Lanzer & Anor v Patterson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3742 of 2005

DANIEL LANZER and DERMATOLOGY & COSMETIC SURGERY SERVICES PTY LTD
	Appellants
V
DONNA PATTERSON	Respondent

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JUDGES:	WARREN CJ, BUCHANAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2006
DATE OF JUDGMENT:	22 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 45

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Torts – Patient’s proceeding against medical practitioner – Breach of agreement and breach of common law duty of care - Trial by jury – Application by plaintiff to amend statement of claim in course of defendants’ case – Circumstances lately ascertained – Issues raised by proposed amendment – No error by judge in ruling that there was evidence to support proposed amendment - Whether judge erred in exercise of discretion in favour of plaintiff – No error in exercise of discretion – Application by defendants at conclusion of evidence that certain issues not be left to jury – Whether judge erred in ruling that there was evidence fit to go to jury on those issues – No error in ruling – Whether judge erred in refusing to re-direct jury concerning the effect of certain evidence given by a particular witness – No error demonstrated, but in any event alleged error not such as required re-direction.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Ruskin QC with Mr D G Brookes	John W Ball & Sons
For the Respondent	Mr R W McGarvie SC with Ms A E L MacTiernan	Clark & Toop

WARREN CJ:

I agree for the reasons prepared by Ashley JA that the appeal should be dismissed.

BUCHANAN JA:

In my opinion the appeal should be dismissed for the reasons stated by Ashley JA.

ASHLEY JA:

Daniel Lanzer and Dermatology and Cosmetic Surgery Services Pty Ltd (conveniently “the Defendants”) appeal against judgment entered against them in the County Court on 10 June 2005 in favour of Donna Patterson (conveniently “the plaintiff”) for $50,000 plus interest and costs.

The plaintiff commenced her proceeding against the defendants[1] by writ filed on 20 September 2002. Her claim, laid in contract and in tort, was for damages for personal injury, and arose out of performance upon her of a medical procedure known as liposuction of the breasts. The procedure was carried out by the first defendant, a medical practitioner – and, as it turned out, also by a second medical practitioner, Sharon Felzen – on 31 August 2000. According to the plaintiff’s claim, performance of the procedure caused her injury, loss and damage.
[1]They were treated at trial and on appeal as a single entity, and I will treat them that way in these reasons.

The proceeding came to trial, before a judge and jury, on 16 May 2005. It ended, 19 sitting days later, with the entry of judgment on 10 June, that being preceded by a jury verdict on 9 June.

The defendants pursue five grounds of appeal.[2] The gist of them is that there were three errors in the conduct of the trial: First, that the judge erred in granting leave to the plaintiff to amend her statement of claim 11 days into the trial – either by

permitting her to amend at all, or at least by not imposing conditions upon the grant of leave. That is the subject-matter of the first three grounds of appeal. Second, that the judge wrongly refused to take part of the plaintiff’s case away from the jury before final addresses and charge. Third, that her Honour declined to correct a short summary of the evidence of a particular witness that she had given in the charge. The summary was said to have been incomplete, and so unfair to the defendants.

[2]1, 2, 3, 4 and 7. Grounds numbered 5 and 6 were abandoned.

In order to understand the matters raised on the appeal it is necessary to consider the pleadings as they stood when the trial commenced, and the course of events and evidence thereafter. To those matters I now turn.

The form of the statement of claim when the trial commenced

The statement of claim, when the trial began and thereafter, was somewhat repetitive; and it was not fully-developed, despite its length and repetition. But the important allegations which it made can be identified as follows:

· The first defendant,[3] as at August 2000, advertised qualifications as a dermatologist, skin cancer surgeon, and cosmetic laser and liposuction surgeon. But in fact he held no specialist surgical qualification.
[3]It was common ground at trial that he was the employee of the second defendant.

· On 1 August 2000 the plaintiff attended the first defendant, having first obtained from the defendants an article written by the first defendant concerning breast liposuction; and having contacted two former patients whose names had been provided by the defendants as referees.

· On 1 August 2000 the plaintiff told the first defendant that she wanted to have her breasts reduced for physiological, not cosmetic, reasons; that she had considered reduction mammoplasty but was concerned about how much time such surgery would cause her to lose off work; and that she had read material published on the internet concerning breast liposuction and comments by the defendants pertaining thereto.

· At that consultation the (first) defendant advised her, inter alia, that mammograms were required before and after liposuction; and gave her a consent form for signature.

· The (first) defendant did not inform the plaintiff, then or at any time, and by any means –

“(a)that some types of breasts were not amenable to reduction by liposuction;
(b)that anything but fatty tissue would be removed from the breasts;
(c)that the procedure could be associated with a prolonged period of pain;
(d)the her period of recuperation and return to employment could be more than 3 days.”

or that the procedure could -
“(a)     cause extreme pain;
(b)     cause the formation of cysts and/or excessive fibrotic tissue;
   (c)     result in the regeneration of breast tissue.”

· The defendants did not advise the plaintiff at any time –

“(a) of the results of the pre-operative mammogram;

(b) that the results of the mammogram indicated the presence of dense tissue, which might influence the success or otherwise of the procedure, as recommended.”

· A pre-operative mammogram demonstrated the presence of dense breast tissue – a contraindicator for liposuction; but the (first) defendant failed to properly interpret the mammogram; or to discover the situation by adequate physical examination.

· On 31 August 2000 the first defendant performed liposuction on the plaintiff’s breasts – this involving the instillation of fluid into the breasts and then the extraction of fluid and breast tissue – intendedly fatty tissue, but in this instance other tissue besides.

· The plaintiff suffered injury and adverse effects of which she had not been warned, the latter including:

“(i) extreme pain;
(ii)formation of cysts and excessive fibrotic tissue in the breasts;
(iii)acceleration of the growth and regeneration of breast tissue;
(iv)impairment extending beyond three days;
(v)incapacity for employment extending beyond three days;
(vi)the need for reduction mammoplasty and removal of breast cystic and fibrotic tissue.”

· The procedure was performed pursuant to agreement, which was partly oral, partly in writing, partly by conduct and partly to be implied. So far as it was oral, it consisted of advice given by the (first) defendant to the plaintiff, and accepted by her, that liposuction was the preferred course of treatment for her presenting problem; whilst its implied terms were that –

“(v)… the procedure would be undertaken without risk of injury or danger to the plaintiff, save and except for post-operative problems which were outlined in the consent document, the internet document, and the advertising document;
(vi)… the procedure and post-operative care was to be performed in a professional manner, with the defendants demonstrating appropriate care for the physical wellbeing of the plaintiff.”

·     The defendants breached the agreement by –
o   Removing tissue other than fatty tissue in the course of the procedure.
o   Not warning the plaintiff that the procedure could cause excessive pain, the formation of cysts and/or excessive fibrotic tissue, and the regeneration of breast tissue.
o   Performing the procedure so as to cause the injury (in which I include the so-called “adverse effects” of which the plaintiff allegedly had not been warned).

· Further, the plaintiff’s injury was caused by the defendants’ breach of common law duty of care owed by them to the plaintiff, the breach consisting, in short, of –

o   Want of advice and warnings.
o   Failure to identify dense breast tissue on the pre-operation mammogram or on physical examination.
o   Performing the procedure at all.
o   Performing the procedure as it was performed in fact.

· The plaintiff was denied the opportunity to make an informed decision whether to proceed with the procedure because she was given wrong advice –

o About its nature.

o   About possible complications.
o   That it was the desirable procedure, although in fact the plaintiff had dense breast tissue.
o   That liposuction, not surgical reduction, was the preferable course.

· Had the plaintiff been advised that the procedure was unsuitable given her dense breast tissue, and/or had she been advised of the material risks associated with the procedure, she would not have consented to the procedure.

· Because the (first) defendant failed to recognize the presence of dense breast tissue and performed the operation instead of referring the plaintiff to a surgeon for reduction mammoplasty, the plaintiff “was denied a valuable chance of a better outcome.”

Out of all this, it can be said that the plaintiff’s pleaded case, though laid both in contract and tort, essentially raised the same allegations. They were, in short, that –

· The first defendant had been negligent in his assessment of the plaintiff’s suitability for breast liposuction. She had been an unsuitable candidate. His negligent advice that she undergo the procedure, founded upon his negligently wrong assessment, had led to the performance of the procedure and to the plaintiff suffering injury, loss and damage in consequence.

· The first defendant had been negligent in performing the procedure itself – at least in removing non-fatty tissue; this being a cause of the plaintiff’s injury, loss and damages.

· The first defendant had not given the plaintiff necessary and accurate information concerning the procedure, its possible complications, her unsuitability as a candidate, and the desirability of her undergoing the alternative treatment of surgical reduction of her breasts. That had two consequences: First, the plaintiff had been denied the opportunity of making an informed decision whether to undergo the procedure. Second, had the plaintiff been told that she was an unsuitable candidate for the procedure, and/or had she been advised of material risks associated with it, she would not have consented to the procedure.

· The first defendant’s negligence in not recognizing that the plaintiff had dense breast tissue, and in performing the procedure, rather than referring her for appropriate surgery, had (at least) deprived her of a valuable chance of a better outcome.

As the trial proceeded, the plaintiff’s case seems not to have been run as one involving a loss of chance. So I will say no more about that last aspect of the pleaded case.

The course of events

The most important evidence in support of the plaintiff’s case was given by the plaintiff herself, and by Donald Marshall, Edward Anstee, and Darren Lockie. Mr Marshall is a highly qualified surgeon. His particular field of expertise is breast reconstruction and breast plastic surgery. He operated upon the plaintiff on 24 December 2002, undertaking a bilateral surgical mammoplasty. He gave evidence of what he found at surgery, and also concerning other aspects of the plaintiff’s pleaded claim against the defendants. Mr Anstee is a specialist surgeon, and a past president of the Australian Society of Plastic Surgeons. His long-time speciality is plastic surgery – including breast reduction. He gave evidence concerning aspects of the plaintiff’s pleaded case against the defendants. Mr Lockie is a specialist radiologist, whose expertise is in breast imaging. He gave evidence concerning the interpretation of pre-operative and post-operative mammograms, and as well concerning ultrasound examinations of the plaintiff’s breasts.

I need not presently refer to the evidence of the plaintiff, or of the doctors whom I have identified. It is enough to say – it was not argued otherwise on the appeal – that there was evidence at the end of the plaintiff’s case,[4] which was capable of supporting findings by the jury that the defendants were in breach of duty – whether in contract or tort – at least in the first and third ways which I have identified; and that each such breach was a cause of injury, loss and damage to the plaintiff.
[4]And at the end of all the evidence.

The plaintiff’s case ended on Friday 27 May 2005. The defendants’ case commenced on Monday 30 May. The opening for the defendants was extremely brief. Counsel asserted, in substance, that evidence would be given that the first defendant was appropriately qualified, that he had made appropriate investigations and given appropriate advice before performing the procedure – a procedure which the plaintiff wanted done, having earlier made her own researches – and that the severe and prolonged pain of which the plaintiff had complained was difficult to explain; and in any event – if attributable to the procedure – was outside the range of foreseeable consequences.

Dr Lanzer was the first witness called in the defendants’ case. He described tumescent liposuction of the breast. It involves putting large volumes of extremely dilute local anaesthetic into fatty tissue, using a micro cannula – “a tiny little needle” – and then using another cannula to withdraw some of the fluid, together with fat, by application of negative pressure. It is a procedure which is repeated many, many times upon each breast – apparently, thousands of times in all.

The doctor described the details of the procedure performed on the plaintiff. So far as I can see, he made no reference to Dr Felzen until reading a note which she had made on 1 September – that is, post-operatively. That note recorded the plaintiff’s complaint of tenderness, and of her being worried.

It is true that Dr Lanzer identified in his evidence “the micro cannulas[5] that we used on” the plaintiff. But he had earlier mentioned others who were present during the performance of the procedure; and the plural “we” was not plainly a reference to Dr Felzen, still less an indication of the role which she had in fact undertaken.
[5]Or an identical set.

In cross-examination, Dr Lanzer was taken to parts of an article, of which he was the author, that had been posted on the defendants’ website. The plaintiff’s solicitors, it appears, had downloaded parts of the article on 24 May 2005. The article, dated November 2002, reported upon 250 tumescent liposuctions performed by Dr Lanzer between 1999 and 2002. It referred, inter alia, to “two surgeons simultaneously operat[ing] from each side of the table, mirroring each move”. Dr Lanzer said that this was the way in which the procedure had been performed upon the plaintiff. It had involved the two doctors simultaneously performing the procedure on different breasts – and “swapping” from one breast to the other each 5 -10 minutes. The other doctor had been Dr Felzen.

In other evidence given at this stage in his cross-examination, Dr Lanzer said that he had told the plaintiff that two surgeons would be involved in carrying out the procedure upon her. He gave that evidence in reliance upon his notes. They relevantly said: ”4000 600 300SF.” “4000” turned out to be the defendants’ share of a $4900 overall charge, “600” a reference to the anaesthetist’s fee, and “300” a reference to the fee payable to Dr Felzen. The witness could not recall whether he had told the plaintiff anything about Dr Felzen’s background, or what sort of function that doctor was going to perform.

It was when cross-examination had proceeded so far that counsel for the defendants objected to “this line of questioning”. He did so on the basis that it was not relevant to any of the pleadings, or to the way that the plaintiff’s case had been put at trial. His objection led on to protracted submissions, and to the amendment which is at the heart of the first three grounds of appeal.

The permitted amendments

Before referring to the competing submissions – at trial, and then on appeal – it is desirable to outline the amendments which the judge permitted the plaintiff to make. The allegations of central importance were these:

(1) The second defendant had “employed or engaged” Dr Felzen.[6]
[6]This seems not to have been an issue at trial. The matter seems to have proceeded on the footing that the second defendant bore responsibility for the acts and/or omissions of both Dr Lanzer and Dr Felzen. Concerning Dr Lanzer, see paragraphs 1(ii) and 1A(ii) of the Further Amended Statement of Claim. Concerning Dr Felzen, see paragraphs 1A(ii) and (iv).

(2) The defendants had not at any time advised the plaintiff that a doctor other than Dr Lanzer would perform the procedure.[7]
[7]Further Amended Statement of Claim, paragraph 8(e).

(3) Liposuction was performed by Doctors Lanzer and Felzen, the plaintiff having neither been advised that Dr Felzen would be performing the procedure, nor consenting to that doctor’s participation therein.[8]
[8]Paragraph 16(b),(c).

(4) It was an implied term of the agreement between the defendants and the plaintiff that Dr Lanzer should perform the procedure.[9]
[9]Paragraph 20, Particular(viii).

(5) The defendants breached the agreement.[10] One aspect of the breach (and as well an asserted particular of breach of common law duty), was that the defendants permitted Dr Felzen, whose identity, qualifications and skill level were unknown to the plaintiff, to perform a “new” procedure despite the implied term that Dr Lanzer would perform it, and despite the plaintiff having relied upon Dr Lanzer’s expertise and representations.[11]
[10]Paragraph 21.
[11]Paragraph 27, Particular (c). The Particulars to that paragraph are described as “Particulars of Negligence and Breach of Agreement”.

(6) The liposuction was negligently performed by Dr Felzen.[12]
[12]Paragraphs 17, 22, and particular (a) to paragraph (27).

(7) The plaintiff was wrongly advised who would be performing it the procedure, and so was denied the opportunity to make an informed decision whether to proceed with it.[13]

(8) Had the plaintiff been informed that Dr Felzen was to perform a significant component of the procedure, she would not have consented to undergo it.[14]

[13]Paragraph 26(vi).

[14]Paragraph 28(b).

Submissions at trial concerning the application to amend

I turn to the submissions which were made at trial. There was considerable argument at the outset, before the proposed amendments were formulated, upon the question which party had concealed its position from the other. For the plaintiff, counsel submitted that Dr Felzen’s role – ascertained as a matter of inference when the part-article published on the defendants’ website was downloaded on 24 May 2005 - had been specifically illuminated by the questions asked of Dr Lanzer in cross-examination. The role performed by Dr Felzen, counsel submitted, had not been disclosed by the circumstance, of which the plaintiff had been aware before the procedure was performed, that whilst the defendants were going to charge $4000 for Dr Lanzer’s work, another doctor was to be involved at a fee of $300. Neither had it been disclosed by Dr Lanzer’s instructions to his solicitors, which made no pertinent mention of Dr Felzen.

Then, as to the uses to which the plaintiff sought to put the fact of Dr Felzen’s substantial involvement in the performance of the procedure, plaintiff’s counsel referred to “the way it was undertaken”, to “breach of the contractual arrangement, that was to be with Lanzer”, and to “the question of competence”. In the last-mentioned connection he referred to Dr Felzen’s revealed involvement as indicating “an explanation of the scar tissue and cystic formations damage”. He also mentioned, in substance on a number of occasions, “the question of informed consent as to who was going to do the operation.”

For the defendants, counsel submitted that the subject-matter of the cross-examination was not pleaded. This was just a recent invention or addition to the plaintiff’s case. It was unfair, and an ambush of his clients. The plaintiff’s side had downloaded the article on 24 May, but had not sought use the material until cross-examination of Dr Lanzer on 30 May. There had been no application to amend the statement of claim in the interim. To meet the suggestion that the defendants had obscured the true position, counsel submitted that the plaintiff could have “asked for discovery” and “asked for this sort of material”.

Concerning amendment, counsel for the defendants said this:

“So first things first; we need a amendment to the pleadings to make it relevant, and then we have to – and in my submission, this trial can’t go on with an amendment of that sort.”

There the matter stood on the evening of 30 May. The next morning, counsel for the plaintiff applied to amend the statement of claim. He intimated that, contrary to what he had said the previous day, he would seek to recall his client - but only “on the issue of informed consent”, which he said was “a very succinct issue as to whether she would have received the surgery had she been told that Dr Felzen was going to perform jointly and severally at least what is up to half the procedure …. “. He informed the judge that he did not seek to lead any further evidence concerning the alleged lack of competence with which the procedure had been performed.

In the submission of counsel for the plaintiff, the issue of informed consent had always been alive. But the statement of claim needed amendment to accommodate the recently-acquired information.

Counsel for the defendants opposed the application to amend. He submitted, in substance, that -

· The plaintiff’s allegation that it had been negligent of Dr Lanzer to permit Dr Felzen to perform a part of the procedure could not be addressed by re-opening the plaintiff’s case and calling the plaintiff. It was a new issue, which had not been addressed by the plaintiff’s expert medical witnesses. He, counsel, was disadvantaged because, inter alia, he had not taken instructions from Dr Felzen. The defendants might need particulars of how it was said that she had been negligent, or how it was said that Dr Lanzer had been negligent in permitting her to participate in the procedure.

· There was no evidence which showed Dr Felzen’s conduct to have been negligent; just as there was no evidence that Dr Lanzer had been negligent in performance of the procedure. The plaintiff’s case was “a guess”, because there was “no professional evidence to support it”.

· The essence of the “informed consent argument” was that had the plaintiff known of the extent of Dr Felzen’s proposed involvement, the plaintiff would not have consented to the operation. But there was no evidence which established a causal link between the putative risk – that is Dr Felzen’s involvement - and the allegedly unfavourable outcome of the procedure. The plaintiff could not bring her case within the framework established by Chappel v Hart.[15] She had to show that she had not been warned of a material risk, which had come to pass in the injury actually suffered. But there was no evidence that Dr Felzen’s involvement had occasioned any material risk to the plaintiff, or that any such risk had materialized in injury.
[15](1998) 195 CLR 232

· The plaintiff should not be permitted to be recalled to give further evidence in connection with the issue of informed consent – that is, insofar as it might relate to absence of consent to Dr Felzen’s participation in the procedure.

· The plaintiff was seeking to raise a new, and probably statute-barred, cause of action.

· The proposed amendments were not bona fide. For that reason the general rule, expounded in Howarth v Adey,[16] that even late-sought amendments should be permitted, was inapplicable.

· If the proposed amendments were to be permitted, then in her discretion the learned judge should compensate the defendants, as it were, by an adjournment with costs.

[16][1996] 2 VR 535.

The Ruling on the application to amend

The judge ruled, having considered the plaintiff’s application, that it should be granted. Her Honour expressed herself satisfied that –

“no documents or versions of Dr Lanzer’s account of events and the procedure itself has ever revealed that he did not personally perform all of the aspiration (sic) of fluid into [the plaintiff’s] breasts or extraction of fluid, fat and allegedly some tissue from them.”

She was not convinced that relevant knowledge could have been obtained merely by reading the downloaded article. So her Honour was satisfied, although the plaintiff had known before the procedure was performed that a $300 fee was to be paid to an assistant of Dr Lanzer, that –
“ … it was not until Dr Lanzer’s answers in cross-examination that the plaintiff’s advisers could have known that a considerable proportion of the procedure on the plaintiff was in fact carried out by Dr Felzen.”

The judge then described the ways in which the plaintiff sought to amend her statement of claim. I think that she did so too narrowly when describing the negligence which the plaintiff sought to allege against Dr Felzen.

In any event, her Honour then turned to the defendants’ arguments why amendment should not be permitted.

She rejected the submission that the proposed amendment was not bona fide, but merely a matter of speculation and desperation on the plaintiff’s part.

Her Honour next concluded that the proposed addition to the particulars of breach of contractual duty and negligence, set out at [20] (5) above, ought be allowed. It did not depend, her Honour said, upon whether or not there was evidence then before the court that Dr Felzen had performed the procedure negligently.

Then the judge addressed what she described as the proposed plea that “the plaintiff was not informed of the role of Dr Felzen and did not give her consent to it.” That was evidently a reference to the proposed plea that the plaintiff would not have consented to undergo the procedure had she been informed of the intended participation of Dr Felzen. Her Honour rejected the defendants’ submission that Chappel v Hart compelled a conclusion that the risk of which warning was not given must be proved to have actually caused the plaintiff’s injury. She concluded also that the evidence, objectively assessed, enabled a conclusion that, had Dr Felzen’s intended role been disclosed to her, the plaintiff would have decided not to undergo the procedure.

That last-mentioned conclusion led on to her Honour rejecting the application by plaintiff’s counsel to recall his client to give evidence “as to how she would have treated the information that Dr Felzen would be performing the operation, as it were, jointly with Dr Lanzer.” The judge said that the intended evidence could “only be reconstruction with the benefit of hindsight”, which would not be determinative; and that the answer to the question must be based on an objective assessment of all the evidence. She added that the importance of the plaintiff’s answer on the question “would be likely to be in some doubt”, and might be capable of “being unfair to the plaintiff herself.”

The judge summarized her reasoning upon the particular matter this way:

“In my view, sufficient evidence going to that question exists to enable an objective finding to be made, while making clear that because of the timing of the new allegation she did not get a chance to say what she would have done. For those reasons, I would not be inclined to give leave to the plaintiff to reopen her case so that she can be recalled to answer those specific matters.”

Upon the question whether the proposed amendments should be permitted, having regard to the lateness of the application, the judge said this:

“The Court of appeal decision of Howarth v Adey makes clear that in balancing whether to allow an amendment of this type I must have regard to what the justice of the case requires, having regard to all the circumstances including the conduct of both plaintiff and defendant and their legal representatives, and of course the stage which the case has reached, and the considerations I have already outlined go significantly to that.
The defendants’ case only commenced yesterday and, although the first defendant’s evidence in chief is over, I can easily have that cured by giving leave for his evidence in chief to be reopened and further matters adduced through him, if that is sought. Other witnesses for the defendants have not yet been called, so their evidence or that of any extra witnesses who might be sought to be called could certainly be adapted to meet the allegations made in the amendments sought.
Weighing up the interests of each of the parties and fairness to both sides in this case, and having regard to those principles that I’ve referred to in Howarth v Adey, despite the fact that we are now many days into this case, I consider that the plaintiff should not be deprived of the ability to introduce through the proposed amendment, allegations arising from the discovery yesterday that someone other than the first defendant performed a significant portion of the liposuction procedure in question.”

The aftermath of the ruling

Having delivered her ruling, the judge then stood the matter down to permit the defendants to consider their position. When the hearing resumed, counsel for the defendants made a number of submissions which, in all, were far from explicit. They culminated, however, in him saying this:

“Well I’m seeking, my first preference is that we have the trial aborted with costs in our favour thrown away so that we can go back to scratch and adequately prepare it. If we can’t achieve a costs order on that role Your Honour, we want to proceed.”
and
“We say that we are severely disadvantaged for the reasons I’ve just outlined, but we would just, if we can’t achieve an abortion of the trial with costs, we will elect to proceed.”

The judge, having also heard counsel for the plaintiff, was not persuaded that what had happened required the trial to be aborted. That led on to an application by defendant’s counsel, agreed to by plaintiff’s counsel, that the application to amend should be made in front of the jury; and to the making of the (successful) application in that way.

Counsel for the defendants made some submissions, on the application to amend, which raised issues of principle: whether a particular proposed amendment was supported by any evidence; and whether a proposed pleading accorded with principle.[17] But I consider that, both on that application and in argument concerning the consequences of permitted amendment, the taking of forensic decisions was largely to the fore. On the defendants’ side, two decisions stand out.
[17]Or, more precisely, with principle as the defendants sought to apply it.

First, at no time did the defendants seek to have the plaintiff recalled – that is, either before or after grant of leave to amend. The only such application was made by counsel for the plaintiff. The fact that the judge ruled against the plaintiff being recalled on the application of her own counsel did not preclude defendants’ counsel making his own application at any stage of the trial.

Second, faced with the judge’s decision to permit amendment, counsel for the defendants only sought that the trial be aborted if that was accompanied by a costs order in his clients’ favour. The circumstances were not such that an order of that kind should necessarily have been made. The fact that the submission was made in such a way does not suggest that the defendants were then unable to meet the “new” case. Had that been the defendants’ situation, one should have expected counsel to have unequivocally sought an order bringing the trial to an end. Had such an application been made and granted, the time would then have come for debate about the incidence of such costs as had been thrown away.

Both of the decisions were readily explicable. It is true that the defendants might have been advantaged to an extent by cross-examining the plaintiff about any additional evidence which she gave with respect to what she would have done had she been told about Dr Felzen’s intended role. But there was the real risk that the plaintiff’s further evidence about that matter might have reinforced other evidence which she had given – that evidence emphasizing the great care which she had taken in investigating whether to undergo liposuction rather than breast reduction surgery, and the importance of Dr Lanzer’s professed expertise in her coming to the decision which she did.

More generally, it was a risk worth taking to proceed with the case on the footing that the plaintiff was not to be recalled, and that no application was otherwise being made to re-open the plaintiff’s case. It remained open to the defendants to meet the overall enlarged case by evidence, if they so chose; and they did. It was open to the defendants to later contend, and they did, that there was no evidence to support that enlarged case. It was also open to the defendants to submit to the jury, if the enlarged case was left open, that it was not supported by any evidence; and indeed the defendants’ counsel made such a submission. Further still, it was open to the defendants to submit to the jury that the enlarged case was a desperate beat–up of a weak case; and indeed their counsel did so.

Grounds of appeal 1, 2 and 3

What I have said thus far sets the scene for considering the first three grounds of appeal, which were as follows:

“1.The learned trial Judge erred in law in permitting the respondent to amend further her amended statement of claim (‘the further amended statement of claim’) on 31 May 2005 in circumstances where:
(a)the respondent had closed her case;
(b)no further medical evidence was to be called by the respondent;
(c)the learned trial Judge refused leave for the respondent to be recalled;
(d)the learned trial Judge prevented appellants’ Counsel from cross-examining the respondent further in respect to the issues raised in the further amended statement of claim;
(e)the learned trial Judge ruled –
(i)that it would have been prejudicial to the respondent to have been recalled;
(ii)the respondent only learned of the role of Dr S. Felzen in the procedure on 16 May 2005 by accessing the website of the respondent.

(f)there was no evidence before the jury that:
(i)Dr S. Felzen was negligent in the performance of the procedure;
(ii)the role of Dr S. Felzen in the performance of the procedure materially added to the risk of the procedure;
(iii)the respondent would not have consented to the procedure had she known fully of the role of Dr S. Felzen in the procedure.

2.Having permitted the respondent to rely upon the further statement of claim, the learned trial Judge erred in law in refusing to accede to the appellants’ application that the trial be aborted and the proceeding be adjourned for further hearing to a date to be fixed.
3.The learned trial Judge ought to have refused the application by the respondent to amend further her statement of claim in the form of the further amended statement of claim:
(a)in the circumstances of the trial;
(b)when there was no evidence to justify the amendments contained in the further statement of claim;
(c)when the respondent could have accessed the information upon which she claimed to justify the amendments contained in the further statement of claim before the trial commenced.”

Counsel’s submissions on the appeal

According to defendants’ counsel, leave to amend should not have been granted, without aborting the trial, where –

o The judge refused to allow the plaintiff to be recalled.

o The plaintiff’s experts had already given their evidence.

o There was an absence of evidence that could support there proposed enlarged case.

The result of the amendment in such circumstances, counsel submitted, was a miscarriage of justice. The situation was the obverse of that which was considered in Howarth v Adey. The defendants were unfairly deprived of the opportunity of testing the plaintiff in the witness box as to the alleged implied term of the agreement that Dr Lanzer perform the procedure.

Counsel attacked the judge’s reasoning. He argued that her Honour had assumed, wrongly and unfairly, that the plaintiff only came to know of Dr Felzen’s true role when the article was downloaded. The judge had concentrated upon unfairness to the plaintiff, instead of considering the overall justice of the matter.[18] She had wrongly given weight to her perception that any further evidence of the plaintiff would involve hindsight and reconstruction - although that was the stuff of every informed consent case. She had wrongly assumed that Dr Felzen’s involvement involved a “risk” to the plaintiff. But that was not so, as the plaintiff’s counsel now conceded. Crucially, she had refused to permit the plaintiff to be recalled. So there could not be put to her, inter alia, evidence given as to Dr Felzen’s very considerable skill and experience; nor the advantage that, with two doctors performing the procedure, the period of anaesthesia would be the less – so decreasing risks associated with the procedure. Finally, the judge had been wrong in saying that informed consent involves objective assessment. Rather, the risk is subjective to the plaintiff.[19]
[18]Counsel referred to and relied upon the judgment of Winneke P in Howarth v Adey at 541, 542 and 544-545.
[19]Counsel cited Rosenberg v Percival (2001) 205 CLR 434 and Secretary to the Department of Natural Resources and Energy v Harper [2000] 1 VR 133.

Counsel for the plaintiff, responding to those submissions, contended that the defendants always had – but the plaintiff did not have until very late in the piece – full knowledge of Dr Felzen’s involvement in the performance of the procedure. It was the plaintiff who had been placed at a disadvantage, made worse by the judge’s refusal to permit the plaintiff being recalled. The defendants’ case had been further advantaged by leave being granted to them to recall Dr Lanzer to give evidence-in-chief concerning Dr Felzen’s qualifications and expertise, and concerning the plaintiff’s necessary knowledge of Dr Felzen’s involvement. Again, the defendants had been able to call evidence as to the role that an assistant might play in performing the procedure, and as to the potential or actual benefits of that assistance.

Then, having submitted that –

“ …notions of material risk and informed consent, which were referred to at the trial are, properly understood, not relevant to the amendments involving Dr Felzen. Dr Felzen was in no sense a ‘risk’ material or otherwise, of the procedure against which Dr Lanzer failed to warn”,
and that –
“her involvement, in essence, was a breach of an implied term of a contract made by Dr Lanzer to provide his personal liposuction services to the [plaintiff]”,

counsel referred to the plea that the plaintiff would not have consented to the procedure had she been informed that Dr Felzen was to perform a significant part thereof. The plaintiff’s evidence left it open to the jury to infer, counsel contended, that she –

“ … would not have consented to the procedure if a doctor whose qualification and experience she knew nothing about would be performing a significant component of the procedure.”

Her state of mind, counsel submitted, was open to be inferred –
“based on nothing more than the objective facts and probabilities of the case”.[20]
[20]Citing Rosenberg v Percival, ibid, at 449 [44] per McHugh J.

Resolution of grounds 1, 2, 3

In my opinion, in the particular circumstances of this case, the judge did not err in exercising her discretion to permit the plaintiff to amend her statement of claim. Further, her decision to proceed with the trial in the manner that she did was unexceptional.

Concerning the first of my conclusions, the judge was empowered by R 36.01(2) of the County Court Rules of Procedure in Civil Proceedings 1999 to grant a party leave to amend a pleading “at any stage” for the purpose of, inter alia, determining the real question in controversy between the parties. The judge, citing relevant authority,[21] correctly directed herself as to the key considerations which are pertinent to the exercise of the discretion whether or not to grant leave to amend.
[21]Howarth v Adey, supra at 542 and seq per Winneke P.

It is then to be remembered that what is involved is an appeal against the exercise of a judicial discretion. The limits upon the power generally to interfere with a decision of that kind are well known.[22] Courts exercise particular caution in reviewing decisions pertaining to practice and procedure,[23] but where the exercise of a discretion pertaining to a matter of practice and procedure has the capacity to affect substantive rights, this rider to the general approach does or may not apply.[24] In the present case, the defendants appeal against judgment, relying, inter alia, upon a wrong exercise of discretion in the grant of leave to amend. The circumstances seem to fit the situation described by Winneke, P in Howarth v Adey. But nothing turns on it. My conclusion would be the same regardless whether, with respect to the challenge to the exercise of the discretion, I applied the general approach, or the one of greater caution.
[22]See House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ, Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ and at 532-534 per Kitto J, Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
[23]See Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, where Gibbs CJ Aickin, Wilson and Brennan JJ approved a statement to that effect by Jordan CJ in Re the Will of F B Gilbert (Dec) (1946) SR (NSW) 381 at 323.
[24]Howarth v Adey (1996) 2 VR 535 at 542 per Winneke P.

In analysing her Honour’s exercise of discretion, I consider that the following matters are in point. First, I consider that it was clearly open to the judge to find, as the evidence stood when the application to amend was made, that –

· The involvement and extent of involvement of Dr Felzen in the performance of the procedure had only been fully revealed to the plaintiff by the cross examination of Dr Lanzer.

·“No (pre-trial) documents or version of Dr Lanzer’s account of events … (had) revealed“ that he had not performed all the procedure on the plaintiff.[25]

[25]The judge was presumably referring at least to a letter of instruction which had been sent to expert witnesses retained by the defendants, and to the admission in the defence that Dr Lanzer had performed the procedure.

Second, and further to those findings, the submission of the defendants’ counsel at trial as to how the plaintiff could have obtained pertinent information was simply a distraction. Nothing hinted that the suggested enquiry had been necessary. The circumstance known to the plaintiff that $300 was to be paid to a doctor other than Dr Lanzer[26] was not apt to stimulate enquiry. Bear in mind that the defendants’ charge was $4,000. Why, sensibly, should the plaintiff have imagined that a person whose fee was appreciably less than 7.5% of the defendants’ charge would be undertaking, in effect, half of the procedure? Why, indeed, should she sensibly have imagined such a thing even if her solicitors had downloaded the part-article from the defendants’ website at an earlier time than they did?
[26]She also knew that the anaesthetist was to be paid $600, which could only have served to emphasize the small role that might be expected of a doctor who was to be paid $300.

Third, and contrary to the defendants’ submissions at trial, this was not an instance of the defendants being ambushed in the event that amendment was permitted. The circumstances giving rise to the application to amend had long been within the defendants’ knowledge. Indeed, their knowledge of those matters had only been matched by the plaintiff’s knowledge acquired well into the trial.

Fourth, the defendants’ submission that the judge refused to allow the plaintiff to be recalled is correct, but also misleading. The only application to recall the plaintiff was made by her counsel. Counsel for the defendants had the right, had he wished, to apply for the plaintiff’s recall; and the judge must have considered such application. Had the defendants made application to recall the plaintiff, they could have called in aid of that application matters other than those upon which plaintiff’s counsel had relied. It cannot be concluded that, if an application had been made, its fate would have been the same as the fate of the application made by the plaintiff’s counsel. I do not accept, in the event, that the judge prevented defendants’ counsel from further cross examining the plaintiff in respect of issues raised by the amendment.

Fifth, and contrary to the defendants’ submission, in my opinion there was evidence before the court, at the time when the application to amend was made, which was capable of supporting the enlarged case.

· There was evidence from which the jury could conclude that the plaintiff’s contract with the defendants contained an implied term that Dr Lanzer would perform the procedure. The presence of such a term was arguably the necessary consequence of circumstances including Dr Lanzer’s profession of particular expertise, the plaintiff’s contact with Dr Lanzer alone, the plaintiff’s evident reliance upon his advice – the advice of a self proclaimed pioneer – in deciding to undergo this quite new procedure and not surgery of a quite different kind, and the requirement that the plaintiff pay the defendants $4000 for the procedure to be performed.

The defendants were able to argue that no such term could be implied, because the plaintiff had known that another doctor was to be paid $300 in connection with the performance of the procedure. But the significance, if any, of that knowledge in the present context was a question for the jury at the end of the trial, and was not to be confused with the question whether there was evidence to support the particular aspect of the proposed amendment at the time when the application to amend was made.

· There being evidence from which the jury could conclude that the contract contained the implied term now under discussion, there was plainly evidence that the defendants had breached the same, with whatever consequences for damages that might have.[27]
[27]There would at least have been an entitlement to nominal damages, and entitlement to more than that if she established an element of causation analogous to that in tort: Chappel v Hart, supra, at 254, [58] per Gummow J; see also per Kirby J at 270, [93].

· There was evidence from which the jury might conclude that the defendants had been negligent in permitting Dr Felzen to participate in performance of the procedure. The jury had been told that tumescent liposuction was a relatively new procedure; and that Dr Lanzer claimed to be a pioneer and an expert in its performance. Yet, as it appeared, the defendants had entrusted performance of the procedure, in substantial part, to a doctor whose professional qualifications and relevant skills level were unrevealed to the plaintiff. Against that background the procedure, on the plaintiff’s case, had gone badly wrong.

· There was evidence from which it could be concluded that the procedure had been performed without requisite care – that is, distinct from it being negligent of the defendants to subject the plaintiff to the procedure at all. Later I will refer to that evidence. If the jury so concluded, it might have concluded in turn, particularly having regard to Dr Lanzer’s professed expertise, that probably it was the conduct of Dr Felzen which had fallen short of what was reasonably required.

It was open to the defendants, of course, to adduce evidence that Dr Felzen was extremely skilled in performing the particular procedure, that her engagement by the defendants to participate in its performance revealed no want of reasonable care for the plaintiff’s safety, and that nothing she had done had caused injury to the plaintiff.[28] It was also open to the defendants to adduce evidence – going to what was characterised as the issue of “material risk”, and also, it was said at trial, to the question whether the plaintiff would have consented to undergo the procedure had she known of Dr Felzen’s intended participation - that Dr Felzen’s participation had produced actual or potential benefits for the plaintiff’s management. The defendants, indeed, did adduce evidence generally along those lines – although not from Dr Felzen who, without explanation being given, was not called. But the circumstance that such evidence might be adduced does not mean, when the application to amend was made, that there was not evidence which could support the aspect of the amendment now being considered.

[28]Consistently with the defendants’ position that they had not caused the plaintiff any injury.

Sixth, when the application to amend was made, the defendants were only part way into their case. The plaintiff did not seek to recall any witnesses other than the plaintiff. The defendants did not seek to recall the plaintiff or any of the witnesses called on her behalf. The expert evidence earlier called for the plaintiff either supported the enlarged case – so far as it could do so – or it did not. The defendants did not show that they were disadvantaged by the non-recall – it could not be said that there was an inability to recall – any of the plaintiff’s witnesses.

Seventh, being only part way into their case when the application to amend was made, the defendants had an opportunity of addressing the enlarged case without response from the plaintiff’s side. The defendants took that opportunity, being given the benefit of a “free kick” by the learned judge’s refusal of the application by plaintiff’s counsel to recall their client.

Eighth, the submission of plaintiff’s counsel on the appeal that the amendments concerning Dr Felzen did not give rise to considerations of “material risk” and “informed consent”,[29] but rather raised an issue of breach of an implied term of a contract, was, in my opinion, on textual analysis at least largely correct. The amended statement of claim, with respect to Dr Felzen, substantially focused on a number of ways in which the defendants were alleged to have breached their agreement with the defendant.
[29]The term “informed consent” was said in Rogers v Whittaker (1992) 175 CLR 479 at 490 to be apt to mislead, in a passage cited by Gleeson CJ in Rosenberg at 440, [9].

But then, it may be asked, what is to be made of the allegation, in a paragraph of the statement of claim which otherwise raised a plea of so-called want of informed consent, that the plaintiff would not have consented to undergo the procedure had she been informed that Dr Felzen was to perform a significant part of it? The particular allegation, it should be noted, said nothing about “material risk” – by contrast with the “material risks associated with the procedure” elsewhere identified in that paragraph of the statement of claim. It might be concluded that, properly analysed, the pertinent allegation was simply an assertion that the defendants’ breach of contract was causative of the plaintiff’s injury because she underwent the procedure when - absent the breach - she would not have done so, performance of the procedure causing her injury.

But counsel for both sides, and in turn the learned judge, approached the particular allegation as if it raised issues concerning want of informed consent of the different kinds discussed in Rogers,[30] Chappel and Rosenberg. The defendants’ counsel made submissions on the footing that the need for identification of a material risk inherent in proposed treatment made necessary a search for, and identification of a material risk in one doctor rather than another performing that treatment. The question whether there is a true analogy between a risk inherent in proposed treatment and a risk in one doctor rather than another performing that treatment was never adequately explored, however, either at trial or in this court.
[30]Particularly at 489–90.

There is, I think, a real question whether the principles concerning duty and breach which were framed in Rogers and expanded upon by Gummow J in Rosenberg,[31] and the principles concerning causation which were analysed in Chappel and Rosenberg (only for sake of convenience, acknowledging a want of accuracy, I shall refer to them as “the Rosenberg analyses”) could apply by direct analogy to a case where a patient, having agreed with Dr A that he will conduct a procedure, it being important to the patient that the doctor do so, is not told by Dr A that Dr B will perform a substantial part of that procedure - Dr B being unknown to the patient, and it being plain that the patient would not have undergone the procedure had he or she known of Dr B’s intended involvement.
[31]At 453–459, [61]–[81].

Chappel was not a case of that kind.[32] No other authority was cited, at trial or on the appeal, that dealt with circumstances such as I have identified. The formulation of the practical content of the duty of care, and the particular application of general principles of causation which would follow if the Rosenberg analyses did not have direct application, are not matters which could be lightly resolved. It is quite inappropriate that this Court should attempt to resolve them in the particular circumstances of this case.
[32]The characterisation by Callinan J in Rosenberg at 503, [218] of one way in which the “risk” in Chappel could be described does not, in my opinion, tell to the contrary. In Chappel, there was an admitted failure by the defendant to warn of a material risk of injury inherent in the proposed procedure. The patient underwent the procedure and the risk materialised into injury. The plaintiff gave evidence that, if informed of the risk, she would not have consented to undergo the procedure. She supported that evidence by saying that, if informed, she would have sought out the leading practitioner in the field and would have undergone the necessary treatment at his hands later on.

In the event, the defendants’ counsel at trial was correct in submitting, in substance, that the issue considered by Rogers required identification of material risk (which may be identified on an objective or subjective basis), and that, as one aspect of proof of causation, the risk must relate to the injury sustained.[33] But it did not necessarily follow, having regard to the prospect that the particular proposed amendment did not as a matter of principle raise a Rogers issue, that the judge erred in rejecting the second, and perhaps the first of those propositions. This is not to say that the reasons why the judge rejected the proposition(s) – which assumed the applicability of the Rosenberg analyses - were themselves sound.[34]
[33]See, for instance, Rosenberg at 466, [83] per Gummow J.
[34]Despite such rejection, however, in her charge, treating the issue of Dr Felzen’s participation as a sub-text of alleged want of informed consent, the judge directed the jury in the language of risk, materiality of risk, and injury by materialization of the risk in consequence of want of disclosure thereof. That is not to say that her Honour’s characterization of the risk was apt in the context of Dr Felzen’s participation in the procedure.

Ninth, there were two elements within the further submission for the defendants that the judge erred in holding that the question whether the plaintiff would have consented to the procedure had she been informed of Dr Felzen’s intended role was to be determined objectively: First, that the judge in fact made such a determination. Second, that it was wrong in the particular context.

The judge certainly said that any evidence which the plaintiff gave about the matter could only be reconstruction with the benefit of hindsight. Assuming the applicability of the Rosenberg analyses, that was unexceptional.[35] But it is only part of the story. In the context of a Rogers breach of duty, the causation enquiry turns upon whether the particular plaintiff would have consented to the treatment if apprised of the risk. If a subjective approach was equally relevant in the context of the non-disclosure now under consideration, then it would have been wrong for the judge to hold that the response of a reasonable person in the plaintiff’s circumstances should be taken to be the plaintiff’s response. But, as McHugh J opined in Rosenberg,[36] what a reasonable person would or would not have done will “almost always be the most important factor in determining whether the court will accept or reject the patient’s evidence as to what he or she would have done” – though not conclusive of that matter. Note also his Honour’s observation[37] that in “some cases where there is no direct evidence as to what the patient would have done, the judge may infer from the objective facts that the patient would not have undergone the procedure.”[38]
[35]See for instance Rosenberg at 461-463, [87]–[90] per Gummow J at 485, [155] per Kirby J and at 504–505, [221] per Callinan J.
[36]At 443, [24].
[37]At 443, [25].
[38]Neither of the approaches commended by McHugh J involves the adoption of what Kirby J called a “modified objective standard” in Rosenberg at 483-486, [153]-[158].

In the present case, the learned judge referred in her ruling to “an objective assessment of all the evidence as to whether the plaintiff was or was not likely to have consented.” She referred also to “a finding to be made on the objective evidence about whether the plaintiff, in her own circumstances, was likely to have changed her mind … .” In my opinion those passages should not be read as meaning that the plaintiff’s putative response to provision of the pertinent information was to be neither more nor less than the response of a reasonable person in the postulated situation. Rather, I think that her Honour was saying that the decision should be arrived at by considering what the plaintiff would have done, assessed by consideration of the objective circumstances, and not distracted by the evidence, predictable and not likely of great value, which might have been given by the plaintiff had she been recalled.[39] Assuming the applicability of Rosenberg analyses, her Honour did not err. Neither did she prefer a test other than counsel for the defendants submitted was appropriate.
[39]That this is what her Honour meant is made clear by her charge, in which she referred to a “subjective test”, and explained how a body of evidence might give the answer to what the plaintiff’s subjective response to the provision of information would have been.

Tenth, there was evidence from which the jury could have inferred that the plaintiff would not have consented to Dr Felzen’s involvement in the performance of the procedure, had she known of the intended involvement. The evidence enabled conclusions that the plaintiff had been very cautious before deciding to undergo this quite new procedure, and that she had been influenced to do so by Dr Lanzer’s professed expertise, his advice as to the suitability of the procedure in her case, and the circumstance that he would be performing it. The jury might well have concluded that, had the plaintiff been told that another doctor was to take an active part in performing the procedure, she would have decided not to undergo it. It is true that the jury might have concluded, when all the evidence was in, that the plaintiff would probably have consented to the performance of the procedure by both doctors. The jury might have concluded that plaintiff would probably have been persuaded by an account of Dr Felzen’s qualifications and skills that the procedure would be no less safe, or no more dangerous, by reason of that doctor’s intended involvement. It might have concluded that the plaintiff would probably have consented to Dr Felzen’s participation on the footing that, even if the procedure would be less safe by reason of such participation, the period of surgery would be the less, this minimizing a different risk. But the question how the plaintiff would probably have responded to being informed that Dr Felzen was to actively participate in the procedure was one to be decided on all the evidence at trial’s end. It was then for the plaintiff to satisfy the jury that she would have decided not to undergo the procedure had she known about Dr Felzen’s intended involvement.

Eleventh, I reject the defendants’ submission that the learned judge failed to consider the overall justice of the matter, but instead concentrated upon unfairness to the plaintiff. Her Honour, in my opinion, approached the question whether to permit amendment of the statement of claim even-handedly, with the overall justice of the matter to the forefront.

The only reference which the judge made to potential unfairness to the plaintiff was in connexion with the application by plaintiff’s counsel to recall his client to give evidence of what she would have done had she been informed of Dr Felzen’s intended involvement. For reasons that are plain, such evidence was likely to have been useful in different ways to the plaintiff and defendants. What the judge did, by refusing the application, was very probably deny the plaintiff the opportunity of giving favourable evidence upon a fact in issue, and at the same time deny the defendants an opportunity for a credit attack on the plaintiff. Regardless of her Honour’s reference to possible unfairness to the plaintiff, the ruling itself was even-handed and accorded with the justice of the situation. That is the more so when it is remembered that the defendants made no application to recall the plaintiff for any purpose.

I go to the second of the conclusions which I earlier expressed. It can be shortly explained. Counsel for the defendants did not make an unequivocal application that the trial be aborted after the judge had granted the plaintiff leave to amend. Rather, he made a perfunctory and qualified application to that effect, as one of two alternative courses that he proposed. He advanced no decisive argument in support of the trial being aborted. Indeed, as the learned Chief Justice remarked in argument, not even at that point did he contend that there should be a new trial or else he would be shut out from cross-examining the plaintiff about the newly-raised matters.

Further, apart from the fact that counsel for the defendants did not unequivocally apply to have the trial aborted,[40] there were, or the defendants at least very probably thought that there were, considerable advantages for the defendants in the trial proceeding as it did. I have already described those apparent advantages.
[40]Neither did senior counsel for the plaintiff seek to do so. He unsuccessfully applied to have the jury discharged and to have the matter dealt with by the judge sitting alone.

Finally, the stark fact that the trial proceeded without the plaintiff being recalled bespeaks no error. Defendants’ counsel made no submission that he should have an opportunity of further cross-examining the plaintiff, nor made any application to do so. The course that he took is readily explicable. The matters raised for the defendants on the appeal were considerations which might have told in favour of a different forensic decision at trial. They might have influenced the judge to a different decision had they been raised. But they do not show that her Honour’s decision that the plaintiff should not be recalled, in response to application made only by her own counsel, involved an error in the exercise of judicial discretion, when regard is had to the particular circumstances of the trial. That is so although her Honour’s reasons in that connection mentioned unfairness to the plaintiff in the context which I earlier described.

Ground 4

The fourth ground of appeal reads as follows:

“The learned trial judge erred, at the close of all the evidence, in refusing to accede to the appellants’ application to take away from the jury the following matters, namely:
(a)the issue of informed consent with respect to the role played by Dr. S. Felzen in the procedure in circumstances where:
(i)there was no evidence that the role of Dr. S. Felzen increased the risk of injury to the respondent;
(ii)the only evidence was to the effect that the role of Dr. S. Felzen lessened the risk because of reduced time under general anaesthetic;
(iii)there was no evidence that the respondent would not have undergone the procedure if she had known fully of Dr. S. Felzen’s role.

(b)the question whether Dr. S. Felzen had been negligent in the performance of the procedure when there was no evidence to sustain such finding;
(c)the question whether Dr. Lanzer had been negligent in the performance of the procedure when there was no evidence to sustain such finding.”

The contention raised by ground 4(a), in my opinion, should be rejected. That is so for these reasons.

First, the judge dealt with the defendants’ application to take the issue there identified away from the jury on the footing that the Rosenberg analyses applied. That was how defendants’ counsel put it, and how plaintiff’s counsel responded. For reasons indicated, the common assumption may not have been justified. In the circumstances in which the matter was presented to her, not only in point of principle but in its application to the facts, I would not hold that the judge erred by letting the issue identified by the parties go to the jury.

Second, but even if the commonly assumed position was correct, I do not accept that “there was no evidence that [Dr Felzen’s] role increased the risk of injury to [the plaintiff];” and that “the only evidence was to the effect that [Dr Felzen’s] role lessened the risk because of reduced time under general anaesthetic.”[41] Shaping the circumstances in an attempt to fit the Rosenberg analyses, the pertinent risk could be characterised as a risk of damage to breast tissue from performance of the procedure which was the greater by reason of Dr Felzen’s participation in the procedure. That there was such a risk might have been inferred by the jury from the circumstances that the procedure was quite new, that only Dr Lanzer[42] was performing it in Melbourne, that he was (or claimed to be) particularly qualified and experienced in its performance, and that Dr Felzen, for all that she was shown to have participated in performing the procedure on a considerable number of occasions, had no specialist qualification. The fact, let it be assumed, that the overall risk to the patient was reduced because she would not be so long under anaesthesia, addressed a different matter. The former risk was none the less present because the latter circumstance was also present. Further, the circumstance that the jury might not have reasoned to an inference that the former risk existed does not mean that there was no evidence, of the quality described in Naxakis v Western General Hospital & Anor,[43] which could support it.
[41]The pertinent language of the ground of appeal. See [75].
[42]Subject, as it turned out, to Dr Felzen’s assistance.
[43](1998) 197 CLR 269.

Next, it was surely open to the jury to conclude that the risk as I have characterised it, if found to be present, was “material” – whether viewed from an objective or subjective perspective.[44] The plaintiff’s particular approach to investigating and then deciding to undergo this procedure, rather than breast reduction surgery which was a true and available alternative, show why that is so.
[44]In so concluding I have had regard to the explanation of risk and materiality given by Gummow J in Rosenberg at 452–459, [56]–[81], and to the need for caution described by Gleeson CJ in that case at 441–442, [14]–[16].

Finally, and concerning the contention that there was no evidence that the plaintiff would not have undergone the procedure if she had known fully of Dr Felzen’s role, I have earlier outlined the evidence that would have enabled the jury to conclude the contrary at the time when the application to amend was made. That evidence was no less present at trial’s end. There was then evidence, also, that Dr Felzen had often performed the procedure, and that her participation reduced the operation time. The latter evidence was pertinent to the jury’s decision whether the plaintiff, subjectively, would or would not have consented to the procedure if she had been informed of Dr Felzen’s intended role. But it did not mean that the evidence no longer existed from which an inference favourable to the plaintiff could be drawn.

I turn to the contentions raised by sub-paragraphs (b) and (c) of ground 4. In my opinion they should be rejected.

Counsel for the defendants submitted at trial, and in substance on the appeal, that the crux of the case advanced for the plaintiff was that his clients’ breach of agreement and duty was in assessing the plaintiff as being suitable for liposuction when she was not, and in advising the plaintiff to that effect. It was not a case that the procedure itself had been negligently performed. No such case had been opened. No such case had been advanced by the plaintiff’s expert witnesses. Indeed, in cross-examination at least one witness had rejected it. It was inevitable, as here occurred, that performance of the procedure would cause internal scarring.

The learned judge dealt with the submission that the issue of negligent performance should not be left to the jury as follows:[45]

“There is no direct evidence that she, Dr Felzen, caused injury to the plaintiff, but that is not unusual as Justice Kirby with whom Chief Justice Gleeson agreed, pointed out in Naxakis’ case. The evidence here is capable of reasonable conclusions or inferences that: (1) the plaintiff had a considerable proportion of glandular and fibrous tissue in her breasts preoperatively, (2) the aim of the surgery was to substantially reduce the weight as well as size of her breasts, (3) maximum extraction of fat was going to be necessary for the aim to be achieved and would require very extensive intrusion of a cannula deep into her breast tissue not just the subcutaneous fat layer, (4) the skill and experience of the person wielding or manoeuvring the cannula without endoscope, that is as Mr Keenan quotes Mr Marshall ‘flying blind’, was likely to influence the amount of damage or scarring or contact with breast tissue, (5) the plaintiff experienced severe pain from the time of wakening from anaesthetic and ongoing pain and discomfort beyond what was said to be expected by the defendants, and (6) if Mr Marshall’s evidence is accepted, that extensive scarring was in fact caused to this plaintiff’s breasts internally.
It seems to me that a jury could reasonably infer from these aspects of the evidence that there was injury or damage caused to the plaintiff’s breast tissue beyond what was inevitable from any liposuction. The same evidence that the defendants rely upon of there being no reported cases of such sustained pain or scarring leading to fibrocystic disease and breast enlargement, is capable if accepted of supporting a reasonable inference that in this case the procedure was not carried out with reasonable competence. That is a way of saying that proof of negligent performance can in part at least be inferred from the results, just as the defendants argue that proof of suitability of the patient for the procedure is in the amount of fat able to be extracted, that is, in the result.
In my view there is evidence from which the jury could reasonably draw inferences that the performance of the procedure failed to satisfy the reasonable standard of care such that the contribution to that, that is in the performance of the procedure by Dr Felzen which seems to have been substantial, is able to sustain her causative link with it.”

[45]She addressed the matter twice, in almost identical language – once in connection with the informed consent issue, once specifically in connection with negligent performance. The cited passage relates to the first of those issues. But that is of no moment.

Concerning Dr Lanzer, her Honour said this in her ruling:

“Finally, the defendant also submitted late yesterday that I should not leave to the jury an allegation of negligent performance of the procedure at all, whether by Dr Lanzer alone or in conjunction with Dr Felzen, as it was not adequately pleaded, opened nor supported by any evidence. I have just been through the evidence which, if one omits the role of Dr Felzen, outlines the basis on which in my view a jury could reasonably conclude that there was lack of due care in the actual performance of the procedure. As to whether it is adequately pleaded or was opened directly, I am satisfied that it has been a live issue pursued in the plaintiff’s case.”

In my respectful opinion her Honour’s ruling was sound. I would add a few matters.

First, it was not suggested that her Honour misdirected herself as to the appropriate test whether the issue of negligent performance should be left for the jury’s consideration.

Second, the plaintiff’s pleaded case, in its final form, did allege negligent performance of the procedure. That is to be discerned from paragraphs 17, 22 and 27 of the statement of claim.

Third, it is the fact that the plaintiff’s counsel laid emphasis in his opening upon Dr Lanzer’s alleged want of appropriate qualifications, the unsuitability of the plaintiff’s breasts for performance upon them of this procedure, Dr Lanzer’s failure to advise the plaintiff that she was an unsuitable candidate for the procedure, and his alleged failure to fully inform her of risks inherent in the procedure, a procedure which necessarily caused trauma to the breasts. But counsel also proposed, in effect, that Dr Lanzer had extracted not only fat but also an excess amount of breast tissue in the performance of the procedure, something which should not have been done, and which was productive of trauma. That, I consider, opened up an issue of negligent performance of the procedure.

Fourth, there was direct and not inconsiderable evidence to support the first, second, fifth and sixth conclusions which the learned judge held could reasonably be reached by the jury. Further, the third conclusion was plainly open if once it was accepted that pre-operatively the fat content of the plaintiff’s breasts had been low.

Fifth, I consider that her Honour’s fourth conclusion was reasonably open to the jury by inferential reasoning; but that it was not the limit of the available inference. The purpose of the procedure was to extract fat, not breast tissue. Mr Marshall gave evidence that breast tissue is not removed by liposuction. But the evidence of other witnesses, Dr Lanzer included, was that the removal of a small amount of breast tissue is the normal concomitant of the procedure. If there was extraction of a significant amount of breast tissue – and there was some evidence suggesting that this had here occurred – it implied unnecessary trauma to the breast. The interior of each breast was observed by Mr Marshall in the course of remedial surgery. He noted gross scarring and cystic formation. In my opinion it was open to the jury to conclude that this damage was attributable, at least in part, to excessive trauma resulting from negligent performance of the procedure.

Sixth, in my opinion the evidence permitted a conclusion, arrived at by a different route, that the procedure had been negligently performed. The plaintiff gave evidence, which it was open to the jury to accept, that she suffered prolonged pain in her breasts following the liposuction. But according to Mr Marshall’s evidence, liposuction of fatty tissue rarely produces prolonged pain. In circumstances where, on one view of the evidence, the composition of the plaintiff’s breasts had made it particularly important for Drs Lanzer and Felzen to locate and remove all possible fatty material in order to achieve an acceptable result, I consider that the jury could have concluded that the plaintiff’s prolonged pain was a response to damage done by carelessly over-zealous attempts by the doctors to locate and extract fat.

Seventh, I do not accept the defendants’ submission that the plaintiff’s experts rejected a case grounded in allegedly negligent performance itself – not that such a rejection must have meant that the jury could not have been persuaded to the contrary on consideration of all the evidence.

The defendants relied upon cross-examination of Mr Marshall, in which the witness was asked this question and gave this answer:

“Counsel: ‘Nor is it the result of the negligence by the surgeons or problems of the management of the pain’?
Mr Marshall: Yes, I agree with that.”

But it is necessary to understand that the witness was being read sentences from another doctor’s report, and was being asked to comment upon them. The other doctor had been dealing with the issue of complaint by a patient of excessive pain. The report, as counsel’s questions show, took this form:
“The important thing with the excessive pain is that it is not usually associated with specific complications of an operation. Nor is it a result of negligence of the surgeon or problems of the management of the pain.”

That is, the report was addressing the generality; not the plaintiff’s case. To single out the question and answer based upon the second sentence of the report was to cast the matter in a wrong light.

The other witness upon whose evidence the defendants relied in the present connection was Mr Anstee. In cross-examination it was put to him that another doctor would say that various factors pointed to the component performance of the procedure. Asked by counsel if that was a fair statement, the witness said:

“It may be. I don’t know how he means that, but it may be.”

That answer did not carry the defendants very far.
Ground 7

Ground 7 reads as follows:

“The learned trial judge erred in law in failing to correct her summation, in her charge to the jury, of the evidence of Dr Lockie, radiological expert called by the respondent, so as to direct to the jury that Dr Lockie conceded in cross-examination that there was no evidence of scarring on the post-procedure mammogram.”

The judge dealt at some length with Dr Lockie’s evidence about what was demonstrated by pre-operative mammograms. Later in her charge, she mentioned his evidence about post-operative mammograms which had been performed in early October 2001. What the learned judge said about that aspect of Dr Lockie’s evidence was extremely brief:

“Now finally on this issue I remind you briefly or of the brief amount Dr Lockie had to say. He was not asked whether any specks of calcification were visible on the pre-operative mammogram. As to the visibility of scarring on the post-operative mammogram, he said scars were likely to show as white lines radiating to a point on a mammogram, but on the October 2001 mammograms of the plaintiff the tissue was too dense to be able to assess that.”[46]

[46]I have corrected an obvious error in punctuation in the transcript.

That short summary was given in the course of her Honour’s account of evidence given by various medical witnesses concerning the appearance, particularly, of post-operative mammograms.

The first sentence of her Honour’s remarks about Dr Lockie’s evidence was a statement of fact. It referred to the fact that a witness called for the defendants had claimed to identify specks of calcification in a pre-operative mammogram. No other doctor had said such a thing, and none of the doctors called by the plaintiff had been cross-examined to that effect. No exception was or could have been taken to what her Honour said in that connection.

It is the second sentence of her Honour’s remarks concerning the plaintiff’s evidence which the defendants submit should have been the subject of re-direction.

So far as I can see, the witness said nothing in evidence in chief, when commenting upon the October 2001 mammograms, about the presence or otherwise of observable scarring of the breasts.

In cross-examination, however, he was questioned as to whether internal scarring of breasts could be seen on mammograms. The questions in that connection were not all addressed to what might or might not be seen on a mammogram after a liposuction had been performed, which did not simplify an understanding of the witness’s answers. That said, at one point he agreed with counsel that the appearance of the October 2001 mammograms was “that of dense glandular tissue rather than scar tissue.”

In re-examination, the witness described what scar tissue would typically look like on a mammogram. Asked whether he would necessarily be able to identify scarring from a surgical reduction mammoplasty on a mammogram, if “the underlying tissue was very dense tissue, extremely dense as [was] seen on this mammogram”, he replied “you would probably find it very difficult to appreciate any scarring of any cause in a dense breast”. In degree of denseness, he rated the plaintiff’s breasts post-operatively at eight in a scale of 1–10.[47] Further pressed about the issue, he said this:

“ … the denser the breast tissue, the more extensive the trauma would need to be, to be visible because you’re looking for the indirect signs, some indirect signs of what’s gone on. So if you’ve got very dense tissue you may not appreciate small areas of scarring but if you’ve got large areas of scarring, you’d expect to see some distortion within the glandular tissue or adjacent to it.”

[47]Where 10 was maximum density.

As with cross-examination, the questions asked in re-examination did not

always distinguish between trauma to the breast of different kinds when the doctor’s opinion was sought as to what might be seen on mammogram following trauma. That made more difficult an understanding of the import of his answers.

Counsel for the defendants submitted, as I have said, that the judge misstated the effect of the doctor’s evidence in the one sentence in her charge of which pertinent criticism was made. Particularly in light of the difficulties which were created by the way in which cross-examination and re-examination proceeded, it is far from clear to me that the judge misstated the overall effect of Dr Lockie’s evidence. But if she did, any misstatement was marginal, and did not call for a re-direction. I add only that the doctor’s evidence generally made it clear that mammograms have diagnostic limitations; and that in this case there was direct evidence of post-operative scarring and its extent.

Order

In my opinion, the appeal should be dismissed.

[2007] VSCA 45

22 March 2007