Hribar v Wells
[1995] SASC 5111
•8 June 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2) BOLLEN(1) AND DUGGAN(3) JJ
CWDS
Negligence - dental surgery failure to give adequate prior warning of risks involved in the surgery - causation - damages - damages here include adverse consequences of surgery other than those not the consequences against which a warning should have been given. Bruno v Davies (1988) 144 LSJS 226; Rogers v Whitacker (1991) 23 NSWLR 600 and Neall v Watson (1960-61) 34 ALJR 364, applied. Havenaar v Havenaar (1982) l NSWLR 626, discussed.
HRNG ADELAIDE, 7-10 April 1995 #DATE 8:6:1995 #ADD 4:9:1995
Counsel for appellant: Mr B Martin QC
Solicitors for appellant: Wallmans
Counsel for respondent: Mr D Howard
Solicitors for respondent: J A Carr and Co
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J This is an appeal by the unsuccessful defendant in an action in the District Court. The appellant is a dental surgeon. He is a specialist in oral and maxillo-facial surgery.
2. The appellant performed an operation on the respondent at the Wakefield Street Hospital on 15th April 1989. In 1987 a dentist whom the respondent consulted had referred her to an orthodontist because she was grinding her teeth. That was caused by a malocclusion. In due course the respondent became the patient of the appellant. The appellant advised the respondent that she should have an operation to correct the malocclusion. The operation was to be by way of breaking and realigning the jaws. It was performed.
3. The operation left the respondent with pain and disability. Sometimes the pain was severe. The respondent had other surgery and treatment from other doctors and surgeons. Some area of pain was relieved but still she was, and is, suffering pain and discomfort.
4. The respondent claimed damages for breach of duty and in negligence. I think that the pleadings were wide enough to cover the causes of action of breach of contract and negligence. It does not matter which is considered. This is no place to embark further upon the debate about contract or tort. If there was a breach of contract it consists of a negligent omission. The learned trial judge saw the case as one "based on professional negligence". So be it.
5. The allegations against the appellant boiled down at trial to two. One was failure adequately to advise the respondent of possible adverse effects of the operation. The other was failure to provide proper post-operative care and management. There was, in the end, no evidence to justify the second allegation. So the case came down to a case about "informed consent". Had the appellant given adequate warning to the respondent about "possible untoward consequences of the operation" (words of the learned trial judge).
6. The learned trial judge found that he had not, that he was negligent in that sin of omission and that the respondent thereby suffered damage. He awarded damages. His Honour found that, had she been warned, the respondent would not have had the operation.
7. Expert witnesses were called on each side. The learned trial judge said:
"The expert witnesses were Professor J D deB Norman and
Dr J Locke (called by the plaintiff), and Professor A N Goss
(called by the defendant). Like the defendant, all the
expert witnesses are oral and maxillo-facial surgeons.
Evidence was also received by way of the tender of hospital
and medical records and a number of written reports."
8. More must be said about what happened. Let the learned trial judge speak. He said:
"In 1987, the plaintiff's dentist referred her to
Dr S Oleschenko, an orthodontist, because her front teeth
were wearing down due to bruxism (grinding of teeth).
Dr Oleschenko referred her in turn to the defendant. The
defendant saw the plaintiff in November 1987 and February
1988 and advised her that she should undergo the operation
and associated orthodontic treatment.
The operation requires an osteotomy (cutting of bone) on
each side of both the maxilla (upper jaw) and the mandible
(lower jaw). The surgeon exposes the bone by incising
tissue in the inside of the mouth. After the osteotomy, the
jaws are realigned and fixed in position by metal plates in
the maxilla and metal screws in the mandible. The
associated orthodontic treatment requires the placing of
bands on the teeth and the periodic adjustment of those
bands over a period extending either side of the operation.
In the case of the plaintiff, the bands were fitted by
Dr Oleschenko in April 1988. Following further
consultations with the defendant between February and April
1989 and a decision to advance the date of the operation,
the plaintiff was admitted to the Wakefield Street Hospital
on 14 April 1989 and the operation was performed the
following day. The plaintiff's condition and medication
were monitored in intensive care by an anaesthetist and
intensive care specialist, Dr McCleave. She was eventually
discharged on 20 April 1989. At first she experienced
general pain in her head, but thereafter the pain began to
localise along the right side of her jaw. She also began to
experience numbness around the mouth.
On 24 April 1989, the plaintiff was readmitted to Wakefield
Street Hospital with severe pain in the right side of her
face. The numbness around the mouth was still the same.
She was examined by Dr McCleave and a Dr Benny. The
defendant also arranged for her to be examined by Dr Guerin,
ear nose and throat surgeon.
The plaintiff was discharged again on 27 April 1989 and
thereafter cared for at home by the person who was to become
her second husband. He also took over the cooking, ironing
and washing. The plaintiff was on six week's leave from her
employment as a hairdresser with Toulay's Hair Design which
she had commenced in January 1989. She was taking pethidine
prescribed for her by her general practitioner and his locum
service.
The plaintiff consulted the defendant again on 3, 18 and 25
May 1989. The defendant advised her against pethidine and
referred her to a physiotherapist for ultrasound and
interferential treatment. He also recommended that she see
a psychiatrist. The plaintiff was upset by the
recommendation and refused to act on it. She was unable to
return to full time work as a hairdresser because of
continuing pain. She obtained two shifts per week in the
bar and TAB agency of the Elizabeth Tavern between July and
September 1989. She resigned from that work because she
found she was making mistakes with money under the influence
of her medication. She saw the defendant on three further
occasions before August 1989. She continued to take
pethidine for the pain.
The plaintiff's last consultation with the defendant was on
23 August 1989. By this time, her pain had become
concentrated in three separate areas: in a vertical line
from immediately under the right eye through the eye to the
eyebrow, along the line of the mandible from the right
earlobe to the centre of the chin, and in the fleshy part of
the right side of the neck immediately under the mandible.
The plaintiff elected to seek other advice in about
September 1989. She felt that the defendant was not taking
her seriously. Dr Oleschenko referred her to Dr (now
Professor) Goss. Professor Goss admitted her to the
Burnside Memorial Hospital on 17 November 1989. He explored
the maxilla under general anaesthetic and found good bony
union of the osteotomy and no external evidence of nerve
damage. He removed the plates in the maxilla and performed
a cryofreeze of the right infra-orbital nerve. That nerve
supplies sensation to the right cheek area under the right
eye.
Following her discharge, the plaintiff was admitted to the
Royal Adelaide Hospital on 24 November 1989 with severe
pain. An abscess was lanced, and she was investigated by
the Pain Clinic at the hospital. Professor Goss was a
member of the Clinic. She was discharged on about 1
December 1989.
The pain under and through the plaintiff's right eye
disappeared as a consequence of the cryofreeze procedure.
As was expected, however, she was left with numbness under
her right eye. The plaintiff's other symptoms persisted.
Professor Goss prescribed a tricyclic anti-depressant in
lieu of pethidine. He also advised that she should wear a
splint which Dr Oleschenko made for her.
Between February and June 1990, the plaintiff undertook
casual work three nights a week as a cleaner with the
Woodville Council. She was assisted in that work by her
second husband, whom she married in May 1990. In that same
month, she was referred to a Dr Marzec, ear nose and throat
surgeon. Dr Marzec referred her to Dr T Wilkinson, a
specialist in temporo-mandibular joint dysfunction, and
Dr Wilkinson sent her back to Professor Goss.
The plaintiff worked as a casual kitchen hand and waitress
between June 1990 and January 1991. For a few months
thereafter she ran a day care centre for children at her
home, having attended a four day course of instruction. She
resumed her employment as a cleaner with the Woodville
Council in July 1991. In the financial year July 1991 to
June 1992, she earned a gross income of $13,872. Again she
was assisted by her husband in that work.
The plaintiff's pain got worse towards the end of 1991. She
saw Professor Goss in December 1991 and January 1992, but
then elected to terminate the association. By this time,
she had consulted solicitors who arranged for her to see
Dr Locke. Dr Locke urged the plaintiff to return to
Professor Goss, but she declined to do so.
Dr Locke performed two operations on the plaintiff at
St Andrews Hospital. On 24 March 1992, he removed all four
screws from the mandible. On 14 July 1992, he resected the
infra-orbital nerve.
By the first operation, Dr Locke hoped to treat tenderness
in the floor of the mouth and pain in the right side of the
jaw. Dr Locke's view at that time was that the pain and
tenderness were caused by irritation from a protrusion
beyond the bone of the lowest screw in the mandible. At a
consultation on 11 May 1992, the plaintiff reported that she
had been free of pain in her jaw for several weeks.
The second operation performed by Dr Locke was designed to
treat a recurrence of pain under and through the plaintiff's
right eye by terminating the peripheral function of the
infra-orbital nerve. The pain had been previously treated
by the cryofreeze performed by Professor Goss. Again the
pain was replaced by numbness under the right eye.
In August 1992, the plaintiff commenced methadone treatment
for pethidine addition at the Drug and Alcohol Dependency
Unit at Waranilla.
On 14 December 1992, the plaintiff flew to Sydney with her
mother for examination by Professor Norman. She presented
to Professor Norman with continuing complaints of numbness
and pain.
On 21 January 1993, the plaintiff was admitted by Dr Locke
to St Andrew's Hospital following complaints of locking of
the jaw. Dr Locke thought that the complaints were
suggestive of temporo-mandibular joint dysfunction. He
found that jaw movements upon manipulation under general
anaesthetic were free and unrestricted, and elected not to
proceed with surgical exploration. On 28 January 1993, the
plaintiff reported to Dr Locke that her facial pain and jaw
restriction were much improved. There were no further
episodes of locking after the manipulation."
9. The learned trial judge then referred to some of the plaintiff's earlier medical history.
10. His Honour then said:
"The expert witnesses were in general agreement that the
plaintiff suffered from myofacial pain disorder before the
operation. Myofacial pain disorder is commonly associated
with temporo-mandibular joint dysfunction, and the condition
is thought to have a psychogenic component. The defendant
was informed of the condition at the outset by
Dr Oleschenko, and he later noted the presence of 'TMJ
SYMPTOMS' in his records. The expert witnesses were also in
agreement that the operation in question would not and did
not remedy the plaintiff's myofacial pain disorder. The
defendant said in evidence that his plan was to separately
treat the problem after the operation.
As I have said, the plaintiff's case is brought under two
broad heads. First, the defendant's alleged failure to warn
the plaintiff of the possible untoward consequences of the
operation. And second, the defendant's alleged failure to
provide proper post-operative care and management.
I should say at once that I do not consider that the
plaintiff has made out a case under the first head with
respect to the pain in her jaw. Clearly the pain which she
experienced in her jaw after her convalescence from the
operation was in excess of the warnings which she was given
by the defendant, but most if not all of that pain would
have been due, both directly and indirectly, to a
persistence of her myofacial pain disorder and associated
temporo-mandibular joint dysfunction. Doubtless the
disorder and the dysfunction were exacerbated by the
surgery, but the evidence does not provide a reliable basis
for a finding that any such exacerbation was permanent. So,
with respect to the plaintiff's case under the first head, I
will confine my attention to the issue of nerve damage."
11. So the basis in which an award of damages was made was that the appellant had not fulfilled his duty to warn, or adequately to warn, the respondent of the risk of permanent and painful nerve damage. No other allegation succeeded. Nor should it have done. There was no sufficient evidence on which to condemn the appellant in any other way.
12. I must again quote at length from the admirable reasons of the learned trial judge. He said:
"At stake here is the advice or information which the
defendant provided to the plaintiff for the purpose of
enabling her to make an informed choice whether or not to
undergo surgery. Advice or information, which a surgeon
provides for the purpose of bracing a patient
psychologically for surgery already decided upon, is
relevant only to the extent that it affords the patient a
reasonable opportunity to reverse the decision.
Next, it may not matter whether a surgeon provides advice or
information orally or in writing. If, however, the surgeon
provides a pamphlet which contains some advice or
information but not other advice or information, it behoves
the surgeon in his discussions with the patient to make a
particular point about the omitted advice or information.
The defendant's first two consultations with the plaintiff
were on 27 November 1987 and 10 February 1988. On the first
at least of those occasions he explained the nature of the
operation proposed, and advised that orthodontic treatment
would be a necessary pre-requisite. I am satisfied that the
plaintiff's decision to proceed necessarily comprehended a
treatment plan which comprised both the orthodontic
treatment and the surgery. I am satisfied that the decision
was taken no later than April 1988, which is when Dr
Oleschenko fitted the bands following the defendant's second
consultation with the plaintiff on 10 February 1988. This
means that the information and advice which the defendant
tendered to the plaintiff prior to April 1988 provided the
basis for her decision at that time to proceed. The
defendant's third consultation with the plaintiff was not
until 28 February 1989.
The plaintiff's evidence in relation to the consultation on
27 November 1987 was that the defendant handed to her a
pamphlet of which exhibit P7 is a copy. She no longer has
the original. An example of the original is exhibit D5.
She was given no other pamphlet, either then or at any other
time. She was told during the consultation that there could
be slight bruising and some swelling; that the swelling
would be at its worst for about 48 hours after the operation
and settle down to normal within six weeks; that she would
experience some form of numbness around her mouth following
the surgery; that the degree of numbness would gradually
improve and she would get back to normal feeling within a
period of about nine months; that there would be some pain;
and that she could expect to be away from work for three to
four weeks. The defendant did not tell her that it was
possible that there would be permanent numbness following
the injury.
The defendant's evidence with respect to the first
consultation was that he handed two pamphlets to the
plaintiff, namely, one or other of exhibits D5 and D6, and
D8. The defendant was unable to say which of exhibits D5
and D6 he gave to the plaintiff because at that time he was
transferring from wire fixation to rigid fixation of the
jaw. Exhibit D5 was relevant to wire fixation and exhibit
D6 was relevant to rigid fixation. The defendant said he
cannot challenge the plaintiff's evidence that she was given
exhibit D5. He said that the purpose of the pamphlets was
to supplement his discussion with the plaintiff about the
surgery. Although he has no particular recollection of the
discussion, his invariable practice is to go through the
operation with a patient step by step, and to discuss the
possible consequences with respect to pain, swelling,
bruising, scarring and nerve damage. On the topic of nerve
damage, the defendant's evidence was:-
'I then spent some time discussing the nerves, and I would
mention that 99.9 percent of people, there is always going
to be, in the initial phase, some numbness in the facial
area, and I usually just make a mark on my face, going from
the eyes down to my chin area. I then go on and discuss
that there are, in some cases, permanent numbness, and
that's, in my hands, a very small percent, and I don't quote
any percentages. I then go on to say with this type of
numbness you can bite your lip. The frequency of biting the
lip is not increased, but if you bit the lip you don't
realise you have bitten the lip. The next thing I discuss
is that it can be hot, and if things are hot they can burn
the lower lip, upper lip and tongue, because that's the
order that drinks go into your mouth. I then mention there
can be food on the lips, but you don't realise it's there.
Again, the frequency of food going on the lip doesn't
increase, but your knowledge that it's on the lips is not
there. I also mention that people don't realise that you
have got this numbness, but you are the only person that
knows that you've got this numbness. That's it for the
first conversation, and then I ask them to read through the
pamphlet. and there is usually a white spot on the back of
the pamphlet, and I ask people to write down any questions
that there are of this operation.'
As for the consultation on 10 February 1988, the plaintiff
said in examination in chief that nothing was mentioned
about the surgery, and basically it was just a check-up.
She said that on no occasion except the first did the
defendant talk to her about numbness following the surgery.
After prompting in cross-examination, the following exchange
took place:-
'Q. Can I suggest to you that during the consultation of 10
February 1988, Dr Hribar gave you a general description of
the surgery as to what was required and gave you some
warnings as to the sorts of things that might go wrong,
including some advice about pain and numbness.
A. I remember him describing the surgery, basically with
the skull showing me, I don't remember anything about screws
and plates being mentioned, I just took it that it would be
wired as per the little sheet that I said I recognised
yesterday, and basically that's all I can remember that was
said.'
The defendant's evidence about the second consultation was
that he asked the plaintiff whether she had any questions on
the pamphlets, and that he again discussed the operation in
detail. The plaintiff's only question was whether her
health cover would extend to the further orthodontic
treatment proposed, and the defendant agreed to write a
letter on the topic. The defendant said that he would have
supplemented his discussion with references to a skull and
jaw bones which he kept in his rooms for the purpose.
At this point, I quote that part of the defendant's evidence
which deals with the explanation which he said he gave to
the plaintiff on the second consultation, and invariably
gave to all patients, on the topic of nerve damage:-
'... I have to put special instruments down the cheek area
and down in to the tongue side to protect the nerves when I
am doing this operation. That is why I mentioned tongue and
cheek. Then with special instruments I separate the two
parts of the lower jaw. And then I mention that there is a
groove in the lower jaw and that groove contains the nerve
that holds the sensation to the teeth, gums and lips. I
then go to the second jaw with the flap on it and I open the
flap up and show them the red, white and blue. That that is
the nerves and blood vessels that supply the sensation. And
that the nerves come through to the teeth as demonstrated on
the models. That they come through onto the gums and there
is a little hole that they come out to supply the lip. I
mention that this nerve has to be stretched and, by
stretching it, they are going to have a numb lip. I also
mention that, with nerve injuries, that that is purely a
sensory nerve and not a motor nerve and so, therefore,
whatever they feel is not what other people see. And then I
use the analogy of Sylvester Stallone, saying that he can't
move his lips, because he had facial nerve damage, which is
the motor nerve. Because some people I have found from my
experience when I mention my nerves they think of facial
paralysis. That is, Bell's palsy. ... I then mention that
the nerves - this numbness can be temporary, or, in some
cases, it can be permanent. But that hasn't been a big
feature with my patients. That there is a small number that
do go permanently numb and, to them, it doesn't matter what
statistics I give to them, it is complete numbness for
sometime. I also explain to them that, with time, that this
area shrinks.'
Later in his evidence the defendant was asked whether by the
end of the second consultation he had discussed the
likelihood of numbness with the plaintiff, and his answer
was:-
'I said there would be 99.9% at the start, immediately after
the operation and then as time progressed, most people would
get the numbness back but there would be areas, that this
would be a patchy recovery, but with teenagers it's nine
months, with adults two years but it could be longer but
some people end up with permanent numbness.'
The defendant said he demonstrated the area of numbness to
the plaintiff by indicating with his fingers on his own face
a line from the eyes to the corners of the lips and down to
the chin area.
So much then for the consultations in November 1987 and
February 1988." And:
"The defendant's clinical notes contain three further
entries made prior to 14 April 1989, which is when the
plaintiff entered hospital for the surgery. For 28 February
1989, the clinical notes read 'Consultation'. The defendant
said that, after a number of discussions with Dr Oleschenko
at this time about the plaintiff's pain, a decision was
taken to use splint therapy to alleviate the symptoms. For
3 March 1989, the diary reads 'face bow'. The defendant
said that facial measurements were taken on that day. For 7
April 1989, the clinical notes read 'Impression'.
When the cross-examiner suggested that on 28 February 1989,
the date of the third consultation, the defendant spoke to
her of the possibility of some permanent numbness, the
plaintiff replied:-
'There was never anything said about numbness being
permanent, that I can remember very clearly, he said from
about 6 to 9 months that I would have numbness.'
The defendant made no clinical note of the immediate
pre-surgical consultation, but his diary shows that an
appointment was made for 14 April 1989 at his rooms 'for
review'."
13. The learned trial judge had earlier mentioned the pamphlets which the appellant gave the respondent. The pamphlets gave some information about the proposed surgery. His Honour said and made findings about the pamphlets thus:
"It is necessary at this point to identify the precise area
of dispute between the parties about what transpired on 27
November 1987 and 10 February 1988. Although it is common
ground that the possibility of numbness was mentioned on one
occasion at least, the defendant asserts and the plaintiff
denies that there was mention also that the numbness might
be permanent. The dispute is confined to oral
communications between the parties. It will be recalled
that the plaintiff's recollection that the defendant handed
exhibit D5 rather than exhibit D6 to her on 27 November 1987
was not disputed by the defendant. I need not make a
finding about exhibit D8, because its contents are confined
to the topic of diet. I note in passing, however, that the
defendant wrote the word 'PAMPHLETS' and the date '27/11' on
one of the proforma records which he kept and added to from
time to time over the relevant period.
I find on the balance of probabilities that the plaintiff
received exhibit D5 rather than exhibit D6. Exhibit D5
prefaces general information about the surgery with the
following:-
'This pamphlet is intended to give general information about
combined treatment involving orthodontics and jaw surgery.
It is hoped that it will stimulate questions that you might
wish to ask at the time of initial consultation.
I encourage family members such as parents or spouses to
read this pamphlet and to come to the consultation.
Specific information about diagnosis, treatment planning,
orthodontic and oral surgery procedures, risks, and possible
complications of the anticipated treatment will be explained
at that time. The goal of the consultation is to provide
information that will allow you to make an informed decision
regarding your treatment needs.'
The pamphlet takes the patient through the various phases of
a treatment plan from pre-surgical orthodontics to surgery
to post surgical orthodontics. Under the heading 'Factors
Unique to Jaw Surgery', the pamphlet deals with the factors
of scars, intermaxillary fixation, speech, diet, swelling
and pain.
I am satisfied on the evidence that nerve damage, whether
temporary or permanent, is a factor unique to jaw surgery,
yet exhibit D5 makes no reference to that factor.
Although, as I have found, it is likely that exhibit D5
rather than exhibit D6 was handed to the plaintiff, exhibit
D6 is significant for the light which it throws on the
defendant's practice between 1987 and 1989. It will be
recalled that in about 1987 the defendant replaced exhibit
D5 with exhibit D6 after changing from wire fixation to
rigid fixation of the jaws.
Exhibit D6 is divided into three sections headed 'Treatment
Aims', 'Sequence of Treatment' and 'Important Aspects'. In
the section 'Important Aspects', the pamphlet deals with the
factors of psychological aspects, pain, jaw stabilisation,
scarring, swelling, soft tissue response to the surgery and
nerve injury. The factor of nerve injury is dealt with as
follows:-
'NERVE INJURY
It is common to have loss of sensation with orthognathic
surgery especially when it involves the lower jaw. This
means there is normal movement of the lips but there is a
loss of awareness. Obviously, no-one will realise you do
not have feeling in the lips except for yourself. The
return to sensation is a gradual process and is patchy but
it is usually self limiting. For example, in the young it
can take 9 months and for the older patients it will take
longer.'
It will be apparent that, although exhibit D6 remedies the
omission by exhibit D5 of any reference at all to nerve
injury and numbness, the patient is still not informed that
loss of sensation may be permanent."
14. After making appropriate reference to Rogers v Whitaker (1992) 175 CLR
479 at 489 and 490 the learned trial judge marched to his conclusion thus:
"In my opinion, exhibits D5 and D6 are relevant to a
resolution of the allegation that the defendant failed to
warn the plaintiff of the possible consequences of the
operation. Those exhibits make it clear that it was the
defendant's practice to supply patients with written
warnings about the probability of pain and swelling, but not
about the risk of permanent loss of sensation. Although it
is true that the defendant supplemented written information
with verbal information, I am satisfied that nothing said by
the defendant to the plaintiff at any time prior to the
making of her decision to proceed with the treatment plan
could have been reasonably construed by the plaintiff as a
warning about the risk of permanent nerve damage. I am also
satisfied that nothing said by the defendant to the
plaintiff during the period from February to April 1989
would have given her a reasonable opportunity of choosing to
terminate the treatment at that stage. The defendant did
not, to borrow the words of the High Court, communicate
relevant information in terms which were reasonably adequate
for the purpose.
Before leaving the topic of pamphlets, I mention the
defendant's evidence that, shortly before the operation and
at the time that he handed forms regarding use of autologous
blood to the plaintiff, he also handed to her a pamphlet
headed 'Jaw Surgery: Pre-Operative and Post-Operative
Instructions' (exhibit D9). Although the pamphlet is not
primarily concerned with post-operative symptoms, reference
is made to swelling and pain.
I need not dwell on the question whether nerve damage with
consequential permanent loss of sensation is a material risk
inherent in the operation. There was no challenge to
Professor Norman's view that the operation - attended as it
was by retraction, the cutting of tissue and bone and the
use of screws - exposes the sensory nerves in the face to a
significant risk of permanent damage. Professor Norman
explained that the nerves which sustained permanent damage
in this case were the mandibular nerve, which supplies
sensation to the mouth and the lower lip in particular, and
the infra-orbital nerve, which supplies sensation to the
area of the cheek below the eye. I am satisfied that the
plaintiff, had she been warned of the risk, would have
attached significance to it.
I hold that the defendant's failure to advise and warn the
plaintiff of the risk of permanent nerve damage constitutes
a breach of his duty of care to the plaintiff."
15. The learned trial judge preferred the evidence of the respondent to that of the appellant. The learned trial judge found, of the respondent, "that her general presentation in the witness box was objective and dispassionate, and she gave me no reason to doubt her reliability on the critical issue of informed consent". Of the appellant, the learned trial judge said:
"For his part, the defendant relied, not upon his notes or
any independent recollection, but upon his 'invariable
practice'. I think that the defendant tended, with the
benefit and wisdom of hindsight, to equate what he should
have done five and more years ago with what he did do or
would have done five and more years ago. In my view, there
was a significant degree of reconstruction in his evidence."
16. The learned trial judge was, in my opinion, perfectly entitled to prefer the evidence of the respondent to that of the appellant. In the end it came down to the impression which the parties made upon the learned trial judge.
17. Mr Martin QC, for the appellant, wrote in his outline of argument thus:
"2.2 The evidence of the respondent concerning the content
of the various consultations with the appellant was vague
and uncertain. It did not provide a satisfactory basis upon
which to reject the evidence of the appellant as to his
invariable practice.
2.3 The Learned Trial Judge should have found either that
the appropriate warning had been given in the terms
described by the appellant or that the respondent had failed
to prove that the appropriate warning had not been given."
18. I cannot agree. The words spoken in evidence on the issue by the respondent amounted to a denial that adequate information had been given her. The question whether she was "vague" and "uncertain" was one for the adjudication of the trial judge who saw and heard her. The evidence given by the respondent was certainly adequate to defeat the assertions based on "invariable practice" of the respondent.
19. Breach of duty was proved by adequate acceptable evidence. What of causation? His Honour spoke briefly on the issue. He said:
"There remains the question whether the plaintiff's response
to an adequate warning would have been to decline the
surgery. Was the defendant's breach of duty the cause of
the plaintiff's loss? In Battersby v Tottman (1984) 35 SASR
577 at 582 and 583, Cox J drew attention to a difference in
the authorities as to whether the test is an objective or a
subjective one. I am satisfied on the evidence that, on
either test, the question should be answered in the
plaintiff's favour."
20. Mr Martin QC submitted that the respondent failed to prove that she would not have had the operation had she been given an appropriate warning about the risk of permanent nerve damage and numbness. I agree that the respondent carried the onus. I agree that the test is subjective. "Would this particular person, this plaintiff, have had the operation if..."? That is the question. I agree that objective facts may be called in aid to prove that, subjectively speaking, that person, the plaintiff, would still have had the operation or to prevent the discharge of the plaintiff of that onus. Mr Martin submitted, in effect, that an examination of her past "medical history" suggested that the plaintiff did what doctors or surgeons suggested without demur. But the plaintiff swore that she would not have had the operation had she been warned. Mr Martin wrote (and spoke to the point):
"The respondent's evidence was not capable of displacing the
strong inference from the objective evidence that the
respondent would have proceeded with surgery notwithstanding
the warning."
21. I do not think that the mere acquiescence in surgical advice over the past raises a "strong inference" that the respondent would have proceeded here notwithstanding any given warning.
22. And, as I said, the respondent swore that she would not have had the operation. Her evidence was accepted. At page 28 to 29 she spoke a little vaguely. The evidence is:
"Q. How important to you was the question of any numbness
that you might have suffered following the operation.
A. If I had - it is hard to explain. It didn't worry me
because I was relying on what he told me. If there had been
a chance that I had known it would be permanent numbness
then I don't know whether I would have gone ahead and had
the operation done."
23. I think that in the context the words "I don't know that I would have had" is but little different to "I would not have". But at page 68 the respondent said:
"Q. You have told us about numbness and other difficulties
and pain that you've suffered. If Dr Hribar had told you of
these potential difficulties, which you had in fact
suffered, would you have proceeded to have the surgery.
A. No, I wouldn't have proceeded to have the surgery."
24. I should mention that there was objection to this question asked in examination in chief of the respondent. But the objection was not upheld. The objection was based on failure to plead "causation". But I think that there was no need to plead that the plaintiff in a case like this would not have had the operation if a warning had been given. Perhaps it is a point of law. Perhaps it is inherent in the allegation of loss sustained.
25. But the fact is that the respondent said that she would not have gone on had the warning been given. The latter quoted passage no doubt related to numbness and other disabilities. But it is, I think, plain from the two answers which I have quoted that a warning of risk of permanent numbness and nerve damage would have meant that there would have been no operation.
26. The causes of action pleaded were established. There was, and is, entitlement to an award of damages.
27. The learned trial judge said of damages:
"My assessment of the plaintiff's damages will need to
reflect the fact that she was destined to experience
migraine type headaches and myofacial pain in any event.
Nevertheless, from the evidence including the evidence of
her second husband, it is clear that, over a period which
lasted at least until late 1992, the plaintiff experienced
significant pain and suffering and loss of amenities as a
result of her choice to undergo the surgery. The major
relevant events in that period were the orthodontic
treatment, the surgery itself, the readmission a few days
later, the cryofreeze, the admission for treatment of an
abscess, the investigation by the pain clinic, the
prescriptions of pethidine and then tricyclates, the removal
of the screws, the resection, and finally the methadone
programme. The major relevant symptoms in that period were
jaw pain immediately following the surgery and during
convalescence, pain alternating with numbness under the
right eye, numbness in and around the mouth, and the effects
and side-effects of medication. Those events and symptoms
were disruptive of the plaintiff's family and social life
and her recreational activities over a period of more than
three years.
The plaintiff's principal disabilities now are associated
with numbness in and around her mouth. Her evidence was
that she burns herself quite regularly because she cannot
tell how hot things are. She often gets blisters on her
lips. Food and liquid drool from her mouth, and she finds
that embarrassing. She cannot detect food with the tip of
her tongue. She rarely uses makeup because it feels
uncomfortable. She dislikes the altered sensation of
kissing. She often gets itchy on the mouth and right side
of her face.
The heads of damage for consideration are past economic
loss, non economic loss past and future, gratuitous services
and special damages.
Counsel for the plaintiff submitted a schedule of
calculations with respect to a period which begins with the
subject operation and ends with the plaintiff's resumption
of work with the Woodville Council in July 1991. On the
basis of a net earning capacity of $233 per week, the total
loss for the period is, in round figures, $17000. Bringing
favourable and unfavourable contingencies into account, I
allow past economic loss at $13,000.
Although in a sense the worst is behind her, the plaintiff
can expect to suffer her numbness for the rest of her life.
With respect to non-economic loss, I allow $20,000 for the
past and $20,000 for the future.
The plaintiff is entitled to be compensated for the
voluntary services provided by her second husband to the
extent that those services exceeded the services that he
would have provided as a member of the plaintiff's household
in any event: Bruno v Davies (1988) 144 LSJS 226 at 238.
The services were more of a domestic than a nursing nature.
The evidence lacks detail and the award must be moderate. I
allow $750.
Special damages have been agreed as to quantum only at
$8709.50. The sum includes allowances with respect to the
plaintiff's admission to St Andrew's Hospital on 21 January
1993 for treatment by Dr Locke. It will be recalled that
the plaintiff's complaints at that time were thought by
Dr Locke to be suggestive of temporo-mandibular joint
dysfunction. Since I have not found that any liability
should attach to the plaintiff's myofacial pain disorder and
associated temporo-mandibular joint dysfunction, I disallow
the sums of $200 and $770 which she has claimed for the
relevant surgical and hospital fees. I allow $7739.50 for
special damages.
In summary, the assessment is as follows:-
past economic loss 13,000
non economic loss
past 20,000
future 20,000
gratuitous services 750
special damages 7,739.50
$61,489.50"
28. The appellant challenges the amount of the award. There is in it an award of $40,000 for non-economic loss. It is that which is challenged. It is challenged not only as being manifestly excessive but on a ground of principle. Mr Martin wrote in his Outline:
"In assessing non economic loss the Learned Trial Judge
erred in taking into account disabilities that were not
related to permanent nerve damage about which the appellant
failed to give a warning, namely, 'numbness under her right
eye', 'inability to open her mouth to the full extent' and
difficulty biting into hard food.
In respect of her non economic loss, the respondent was
entitled to be compensated only for the permanent nerve
damage and numbness about which the appellant should have
given a warning. Such damage and numbness is confined to
the tip of the tongue and lips. The award of $40,000.00 was
manifestly excessive."
29. Mr Halliday, junior counsel for the appellant, addressed us on the question of damages. He said:
"It is our submission that the only products of the failure
to warn, if it is so that the appellant failed to warn, are
the numbness about the lips both upper and lower and the
necessary consequence of that numbness to the tip of the
tongue and parts of the gums. But that his Honour, in
reaching a decision to award $20,000, must have fallen into
error in taking into account what he said at p.1,239 'She
has numbness under her right eye'. Numbness under the right
eye is manifestly, on the evidence, not a product of the
injury that was found that the doctor failed to warn about."
30. The point of principle is most interesting. Is the respondent entitled only to damages for (in the apt words of Mr Halliday) " the products of the failure to warn" or for all other pain, suffering and loss of amenities caused by having the operation. There appears to be no direct evidence on the point. In Gover v SA (1985) 39 SASR 543 at 563 Cox J said:
"There is a question whether any of this evidence about the
risk of blindness really matters on any view of
Dr. Perriam's knowledge. The fact is that no such disaster
happened. Mr. McCarthy submitted that the evidence on the
topic shows, at the least, how lax the standards of
Dr. Perriam and his witnesses were generally. I do not find
the evidence helpful in that respect. There is a nice
question whether it is open to the plaintiff to argue that
she is entitled to recover against the defendants on the
ground that, had she been warned about the risk of
blindness, she would not have had either operation and
therefore would not have suffered the entropion and
trichiasis. I do not think that proposition can be upheld,
even assuming that the premiss is soundly based. If I am
wrong in holding that Dr. Perriam was not under a duty in
the circumstances to warn of the possible blindness
complication, the fact is that the plaintiff has suffered no
damage by reason of his breach of duty. No authority was
cited to me on this question. However, it seems to me that
on principle the different types of operation and their
respective risks have to be reckoned separately. They were
separate procedures, and one could have been performed
without the other. There is no reason to suppose that the
plaintiff did not understand that. In the circumstances I
do not think that it can be said that the entropion and
trichiasis that resulted from the canthoplasty were caused,
in the relevant sense, by the failure to warn the plaintiff
of a blepharoplasty risk."
31. This passage may seem to be capable of supporting the submission made by Mr Halliday. But I think that the remarks of Cox J may be simply remarks addressed to the evidence before him. If not, I venture, with respect, to differ. I think that, logically, if a patient has had an operation which he or she would not have had if not negligently advised then any adverse consequence of the operation must have been caused by the negligent advice and must sound in damages. Would he or she have suffered those consequences had he or she been fully warned about the risk of other consequences? No. Well, then, damages must cover both sets of "consequences". That I think to be the logical conclusion. Yet I can see that as a matter of policy that the law might seek to confine the assessment of damages in cases like this to the "products of failure to warn". The incremental approach to issues of proximity and causation nowadays always have regard (even if the regard comes to nothing in the end) to questions of policy. Would the "full recovery" idea go too far, push the bounds of recovery of damages in cases like this too far. For a time I thought that the decision of the High Court in Neall v Watson (1960-61) 34 ALJR 364 might be relevant here. The head note adequately tells us the facts and what was decided:
"A plaintiff brought an action for damages for injuries he
suffered in a collision between a motor car driven by
himself and another car driven by the defendant. At the
time of the accident, in which he sustained severe physical
and nervous injuries, the plaintiff, though apparently in
good health, was at the limit of his endurance by reason of
the intensity with which he had been working and great
family responsibilities and worries. He returned to work
shortly after the accident, but was unable to do the intense
work he had been doing previously and later transferred to
employment of a lighter nature. Seventeen months after the
accident, his health being then still in a precarious state,
he fell ill with severe pneumonia caused by a virus
infection, was in hospital for two months, had treatment for
a year, and was thereafter a chronic invalid.
Held, that the defendant was not liable for the damage
suffered by reason of the pneumonia and the ill health and
incapacity for work which followed that illness." At page 367 the Court said:
"The respondent is liable only for the injuries he caused,
in the sense in which the law speaks of cause and
consequence. He cannot, however, escape any of this
liability by showing that the sufferer from his wrong-doing
would not have suffered as he did had he been a different
sort of man. It does not avail a defendant to show that the
victim of his negligence was weak and easily injured. But,
on the other hand, a defendant is liable only for the harm
his negligence causes, not for harm later ensuing from the
operation of a new and independent cause."
32. That seems to offer an analogy which might be decisive. But in the end I think the facts are not comparable to the facts here. Nor is the case, at best, a situation in which harm is "later ensuing... from... a new and independent cause". It all comes from the one source. That is, the operation.
33. In Havenaar v Havenaar (1982) 1 NSWLR 626 the plaintiff suffered severe injuries for which he was awarded damages. He turned to alcohol in excess to relieve pain. That caused a condition of pancreatitis. One issue on appeal was whether he was entitled to damages in compensation for the adverse effects of pancreatitis on his life and earnings. Hutley JA thought not. Reynolds JA did not consider the point. Glass JA thought that the plaintiff was entitled to such damages. Glass JA said:
"So the question for decision is whether the bouts of
pancreatitis induced by alcohol during that period represent
a recoverable head of damage. That they were caused by the
defendant's negligence is not in dispute. But it is argued
that they are a remote consequence of it having regard to
the conscious intervention of the plaintiff in breach of
medical advice as a link in the causal chain. Since
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd (The Wagon Mound) (No 1) decision (1961) AC 388, the
test of remoteness is based exclusively on foreseeability.
If the harm suffered by the plaintiff is foreseeable as a
possible outcome of the defendant's negligence it passes the
test of remoteness. It is not necessary for the plaintiff
to show the precise chain of events which connects the
negligence and that harm or the foreseeability of that
particular harm as a possibility. It is enough if harm of
that kind is foreseeable in a general way as a possible
result.
'That it is sufficient that the class of injury as distinct
from the particular injury ought to be foreseen as a
possible consequence of particular conduct in order to
establish liability for damages for the particular injury is
well established.' Mount Isa Mines Ltd v Pusey (1970) 125
CLR 383, at p390.
Differences of judicial opinion may arise in determining the
class of injury to which the particular harm belongs: Rowe v
McCartney (1976) 2 NSWLR 72. In my opinion, however, the
appropriate genus here should be described as an aggravation
of the plaintiff's mental and/or physical malady by
treatment administered in an attempt to relieve his
symptoms. It is to such a category that one would assign
complications resulting from careless medical treatment or
addiction to pethadine(sic) medically prescribed as an
analgesic. That class of harm is clearly foreseeable as a
possible outcome of negligence in the driving of a vehicle.
Since it is foreseeable in a general way it is nothing to
the point that the defendant may not have foreseen as a
possibility the particular harm viz the resort to alcohol as
a pain relieving measure or the continued resort to it by
the plaintiff after the dangers had been explained to him.
His Honour found as a fact that the employment of alcohol as
an analgesic and the condition of pancreatitis which it
produced were of a character foreseeable as a possible
result of the defendant's careless driving and this finding
is in my view invulnerable to attack.
It will be recalled that his Honour also found that the
plaintiff resorted to alcohol because of a special weakness
to which others may not have succumbed. At this point the
evidence produces a convergence between the foreseeability
in a general way principle and the eggshell skull principle.
It has been held that if a burn injury is reasonably
foreseeable and the trauma operating on premalignant tissues
produces a cancer, the defendant is liable for the latter
development since the amount of damage suffered from the
burn depends upon the characteristics and constitution of
the victim: Smith v Leech Brain and Co Ltd (1962) 2 QB 405.
So it would seem to me that the bouts of pancreatitis
constitute a deterioration in the plaintiff's condition for
which damages are recoverable either because they are a form
of worsening foreseeable in a general way or one which is
attributable to the sort of person the plaintiff happened to
be whether this was foreseeable as a possible source of
aggravated damage or not. If because of a predisposition to
it, he had been plunged by the pain of his spinal injury
into incurable alcoholism I cannot see that the defendant
could escape liability for that or any pancreatic damage
which ensued."
34. This is not a satisfactory authority because there was no majority view to support my opinion. But I find the reasoning of Glass JA relevant and useful here. And I respectfully agree with and about that reasoning. There must be room for different opinions. I think that the full recovery idea is sound. It should be adopted. The learned trial judge did adopt it. He should be upheld. On that assumption I cannot say that the total amount awarded is manifestly excessive.
35. But for the allowance for future non-economic loss the point of principle can be put aside. There is, in my opinion, no reason to think that the allowance for future non-economic loss should be reduced in any event. That is to say whether the trial judge assessed on a wrong principle or not.
36. Mr Halliday said:
"We would say that to the extent to which his Honour found
that the plaintiff suffered from eating difficulties and
restrictions of biting hard food, that that component is due
to the temporo-mandibular joint problem and is not related
at all to the problem about which she says she was not
warned, or the trial judge found she was not warned - that
is, numbness to the lips, front of the mouth; such things
that attach to that problem, that is to say, the burning,
the itching to the mouth, the numbness and the blistering
when eating hot food, kissing and so on we would accept
would be a consequence of the numbness, but not that is(sic)
which is related to the back of her jaw, the difficulty
biting on hard food."
37. Compare these disabilities or consequences with the learned trial judge's recital of "principal disabilities" now (see page 17 supra paragraph 2). They may be summarised thus -
- Numbness in and around the mouth,
- Frequent burning,
- Blisters on her lips,
- Drooling,
- Inability to detect food with the tip of her tongue,
- Makeup uncomfortable,
- Itchy mouth (and at right side of face),
- Altered sensation of kissing.
38. There is no real difference. The learned trial judge has for the future assessed damages based on things which happen to be the products of failure to warn. It may seem that $20,000 is generous for those sufferings and loss of amenities. But she can, as the learned trial judge said, expect "to suffer her numbness for the rest of her life". She was 38 years at trial. The allowance of $20,000 is not out of proportion to the loss.
39. Harking back to "past loss", much other than the products of failure to warn were taken into account. I can now say no more than that I think that the learned trial judge came to a conclusion which was not out of proportion to the injury. I think that the award of $20,000 for past loss was within the bounds of a fair and reasonable assessment.
40. I would dismiss the appeal.
JUDGE2 KING CJ In my opinion this appeal should be dismissed. I agree in general with the reasons of Justice Bollen. I would add only a brief caveat on the question of causation. I would not wish to be taken as necessarily assenting to the view that where a patient undergoes an operation which the patient would not have undergone if properly advised as to a particular risk, the patient is entitled to recover damages not only for the detriment against the risk of which he or she was not warned but also for any other detriments resulting from the operation however unrelated to that risk.
2. Cases may occur which will give rise to difficult questions of causation. There may be operations which result in detriments which are quite unrelated to the risk against which it was the surgeon's duty to warn. Those detriments may occur in conjunction with the detriment concerning which the surgeon should have warned. It may be in some cases that the detriment against which the surgeon should have warned does not materialize at all but other detriments against the risk of which warning was given or was not required, do ensue.
3. Strict logic would seem to indicate that if a patient undergoes an operation which he or she would not have undergone but for the negligent failure to warn, any detriment resulting from the operation should be regarded as caused by the negligent failure. It may be argued, however, that that is pressing logic too far and that on grounds of fairness and policy the only detriments for which damages should be allowed as causally related to the failure to warn, are those against the risk of which the surgeon should have warned.
4. I do not think that it is necessary to explore this issue of causation in the present case. The residual disabilities to which the learned trial judge adverted in his assessment of damages for future loss were disabilities against the risk of which the appellant should have warned. There are elements of the assessment of pre-trial damages which are somewhat doubtful but I think that they are sufficiently connected with the risk against which the respondent should have been warned, to regard them, on any view of causation, as resulting from the negligence.
JUDGE3 DUGGAN J In my view this appeal should be dismissed.
2. I agree generally with the views expressed by Bollen J but I also subscribe to the note of caution sounded by King CJ on the matter of causation.
3. In my view a simple application of the "but for" test is not conclusive in a case such as the present where it is suggested that there should be compensation for a detriment other than that in respect of which there was a failure to warn of possible consequences. It is important to bear in mind that the causative link in such cases is the fact of reliance. Rogers v Whitacker (1991) 23 NSWLR 600 at 608, 618. (The issue of causation was not argued in the subsequent appeal to the High Court.) In my view there are sound reasons of policy why that consideration should have the effect of restricting the ambit of damages to sequelae which are related directly to the advice and reliance.
4. However I agree that on the facts of the present case it is unnecessary to resolve this issue.
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