Moore v State of Queensland

[2006] HCATrans 145

[2006] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B75 of 2005

B e t w e e n -

KERRY LEANNE MOORE

Applicant

and

STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 3.19 PM

Copyright in the High Court of Australia

MR K.D. DORNEY, QC:   May it please the Court, I appear with MR P.L. FEELY for the applicant.  (instructed by McInnes Wilson)

MS J.H. DALTON, SC:   May it please the Court, I appear with MR N.R. JARRO for the respondent.  (instructed by Cooper Grace & Ward)

KIRBY J:   Yes, Mr Dorney.

MR DORNEY:   Your Honour, the applicant in this case underwent a sterilisation operation on 21 January 2001 by the application of Filshie clips to both fallopian tubes.  The operating surgeon was found to be negligent by increasing the risk of pregnancy in the placement of the clip on the right fallopian tube.  It was not in issue that the placement on the left was correct.  That risk materialised in the sense that within a period of 12 months from the operation the applicant became pregnant.  At trial, despite finding a breach of the duty of care that the doctor owed to the applicant, it was found that there was no causative link between the breach and damage, in this case of course the pregnancy.

We submit that the important issue in this particular case is the application of what might be called the disentangling of causes, the necessity in this case for an evidential onus to be placed in these kinds of circumstances on defendants such that when properly analysed the case then looks at what is the true cause.  The major decision in the case was given by Justice Keane.  We do not need to go to the matter now, but both the other two judges on appeal found in fact there had been no breach of duty.

If one turns to Justice Keane’s judgment at the bottom of 209, paragraph [24], his Honour, in the last sentence on that particular page, accepts his Honour’s finding that:

his Honour concluded that Dr Hillen –

the operating surgeon –

had breached the duty of care which he owed to the appellant.

He deals with the issue then at page 211 beginning at paragraph [36].  There is reference there to two broad submissions, but we are only concerned in this application with the second.  A couple of lines down his Honour there refers to the second, that:

the basis on which the case was fought, the learned trial judge was bound to proceed from his finding of negligence on Dr Hillen’s part to a finding that this negligence caused the appellant to become pregnant –

One then looks at the next particular paragraph which really is a summary, as the footnote shows, from a decision in both Chappel v Hart and Naxakis, but in particular from Justice Gaudron’s decision in Naxakis and that is:

The appellant relies upon the proposition that where a wrongful act or omission results in an increased risk of injury, and that risk eventuates, the trier of fact is entitled to conclude that the act or omission caused or contributed –

The error, we submit, is then revealed, if one goes to the next paragraph, [38], and down the end of that particular paragraph, the bottom of 211 his Honour says that:

there is no scope for the shifting of the evidentiary onus, for which the appellant argues here, where the inference of causation is contradicted by other evidence which shows that that “breach had no effect”.

Now, we submit that it is important in cases such as this to adopt the approach that Justice Gaudron did in Naxakis and that is that when looking at this kind of issue about the wrongful act or omission resulting in increased risk of injury and the risk eventuating, that one then places upon the defendant this evidential onus.  I take you briefly to that judgment in Naxakis just to demonstrate that point, your Honours.  It is, I understand, the first case on our list.  The passage is brief.  It is on page 279 in paragraph 31 near the end of it.  After referring to the first proposition about the risk eventuating, her Honour says:

And in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in –

no damage.  Now, we submit, the problem is that if there is in truth no direct evidence, and we submit there is, and therefore his Honour Justice Keane was wrong, if one does not approach it through the gate of the evidentiary onus, then one is apt, as happened in this case, to really downgrade the prima facie inference that comes from that first proposition, namely, the risk eventuating from the creation of the increased risk.

KIRBY J:   The trouble though, Mr Dorney, the trouble is that you would really effectively be trying to turn the High Court into a trial court going through all the evidence when the person who was in the best position to weigh up all the points of view, and the medical and expert evidence, including the evidence that there was a very small percentage risk in the international literature, was the trial judge and that really is not our function.  Justice Gaudron was not laying down a principle that is one that resolves every case.  It was laying down an approach to how trial judges should deal with questions of breach and causation.

MR DORNEY:   Yes, your Honour, but that approach must necessarily, from the use of the words that she used, really be stating that the evidentiary onus in a case such as this is the approach through which the trial judge must approach these issues.

KIRBY J:   The trial judge found duty, breach, but no causation.

MR DORNEY:   Yes, your Honour.  That is correct, your Honour.

KIRBY J:   Justice Keane found duty, breach, no causation.

MR DORNEY:   Yes, your Honour.

KIRBY J:   The majority in the Court of Appeal found duty, no breach and therefore no liability.

MR DORNEY:   Quite so, your Honour.

KIRBY J:   So that is where it lies.  But you have not won at either level.

MR DORNEY:   Indeed.

KIRBY J:   You would really be coming up here in a very fact intensive case to have us really re-examine the facts.  That is really not our function.

MR DORNEY:   Except for this, your Honour.  Justice Keane relied upon there being direct evidence of occlusion and that is the wording he used.  In fact, looking at the evidence, there is no direct evidence of occlusion.

KIRBY J:   I thought the sections that were taken by the pathologist did show occlusion.

MR DORNEY:   They did not show occlusion, your Honour.  What they showed was circumstances from which one could infer occlusion.

KIRBY J:   That is the job of the trial judge.

MR DORNEY:   Yes, your Honour, but both the trial judge and Justice Keane on appeal approached that issue as if there was direct evidence of occlusion and therefore never looked at the balancing of inferences and we submit that that is the problem in this case and if one adopts the evidential onus approach, then you do not, if you like, depreciate that prima facie inference that comes from pregnancy as indicative of the fact that the risk did eventuate.  Both pathologists - the pathologist who did the microscopic examination, the one who did the macroscopic examination, both gave clear evidence that one could not see under the clip.

Now, you would need to see under the clip to decide whether occlusion had occurred.  If that is so, particularly where the pathologist who did the macroscopic examination can see that there might have been a microscopic hole in the material under the clip which could mean that that is in fact the passage through which the egg moved to be fertilised, then really you are looking at the case as a matter of inferences.  The judges did not look at it that way neither at first instance nor on appeal.  They looked at simply the fact that supposedly naked‑eye observations of what the clip looked like on the outside, that is, on both sides of it, meant that there was occlusion.  Now, we submit that that is just not correct when one looks at the evidence.

If one looks at the evidence closely and if in fact one accepts, as we submit one should, that no one knows what was under the clip, it was totally necrotic.  So what you had then left is simply this.  No one knows what is under the clip.  You have on the one hand a pregnancy, on the other hand a theory or a vague possibility of what is called a fistula – an abnormal communication between two cavities – and you have some observational evidence about what it might have looked like on the outside of the clip.

Now, balancing those matters into account and taking into account the evidential onus approach, we would submit that that prima facie inference remains as the probable inference, that the observational evidence made by the various practitioners who cannot speak for what is under the clip, that observational evidence does not raise the fistula to an equally competing inference.  If you do not have an equally competing inference, then the prima facie inference that is formed from the evidential onus, pregnancy and the breach, then one leads to a case where the plaintiff succeeds.

KIRBY J:   These seem to me to be arguments to be advanced in the trial or in the Court of Appeal which has functions under its statute to evaluate the facts.  They do not seem to be arguments for the High Court of Australia.  Insofar as there is a principle, Justice Gaudron has expressed her view on it and it is really a matter in each case of the judge of trial drawing out the inferences and the first level Court of Appeal correcting them if the inferences were wrongly drawn or not correctly drawn.  But I just do not see that this is a matter on which we could throw any light of general principle.

MR DORNEY:   But, your Honours, the High Court could, by analysing this correctly, we would submit, and not dismissing, as Justice Keane did, the conclusion that the shifting of the evidentiary onus has no scope for operation in a case such as this.

KIRBY J:   What do you say about the evidence that appeared to have influenced Justice Keane, that there was international statistical evidence in the medical literature of about two in a thousand cases where, though performed carefully, a pregnancy ensues?

MR DORNEY:   Well, your Honour, both experts approached it slightly differently.  The expert called by the plaintiff, Dr Korda, says that they were explicable if proper investigations had been made.  That is, the literature was dealing both with things that had been properly investigated and those which had not been.  Not surprisingly, therefore, at least part of the cases considered by the literature would show inexplicable unproven causes because the investigations had not been thorough.  In a case such as this where the investigations are thorough, then in fact one is not met with that argument that really there is something inexplicable.

On the other hand, Dr Robson, who was the expert called by the respondent, said, really, when you are looking at this issue, it is really a matter of being unprovable.  It was put to him that in fact if occlusion had not occurred then it would not matter about the fistula and he accepted that.  What he said simply was that where you have a circumstance where there is proved occlusion, then in fact a pregnancy would have to be unprovable or one of those statistical matters.  But in this case, of course, we submit, there was neither occlusion proved nor the existence of a fistula, that the examinations done by both pathologists said there was no existence of a fistula.

KIRBY J:   As you say, they could not get under the clip and therefore they would not know exactly what happened so it necessarily is a matter of inference and the proper person to draw the inference ordinarily is the primary judge, unless you can point to some error that the primary judge made.  It is a matter of looking at the entirety of the evidence.

MR DORNEY:   Indeed.

KIRBY J:   You laid a lot of emphasis on the positioning of the clip and you appear to have got up on that with the primary judge and Justice Keane.  You make some criticism of the majority in the Court of Appeal for tackling that.  Was that issue argued in the Court of Appeal or not?

MR DORNEY:   No, your Honour.  There was no notice of contention and there was no oral argument on it.  Now, it is sought to be explained by our learned friends on the basis that there are certain cases – I think Bennett and Quigley may be two examples – where in fact there is a merging of the issue of causation with breach, but those cases simply concerned something like an employer failing to warn and there being no evidence that the warning might have been taken notice of.  One can see in those sorts of cases that you might have a blurring, but, we submit, in this case there is no such issue.  It really is, is there a breach and, if so, is there a causative link between that breach and the pregnancy?

Your Honour, we cannot put the argument any better than saying that both at first instance and on appeal the judges did not, we submit, fully understand the nature of the direct evidence that they called of occlusion when, in fact, there could be no direct evidence of occlusion.  One would be left at the end of the day with a matter of inferences and that is where, with respect to that, the matter of the evidentiary onus, in fact, has a part to play because establishing that prima facie inference, we would submit, it is not displaced by other inferences unless the Court at the end of the day considers that is so.

Your Honour, I do not think we can help the Court any further unless there are some other particular issues that wish to be raised.

KIRBY J:   Yes, thank you.  Now, Ms Dalton, what do you say about the suggestion that the issue that appeared to have been determinative for the majority in the Court of Appeal was not really raised before that court?

MS DALTON:   Your Honour, at trial my side ran both the breach and causation point.  We lost on the breach point.  We did not put in a notice of contention in the Court of Appeal, so the argument in the Court of Appeal – certainly the written argument was confined to causation.  Justice Williams I think aired his ‑ ‑ ‑

KIRBY J:   Can I just explain.  It is just a little concerning that two of the three judges of the Court of Appeal appear to have, as it were, focused their attention on a matter that was not really in issue before them.  Can you point to anywhere where it is inevitable in their reasoning that they did address the matter which was in issue before them, which was causation?

MS DALTON:   Yes, your Honour.  It is the same factual question, whether you characterise it as breach or causation.  It is the same factual question, and that is, was there sufficient evidence of occlusion to satisfy the trial judge, because Justice Williams’ characterisation of breach is that the only duty the doctor had was to fully occlude the tube.  Therefore, the tube was fully occluded, there was no breach.  So, yes, it is a different characterisation legally, but factually it is exactly the same characterisation.  Justice Jerrard at 209, paragraph [19] almost says it.  He says:

the evidence overall was sufficient to allow the conclusion the judge drew, namely that the plaintiff had not established a breach of duty by Dr Hillen which had caused to contributed to her pregnancy -

So he characterises it as breach, but both he and Justice Williams are looking for a causative breach rather than – I mean, it is the same factual inquiry.  So, look, it does not matter.  I understand that point that is raised and it is true, we did not put in a notice of contention on the issue of breach.  We ran it on causation only.  But factually it is just the same issue.  So if the Court wanted a vehicle to explore whether it should be properly characterised as breach or causation, this is not is because whichever way you characterise it, it is the same answer.  There was sufficient evidence of occlusion either to meet Justice Williams’s test, if you put it that way, or meet the causation test as the trial judge and Justice Keane did.

KIRBY J:   Now, what do you say about Mr Dorney’s suggestion that the approach of Justice Gaudron is an important point of general principle for the approach of trial judges on drawing inferences and that that was not followed in this case?  I am referring to Naxakis.

MS DALTON:   Yes, it is certainly ‑ ‑ ‑

KIRBY J:   I think her Honour earlier said it in Bennett’s Case and I think this is a theme in a number of Justice Gaudron’s reasons.

MS DALTON:   I think, even going to back to Chappel v Hart you can see it and I agree it is an important principle and I think if you look at what Justice Muir did, although he did not – this is the trial judge.

KIRBY J:   Yes.

MS DALTON:   Without reference to the law, I think you can that he has followed exactly that conventional approach.  He starts at page 192 of the application book and he accepts at paragraphs [53] to [55] that the thing that matters is whether the tube is occluded and, going back to Justice Gaudron’s language, if it is not occluded there is a risk of pregnancy.  There is an increased risk of pregnancy, if it is at the ampullary end, not the isthmic end.  He then says, all right, it is at the wrong end, it increases the risk.  That is the evidence I accept, now I will have a look at the evidence as to occlusion, which really is exactly consistent with Justice Gaudron’s approach. 

He recognises that he may, in the Betts v Whittingslowe sense, draw an inference against the defendant.  He may say there is causation proved.  He does not because he goes on to look at what he calls the strong body of evidence, the three doctors:  the doctor who put it on knowing it was an odd place to put it on so took extra care and made an unusual note; the doctor who cut the tube out later who is the director of gynaecology at that hospital and said he was particularly interested to see what had happened.  It is wrong to say there is no direct evidence because that doctor, Dr Vaughan, at page 23 says at about line 40:

So when I looked at both tubes –

this is having taken them out of the patient –

I was very interested to see, and I was in no doubt in my mind that the tubes had been clipped and the lumen, or the hole in the tube, was completely obstructed by the clip on both tubes.

Well, there is direct evidence.  Dr Milne, the pathologist also gives direct evidence.  He says exactly the same thing that to his macroscopic but very detailed examination the entire lumen was occluded.  So that is direct evidence of occlusion.  The other piece of evidence which I admit is not as strong but it is still, I think, properly classified as direct rather than circumstantial evidence is the evidence of Dr Hillen who applied the clips who said, “Look, I knew I was putting it in an odd place, so I took particular care and I made a note in the chart.”  He spelt it wrong.  He put “completed occluded”, but he said, “I meant completely occluded.” 

So that is three pieces of strong direct evidence, two pieces of circumstantial evidence; the statistical evidence that your Honour has mentioned to Mr Dorney and the evidence again of a general nature that if pregnancy occurs within a year – this is from Mr Dorney’s expert – you probably have put the clip on the wrong place, there has probably been a failure of the operation.  If it is after a year, it is probably due to something like a fistula happening because of the time it has taken to become pregnant after the operation.

So I agree that Justice Gaudron’s principles are very important.  In my submission, the trial judge has taken an approach exactly consistently with them and when you look at the evidence, the three pieces of direct evidence and the two pieces of circumstantial evidence, there was a strong factual basis for what the trial judge found.  Your Honour’s observations to Mr Dorney are quite correct.  This is a factual case.  There is no demonstrable error of law and insofar as there are in a way interesting questions of law which are rearing their heads, this is not a vehicle because whichever way you decide those questions of law, this case is going to fall

factually and the outcome is going to be the same.  Unless your Honours have anything further.

KIRBY J:   Yes, thank you, Ms Dalton.  Yes, Mr Dorney, anything in reply?

MR DORNEY:   Yes, just very briefly, your Honours.  This pregnancy did occur within the 12 months and there is no doubt about that, so it falls in fact within Dr Korda’s approach that if it does it is more likely in fact to be non‑occlusion of the clip.  The second thing is, my learned friend made the same mistake again about direct evidence.  The direct evidence she talks about is simply naked‑eye observation of what was outside the clip.  It does not prove what was inside the clip.  It is, we concede, evidence from which one can draw inferences, but this was the very point that we were making ‑ ‑ ‑

KIRBY J:   Yes, we understand that point of distinction.

MR DORNEY:   Yes, thank you, your Honour.  There is nothing else, your Honour.

KIRBY J:   Yes, thank you very much, Mr Dorney.

There was a difference within the Court of Appeal of Queensland from which this application comes as to whether the primary judge had erred in finding a breach of the duty of care on the part of the surgeon who applied the filshie clip to the applicant.  Justices Williams and Jerrard found that there was no such breach.  Justice Keane found that the contrary conclusion had been open at trial to Justice Muir in the Supreme Court of Queensland.  However, this division of opinion, and the criticisms of how it came about before the Court of Appeal, do not ultimately matter if there was no error in the unanimous view of the Court of Appeal affirming the primary judge that any such breach was not the cause of the applicant’s unexpected pregnancy.

In our opinion, no error has been shown in that conclusion.  The law that was applied at trial is well established.  There was sufficient evidence from which it could be concluded that, despite the positioning of the clip, total occlusion of the fallopian tube was achieved.  The applicant’s pregnancy was not, therefore, caused by the positioning of the clip.  It was just one of those rare events described in the international literature – two in a thousand operations – where an unexpected pregnancy occurred.  At least this was a conclusion open to the Court of Appeal, properly performing its functions on the appeal.

There are, in our view, insufficient prospects of success to warrant the grant of special leave.  Special leave must therefore be refused.  The applicant must pay the respondent’s costs.

AT 3.46 PM THE MATTER WAS CONCLUDED