

In these circumstances the claim that the general damages were manifestly excessive is not made out.

Was the award for future medical and like expenses excessive?[120]

[120]Ground of Appeal 14.

The learned judge awarded Mrs Paterno $412,350 for future medical expenses.[121] That amount included awards for separate expense categories calculated, where appropriate, using a multiplier and adjusted to account for the vicissitudes of life. I will discuss each category in turn.
[121]Reasons page 59.

Her Honour accepted that Mrs Paterno is likely to need ongoing psychiatric assistance, and estimated that this would be required on a monthly basis for the foreseeable future. The future cost of psychiatric treatment was calculated at $45,000. Her Honour found that there was only a moderate prospect of Mrs Paterno’s need for psychiatric care reducing over the remainder of her life, and reduced the amount by 15 per cent for this contingency, resulting in a total award of $38,250.[122]
[122]Ibid [142].

The cost of future medical and hospital expenses was calculated at $183,000. Her Honour included in this amount the cost of fortnightly visits to both a GP and a gastroenterologist, and of monthly visits to a colorectal specialist. Her Honour also made allowance for an average of one hospital admission per year, as well as pathology, X-ray and ultrasound testing related to Mrs Paterno’s bowel and intestinal problems.[123] Her Honour awarded $183,000 for future hospital and medical expenses, but reduced this amount by 30 per cent for vicissitudes, producing a total of $128,100.[124] In particular, her Honour recognised that expenses associated with gastroenterological and colorectal care would be significantly reduced, and possibly eliminated, if Mrs Paterno is able to manage her pain without using opiates.[125]
[123]Ibid [143].
[124]Ibid [146].
[125]Ibid [143].

Separate allowance was made for the cost of in-patient detoxification from morphine ($5,500), and of a pain management program ($8,000). The total amount of $13,500 was not reduced for vicissitudes.[126]
[126]Ibid [147].

The learned judge acknowledged the difficulty in assessing Mrs Paterno’s likely future pharmaceutical needs on the information available to her. Her Honour was satisfied that her needs are likely to be substantial and ongoing, but said that the future need for morphine and medications relating to her bowel difficulties was uncertain. Her Honour calculated Mrs Paterno’s future pharmaceutical expenses at $171,000. In arriving at this amount, her Honour halved the cost of bowel-related medication currently taken by Mrs Paterno, and excluded long-term use of morphine, but recognised that alternate medication may be used in the future. The above amount was reduced by 30 per cent for the possibility that Mrs Paterno’s participation in a pain management program might reduce the extent of her pharmaceutical expenses.[127]
[127]Ibid [149].

Finally, allowance was made for physiotherapy and speech and occupational therapy. Her Honour made allowance for intensive therapy regimes over a 12 month period, followed by less regular assistance, but acknowledged that not all of these aspects of Mrs Paterno’s care would be addressed through successful completion of a pain management program.[128] In addition, allowance was made for the purchase of a mattress and other equipment, carer time to drive and accompany Mrs Paterno to therapy sessions, home assistance, transport to doctors and attendant care (other than for attending rehabilitation services). A reduction of between 10 and 20 per cent was applied to some, but not all, components of this expense category,[129] resulting in an award of $112,800.[130]

Counsels’ submissions

[128]Ibid [150].

[129]Ibid [151].

[130]Ibid page 59.

Counsel for Mr Hookey did not make detailed oral submissions on the amounts allowed for particular types of future expenses. In essence, his submission was that the amounts awarded for future medical and like expenses were too high because, as was asserted in relation to the general damages award, insufficient allowance had been made for the possibility of Mrs Paterno’s withdrawal from opioids. Again, counsel relied Dr Trinca’s evidence[131] that Mrs Paterno was a suitable candidate for a pain management program. Reference was also made to Mrs Paterno’s own evidence that she was interested in enrolling in such a program, and to Dr Lavoipierre’s evidence that he would in the future send her to a pain specialist and cease prescribing analgesics.
[131]See [347] above.

It was argued that a reduction of 15 per cent for vicissitudes should be treated as an absolute minimum. Counsel submitted that the total amounts awarded by her Honour for medical and like expenses[132] should be reduced to the following amounts:
[132]Excluding the amount awarded for inpatient detoxification from morphine and a pain management program, which was not challenged on appeal.

· psychiatric care: $31,500 (a 30 per cent reduction for vicissitudes, compared with the 15 per cent allowed by her Honour);

· medical and hospital expenses: $91,260 (50 per cent reduction for vicissitudes, compared with the 30 per cent allowed by her Honour);

· pharmaceutical expenses: $85,000 (50 per cent reduction for vicissitudes, compared with the 30 per cent allowed by her Honour after reducing the cost of bowel medication by half); and

· physio, speech and occupational therapy expenses: $75,000.[133]

Counsel submitted that, based on the above recalculated amounts, the total amount awarded to Mrs Paterno in respect of future medical and like expenses should be reduced to $296,260.

[133]Counsel did not explain the vicissitude reduction that was applied to each of the amounts which comprise the total award made in respect of these expenses.

Counsel for Mrs Paterno said that it was trite law that future expenses must be reduced to account for the vicissitudes of life, and that the 30 per cent reduction applied to the amount awarded for future pharmaceutical expenses adequately accounted for the possibility that Mrs Paterno’s condition might improve through pain management strategies.

Conclusion

It is necessary to briefly refer to the evidence of Dr Lavoipierre, Dr Trinca and Dr Courtney about the possibility that Mrs Paterno might manage her pain without relying on opiate medication.

Dr Laviopierre, a psychiatrist who has treated Mrs Paterno, testified that her pain was unrelenting and caused her anxiety and depression. He said that she had sought treatment at the Royal Melbourne Hospital pain centre, but that the pain management program was ‘not efficacious in [terms] of relieving any of her pain, or indeed improving her quality of life’. In cross-examination, Dr Lavoipierre conceded that Mrs Paterno’s participation in the program had to be suspended due to gastrointestinal complications. He was, however, doubtful that further pain management treatment would bring about a dramatic improvement in her situation. Dr Lavoipierre considered that it was unlikely that Mrs Paterno would be able to cease her use of opiate medication, though he said he could not predict the future.

Dr Trinca, who practices in the area of pain management, gave evidence that Mrs Paterno may be suitable for admission to a pain management program, but said that she was not in a position to make an comprehensive assessment of her suitability. Dr Trinca identified a number of factors which would prevent Mrs Paterno’s admission to such a program in the short term, including her depression, as well as her heavy opiate use and related bowel problems. She said that before being admitted to the program, Mrs Paterno would need to withdraw from opioids, and her bowel problems would need to be stabilised to the satisfaction of her gastroenterologist.[134] Dr Trinca said that if she withdrew from the opiates and gained admission to the program, she was likely to have a better quality of life, and her pain level could remain as it is, or improve.
[134]In this respect, I note that Professor Peter Gibson, Director of Gastroenterology at Monash University, has recommended surgical intervention to better manage Mrs Paterno’s constipation.

Dr Courtney, an anaesthetist and pain management practitioner, saw Mrs Paterno in late 2002, for the purpose of administering ketamine injections to facilitate her withdrawal from opioids.[135] He gave evidence that withdrawal from opiods and the development of pain management techniques improves function and was the ‘optimal choice’. He also said that patients who withdraw from opioid use and complete a pain management course sometimes relapse. In Mrs Paterno’s case, he said that her long use of opioids may mean that she is less likely to successfully complete a pain management program in the future.
[135]As a result of this treatment, Mrs Paterno was able to withdraw from opioids for a period before her pain increased again.

Based on this evidence, it was open to her Honour to consider that it was far from certain that Mrs Paterno would be able to manage her pain without using opiates. The extent of the reduction for the contingencies which should have been made in this case is not susceptible to precise mathematical calculation. Her Honour carefully explained her reasons for her value judgments about the reductions to damages awarded for future expenses. In doing so, she did not err in principle and was not mistaken as to the facts. Ground 14 therefore fails.

For the above reasons I would dismiss the appeal.

- - -

[2009] VSCA 48

19 March 2009