Murphy v Mackie

[2002] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2001

B e t w e e n -

JAMES LAWRENCE MURPHY

Applicant

and

WILLIAM MACKIE

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 APRIL 2002, AT 2.03 PM

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC:   May it please the Court, I appear with my learned friend, MS M.L. SNEDDON, for the applicant.  (instructed by Pike & Associates)

MR S.D. KALFAS:   If the Court pleases, I appear with my learned friend, MR M.T. HUTCHINGS, for the respondent.  (instructed by Colin Biggers & Paisley)

GLEESON CJ:   Yes, Mr Brereton.

MR BRERETON:   May it please the Court, in Rosenberg v Percival, this Court revisited the medical practitioner’s duty to warn the patient of material risks.  The rationale for that duty, as previously expressed in Rogers v Whitaker, was repeated by your Honour Justice Gummow at paragraph [63] in these terms:

except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it.  In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended.  But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.”

Your Honour Justice Callinan at paragraph [213] said that:

it cannot be doubted that patients should be entitled to be told, in detail, and in terms that they can understand, of the material risks of the procedures available to them ‑ ‑ ‑

GLEESON CJ:   Mr Brereton, we do not have before us the evidence that was before Judge Black, except in so far as he has repeated it in his reasons for judgment.  Can you tell me whether there was any evidence as to the detail of all the risks that were involved in this procedure – not just the risk that ultimately eventuated, but all the risks?

MR BRERETON:   I think not, your Honour.  I will check that, but I think not.  No, the answer to your Honour’s question is, apart from this particular risk, no.

GLEESON CJ:   Am I right in thinking that one of the risks was death?

MR BRERETON:   Necessarily of any operation, that is a risk which accompanies anaesthesia.

GLEESON CJ:   Yes.  If the surgeon had set out to tell the patient of all the risks associated with the procedure, why would he have limited what he said to this risk?

MR BRERETON:   No one suggests that he would have limited it to this risk, but this was the risk that materialised.  So when one approaches this case we suggest them in the manner in which your Honour Justice Gummow articulated in Rosenberg.  The first question is, what was the relevant risk of the procedure that materialised about which a warning ought to have been given?  The answer is, the relevant risk that materialised here was that of reflex sympathetic dystrophy, or whatever it is now known as, complex regional pain syndrome.

GLEESON CJ:   But if you are looking to see what the patient’s reaction would have been to a warning, you would have to look at everything the patient would or should have been warned about, would you not?

MR BRERETON:   Yes, your Honour, but that is a second step which ultimately neither the trial judge nor the Court of Appeal reached and while it is perfectly true to say that one of the risks would have been death from anaesthesia, then the answer to that is that there is a world of difference to a patient between being told of incidental risks that all surgery has, all surgery carrying those risks associated with anaesthesia and infection, and a particular risk which this surgery has, that it may not only not alleviate the problem which it is designed to meet, but it may even leave the patient in a situation of aggravated disability, and that was the problem here.

Now, the applicant was not warned of that risk of reflex sympathetic dystrophy.  The doctor, whose evidence is summarised at page 5 and the top of page 7, did not claim to have warned him of it.  The trial judge did not find that the doctor had warned him of it, though he did find that he explained that there were some “possible risks” at 8 point 17.  The Court of Appeal accepted at page 17 line 9 that the doctor had not warned the patient of this risk.

The dispositive question in the case in the courts below was whether the doctor was, in effect, exonerated from the duty to warn of that risk by the circumstance that he had secured the patient’s acceptance of risks in general terms.  The trial judge posed for himself, at the foot of page 1, the misleading question:

whether the Plaintiff was warned of risks and/or this particular risk –

and the trial judge’s conclusion at page 8 line 37 was that the doctor gave the patient:

sufficient warning that there were possible risks which the Plaintiff chose not to follow up.

The trial judge decided the case on breach of duty, not on causation, and that finding there followed immediately on a finding commencing at page 8 line 26 that the patient:

was aware there were risks –

unspecified risks –

associated with the procedure, and accepted those risks.

Now, that conclusion was based entirely on the terms of exhibit A, the consent form, and it is necessary to look at the judgment in a little more detail to appreciate how that worked and then its ultimate significance.

CALLINAN J:   Mr Brereton, I had the impression, I must say, reading the judgment at first instance, that that might have been the real issue at the trial, if the trial judge’s judgment is any indication.  The real debate was over whether the applicant had read and understood the form when it had been placed before him and whether any explanation, apart from it, had been offered.  That is the impression one gets, I think, from reading the judgment.

MR BRERETON:   It is certainly an impression which the judgment conveys but, in my submission, it cannot be the whole of the case because it is clear, even from the judgment, that the doctor was cross‑examined as to whether he gave a warning about the relevant risk and accepted that he did not and accepted that he was now giving such warnings after these proceedings had been instituted.

So, aside from the consent form, in my submission, it is clear on the face of the judgment that the claim made went far beyond that and that at the heart of the claim was whether the relevant risk had been adverted to outside the scope of the consent form.  But what was dispositive seems to have been this idea of acceptance of risks. 

At page 2 line 20 the trial judge commenced his analysis of the evidence by referring to the consent form, exhibit A.  Then from pages 2 to 5 his Honour reviewed the patient’s evidence of what was described as the circumstances in which the consent form was signed, referring particularly to the consent form at page 2 line 20, line 46; page 3 line 33; page 4 line 39.  The whole analysis of the patient’s evidence was focused on the circumstances of the consent form.  Next, at page 5 about line 24 through to page 7 ‑ ‑ ‑

GLEESON CJ:   Before you go to that, the evidence at line 15 on page 5 was rejected, was it not?

MR BRERETON:   Yes, your Honour.

GUMMOW J:   Is that not a real problem for you?

MR BRERETON:   No, for reasons to which I will come momentarily, your Honour.  Next, his Honour reviewed the doctor’s evidence of those same circumstances, page 5 to page 7, focusing again on the consent form at page 5 lines 26 and 48.  Then, after reviewing those circumstances, his Honour set out the terms of the consent form at page 7 to page 8 and, finally, his Honour expressed the relevant conclusion at page 8 lines 8 to 30.  The only basis in the evidence for the conclusion at page 8 line 26 that:

the Plaintiff was aware there were risks associated with the procedure, and accepted those risks –

was the terms of the consent form, particularly those terms set out at page 7 line 47.  The acceptance of risks in the consent form has been picked up in his Honour’s ultimate conclusion.  Now, the Court of Appeal held that:

Unless that finding –

that the patient was aware of and accepted those risks could –

be overturned . . . the appeal must be dismissed –

page 17 line 42.  So, the dispositive question in the case was whether the doctor was exonerated from the duty of warning the patient of all material risks by securing an acceptance of risks in general terms.  That question is of general application and importance.  If the courts below are correct, then the standard hospital consent form will be an answer to almost every failure to warn and the rule and the rationale of the rule in Rogers v Whitaker will be severely curtailed.

The decisions below are not correct, essentially for three reasons.  First, the whole rationale for requiring a warning before submitting to surgery is that a meaningful decision about it can only be made on the basis of relevant information and advice.  Before one accepts the risks, one needs to know what those risks are.  A warning in general terms that there are risks, not descending to specific risks associated with the particular operation, does not provide the patient with the requisite knowledge to make a meaningful decision, which is exactly what Rogers v Whitaker was intended to secure.

GLEESON CJ:   Was there any evidence – and I see that there was an expert witness called but I have no idea what he said – that would indicate why, if you set out to warn of specific risks, in this case, you would limit the warning to the particular risk that eventuated?

MR BRERETON:   No, your Honour, and I do not suggest that one would have.

GLEESON CJ:   Do we know then what other specific risks he would have warned about?  We know that the skin graft and the risks associated with that was the subject of some discussion.

MR BRERETON:   We do, your Honour, but beyond that, beyond what the judgment discloses, I do not believe the evidence gave attention to any other risks that would have been warned of.

The second reason is that – and this reverts to something I said a little earlier – whatever might be said about the general risks of operations, anaesthesia, infection and the like, the specific risk that a patient’s condition might not only be not alleviated but aggravated in the specific respect for which treatment is sought, is in a different class even if it can be said, “Everyone knows about infection.  Everyone knows about anaesthesia.”  It must impact on a patient’s mind to be told, “Well, it is known, although the chance is a remote one, that this operation can not only fail to alleviate the problem with your hand, it can leave your hand in a worse condition.”

GLEESON CJ:   I get the impression that Mr Murphy would not have known about anaesthesia or infection.  From what little we know about him from these papers, I would suspect that it is highly unlikely that Mr Murphy understood those things.

MR BRERETON:   That may well be so, your Honour, but the critical question – these cases should be approached from the starting point, was there a breach of duty?  That means, was there a failure to warn of a material risk, which again, borrowing from your Honour Justice Gummow in Rosenberg, a material risk that materialised.    In this case a material risk did materialise.  The question is, was there a failure to warn of it? 

Now, on all the evidence, the answer to that is, yes.  The question then becomes, is it an answer to that to say that he, in general terms, accepted risks associated with the operation?  Our submission is the answer to that must be, no, because you cannot accept risks without knowing what they are, and that is where both judgments below miscarried.

The third reason is that this type of consent is an answer to an allegation of trespass, but it does not excuse negligence.  The only risks which it involves accepting are the sequelae of the non‑negligent conduct of the operation.  It is certainly not an exoneration from the duty to warn of the risks in the first place.

May I then come to the question your Honour Justice Gummow asked a little while ago, following your Honour the Chief Justice’s question about the rejection of the patient’s evidence that he would not have undergone the operation if told that there was any risk, however slight.  The trial judge’s finding about that is at page 8 lines 22 to 26.  That finding, in my submission, in its context, is not the same as a finding that, properly warned, the patient would have gone ahead with the surgery.  Neither the trial judge nor the Court of Appeal ever addressed what the patient would have done had he been properly warned because neither ever gave any attention to what a proper warning was.

In its context, the evidence was a finding that the patient was aware that there were some risks and had accepted those risks – see the consent form.  But that does not involve rejecting the proposition that, properly warned, the patient would nonetheless have gone ahead.

CALLINAN J:   Mr Brereton, was there any evidence about the percentage failure rate of skin grafts?

MR BRERETON:   I think not, your Honour.  There was obviously evidence about the percentage rate of the relevant risk, as I call it.

CALLINAN J:   Yes, I know that.

MR BRERETON:   But I do not believe there was any evidence about the failure rate.

CALLINAN J:   We do not know the relativity of any of these, which had the higher incidence.

MR BRERETON:   That is so, your Honour.  In Rosenberg v Percival there was a positive finding by the trial judge, Judge Gunning in the District Court of Western Australia, that properly warned, the patient would have proceeded.  There is no such finding in this case, and that is the lacuna that makes the difference between what the trial judge rejected here and what the trial judge affirmatively found against the patient in Rosenberg v Percival.  Here, the position is left silent by the two courts below.  The trial judge could have made no such finding because his Honour never turned his mind ‑ ‑ ‑

GLEESON CJ:   Just a moment.  The courts below rejected the only evidence advanced on behalf of the plaintiff in support of the proposition that, properly warned, he would not have gone ahead with the operation.

MR BRERETON:   The plaintiff said, “Had I been aware of any risk at all, howsoever slight, I would not have gone ahead.”

GLEESON CJ:   That is right.  The trial judge said, “I don’t believe you.”

MR BRERETON:   The trial judge rejected that, but that cannot amount to a finding that the plaintiff would have accepted every risk.

GLEESON CJ:   But once you reject that evidence, what is the remaining evidence justifying a conclusion that the plaintiff would not have gone ahead if he had been properly warned?

MR BRERETON:   The trial judge then has to address the situation on the probabilities, formulate what the proper warning was and judge how the plaintiff would have reacted to that proper warning.  That exercise was never undertaken.

GLEESON CJ:   Without having the benefit of any credible evidence of the plaintiff on the subject?

MR BRERETON:   The plaintiff gave evidence which touched on this issue in a number of points, not all of which was rejected.  At page 3, particularly at line 10, there was some evidence which was not the subject of the explicit rejection.  Before the passage that was rejected, which is at page 5 line 17 ‑ ‑ ‑

GLEESON CJ:   It is the bottom of page 4.

MR BRERETON:   The bottom of page 4, thank you, yes.  Page 4 line 50 to the top of page 5 line 9 there is evidence which is not in the particular passage that was rejected.  In my submission, it is important also to focus on the precise terms and context of the rejection.  The rejection at page 8 line 23 is juxtaposed to the finding two lines before “that there were possible risks” and subsequently that the plaintiff had accepted it.

All that the trial judge is doing there, in my submission, is saying, “Contrary to what the plaintiff says, I can see from the form that the plaintiff acknowledged that there were possible risks and accepted those risks.”  This is not a finding that the plaintiff, had he been told that his hand might be worse, would, nonetheless, have proceeded.

In my submission, the result that that all produces is that the case was determined on a wrong basis; that the principle applied by the trial judge and the Full Court exonerating the doctor, in effect, from the obligation to warn of material risks because the patient accepted risks, would severely curtail the operation of an important rule in this area of the law.

For that reason, the plaintiff was entitled to succeed in the Court of Appeal on the ground of breach of duty and he was entitled to have a finding of breach of duty in his favour.  The question of causation was never properly addressed at any level because the trial judge, nor the Court of Appeal, never asked the question, “If given the correct warning, what would the patient have done?”  Therefore, the patient was entitled to a new trial once he succeeded on breach of duty in the Court of Appeal and, while that may be an unfortunate outcome, it is a far preferable outcome to leaving him in the position that he has never had a trial in which the true issues have been addressed.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Brereton.  Yes, Mr Kalfas.

MR KALFAS:   Yes, thank you, your Honour.  Your Honours, the respondent disputes the dispositive question as posed by my learned friend and says that, in reality, the dispositive question in this case was precisely the causation question that arose on the assumption that the material risk had not been warned of.  In other words, the trial judge ‑ ‑ ‑

GLEESON CJ:   Why, when you are addressing the issue of causation, would not the defendant, in a case like this, lead evidence about all the matters that should have been warned about?  For the moment, I cannot understand why, in a case like this, you would assume that if there was to be a specific warning, it would be limited to the risk that eventually materialised.  Now, that would be a matter for expert evidence, I would have thought, but we know that there was another risk that was apparently uppermost in the doctor’s mind, that is, skin grafts and problems associated with skin grafts.  There was apparently discussion about that.

MR KALFAS:   Yes, your Honour.

GLEESON CJ:   We know, although I am bound to say I would rather doubt that Mr Murphy knew, that there was another risk, namely death.  When defendants fight the causation issue on a case like this, why do they not lead evidence of all the things that it would be necessary to warn the patient about, if you were going to tell him of what could go wrong, and then judge the question of whether he would have had, or not had, the operation in the light of all those warnings?

MR KALFAS:   Your Honour, it is not before the Court more than is set out in the trial judge’s judgment, but there were other matters that the plaintiff was warned about.  The plaintiff himself set the bar, as it were, on the causation question by saying that, “If I had been warned of any possibility that I would end up worse from this procedure which I elected to undergo than I, in fact, was before undergoing it, I would not have taken that option.”

CALLINAN J:   The plaintiff really pitched his case very, very high.  In a sense, this is a consequence of that.

MR KALFAS:   Yes, that is correct, your Honour.

CALLINAN J:   By being so categorical, he was not believed.

MR KALFAS:   Yes, and that is essentially – although the trial judge’s judgment is, with respect, infelicitously expressed, that is the way in which he decided the issue and certainly it was the way in which the Court of Appeal understood the dispositive issue to have been decided, because the Court of Appeal expressly did not have regard to the question of materiality and merely looked at the question as one of a determination as to whether or not the trial judge was correct in not accepting that the plaintiff would not have gone ahead if warned of the particular risk.

The question of whether the risk was, in fact, material or not was not expressly decided by the trial judge and was certainly not addressed by the Court of Appeal so that the issue with which the Court of Appeal was concerned was solely the extent to which it could review a determination by the trial judge rejecting the assertion by the plaintiff that he would not have gone ahead.

Your Honours, the consequence of that is that instead of the question that my learned friend teases out from the judgments to the effect that there is some intermediate way of circumventing the clear rule enunciated by this Court as to the duty to warn of material risks, that question does not arise, your Honours, from this case.  This case is simply a question of whether or not the trial judge accepted the assertion by the plaintiff of the fact that he would not have gone ahead with the procedure if he had been warned of the particular risk.

CALLINAN J:   The plaintiff was really saying, “All risks were material in my mind.”

MR KALFAS:   He set the bar higher than was necessary.

CALLINAN J:   Undiscriminatingly he would say, “All risks were material and if I had known of any of them, I wouldn’t have gone ahead.”

MR KALFAS:   Yes, your Honour.  The evidence that was rejected at page 5 lines 10 to 20 is described by the trial judge as a summary of the plaintiff’s position.

GUMMOW J:   So it has to be read back, as it were, with the bottom of page 4 and page 3.

MR KALFAS:   Yes, your Honour, and with the starting point at page 3 line 10.

GLEESON CJ:   And the problem with the bottom of page 4 is that nobody suggests that he should have been told that he would end up like this.  In fact, it would be wrong to tell him that he would end up like that.

MR KALFAS:   Yes.  He could end up like that.

GLEESON CJ:   The doctor would have been out of his mind if he had advised the operation knowing that it would end up like that.

MR KALFAS:   Yes, certainly.  Yes, your Honour.

GLEESON CJ:   It would have been a criminal act.

MR KALFAS:   Yes, your Honour.  The consensual evidence of all the experts that addressed the question was that there was a very small risk, I think something between .3 and .45 of 1 per cent, of ending up with the chronic condition which the plaintiff did ultimately have as an outcome of the surgery.

So the question of materiality certainly was not addressed by the Court of Appeal, it does not arise in this case and you move in the same way as in Rosenberg v Percival, the materiality question did not, on the view of the majority of the Court, need to be decided and the case could be determined in terms of the causation issue.

GLEESON CJ:   Was there evidence, Mr Kalfas, that the doctor actually advised him that the doctor thought it was in his best interests that he should have the operation?

MR KALFAS:   Yes, your Honour, and, indeed, he was referred by a general practitioner to the specialist doctor on the basis that it was something that he ought to undergo.  To put it fairly, the general practitioner who referred him was not his usual general practitioner, but one to whom he had been sent by his employer.  But the only medical advice that he received, both from that general practitioner and from the specialist respondent, was to the effect that it would be a beneficial procedure.

GLEESON CJ:   Now, there was no suggestion that it was negligent of them to tell him that?

MR KALFAS:   No, your Honour. 

GLEESON CJ:   And presumably an evaluation of what his response would have been to warnings about risks would have to be made in the light of that advice?

MR KALFAS:   Yes, your Honour.  There were also a number of matters which did not trouble the Court of Appeal, or they did not come to, but there were a number of objective matters over and above the rejection by the trial judge of the plaintiff’s assertion.  There were a number of objective matters that were relied upon by the respondent going to the proposition that the plaintiff would have proceeded with the surgery if warned of the risk in any event.  For example, he had a subsequent minor procedure in relation to his hand even after the experience of this procedure and there were other like matters.

CALLINAN J:   Those sorts of objective matters were considered to be important in Rosenberg v Percival.

MR KALFAS:   Yes, your Honour.  The Court of Appeal did not get to them in this case but they would certainly squarely arise.  They were posed in the submissions before the Court of Appeal and they would squarely arise.  We would certainly seek to raise them if the Court was minded to grant special leave.

So, in our submission, your Honour, there is no – objectively on the authorities of Rogers v Whitaker and Rosenberg v Percival, it is effectively a two‑step test.  Was the duty to warn of a material risk complied with?  If not, what course would the plaintiff have taken if given such a warning?  There is no intermediate issue such as my learned friend seeks to tease out from the facts of the decisions in the courts below and, in our submission, you do not get to that sort of intermediate question. 

The question is either there was or was not a material risk.  The plaintiff was or was not informed of it and, if they were not informed of it and it was material, then you go straight to the causation issue.  That, in effect, is what occurred here, albeit it does not emerge clearly from the text of the trial judge’s judgment.  That was the way in which the Court of Appeal approached the case and, consistent with the principles enunciated

in Rosenberg v Percival, they did not seek to disturb the trial judge’s rejection of the way in which the plaintiff had addressed, in his evidence, the causation issue.  Unless there is anything further, your Honours.

GLEESON CJ:   Thank you, Mr Kalfas.  Yes, Mr Brereton.

MR BRERETON:   Your Honour Justice Callinan suggested the plaintiff pitched his case very high.  That is not untypical of these cases and plaintiffs often pitch their case at that level.  Often when they do so, they are believed and the acceptance of their subjective belief, if accepted, is dispositive of the case.  But this Court has said more than once that such statements have to be examined with scrutiny and weighed against the objective circumstances and we readily accept that.

But that also has this consequence.  The fact that the plaintiff is not accepted at his highest does not mean total failure on the question of causation.  A judgment can be made by a court that notwithstanding that the plaintiff is rejected on saying, “I would have gone to Bourke had I been told the slightest thing about risk”, does not mean that the court then finds that he would not have gone to Bourke, or run to Bourke, had he been told of certain material risks.

CALLINAN J:   But it makes it much harder for the court.

MR BRERETON:   I accept that.

CALLINAN J:   The Court really has to speculate then about what risks might or might not have really been acceptable.

MR BRERETON:   And the Court has to judge objectively and on the probabilities what, given a proper warning, the plaintiff would have done.  Now, the plaintiff was entitled, if he established breach of duty, to have that exercise undertaken in this case.

GLEESON CJ:   Now, on a new trial the plaintiff is stuck with this evidence.  He cannot change his story on the new trial, can he?

MR BRERETON:   He is stuck with that evidence, in the sense that he certainly cannot say, “Well, I wouldn’t have accepted any risk at all.”  He cannot change his position as far as that is concerned, but he can, for example, adduce further evidence as to what the appropriate warnings would have been, what other risks might have been adverted to and, indeed, the defendants can adduce evidence as to what  ‑ ‑ ‑

CALLINAN J:   Or present a case on the facts in the alternative.  That is what you are really suggesting.

MR BRERETON:   With respect, no, your Honour. 

CALLINAN J:   “My first position is I wouldn’t have accepted any risks at all, but if I’m not believed on that, there might be some that were unacceptable and some that were acceptable, and this falls into the category of the former.”

MR BRERETON:   But that is not uncommonly a situation in which a plaintiff, or at least a plaintiff’s counsel, finds herself or himself in this sort of case.

CALLINAN J:   That is why the case is lost.

MR BRERETON:   Not necessarily, because often, with respect, the court may say, “It is too much to accept that the plaintiff wouldn’t have accepted any risk at all.  Everyone knows that there is a risk of death from anaesthesia” ‑ ‑ ‑

GLEESON CJ:   I do not accept that, if I may say so.

MR BRERETON:   I understand that, your Honour.  Dr Percival was an extreme case, because of her medical knowledge in any event, but it was easy to accept in her case.  Obviously, she knew that there were significant risks.  The point here is that this plaintiff was entitled to have the objective exercise of saying what would he have done, properly warned, undertaken ‑ ‑ ‑

CALLINAN J:   That just sounds formulaic to me.  It does not seem to me to come to grips with the facts of the particular case.  What your submissions really amount to are that you have to give the warnings whether they are going to be – or you are going to have to give the material facts even if they are not going to impress a person in any way at all, not going to alter his or her opinion.  In this case, any facts, on your client’s case, would have altered his opinion or his intention.

MR BRERETON:   And he may have been accepted as to some and rejected as to others, your Honour, but our law, at least as I understand it, involves a combined subjective and objective element in this area.

CALLINAN J:   But once he gave that evidence, then the fact that he gave it might very much have affected the way in which the defendant chose to conduct his case as to what warnings he might or might not have given, what the relative incidence would have been, various contingencies.  He was content with that answer and it then dictated the subsequent shape of the case.

MR BRERETON:   For a man like Mr Murphy – and your Honours will get the flavour of Mr Murphy to some extent from the judgment – a man who is not sophisticated and not used to being in a witness box and being cross‑examined, it is easy to give a simple answer like that.  He was still entitled to have the court say, “Well, look objectively, that is just not right.  He would have accepted some risks.”  But that is quite a different point to saying he would have accepted this particular risk had he been warned, an exercise which was never undertaken and which he was entitled to have undertaken.  May I have one moment to address the issue of ‑ ‑ ‑

GLEESON CJ:   Yes.

MR BRERETON:   Thank you.  It is quite right, as your Honour the Chief Justice put, that ultimately the plaintiff’s response must be evaluated in the light of the whole of the warning and advice that he ought to have been given.  The problem is that that evaluation was never undertaken.  Once the plaintiff was entitled to succeed on breach of duty – and that is where the special leave question arises – the rest of the exercise, obviously, has to be the subject of a new trial because it was never undertaken.  The point is the plaintiff was entitled to have that chance of which he has now been deprived.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 2.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.41 PM:  

GLEESON CJ:   In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and, further, that having regard to the nature of the evidence that was adduced at the hearing, the case is not a suitable vehicle to consider the issues of principle sought to be agitated on behalf of the applicant.

For those reasons, the application is refused with costs.

AT 2.41 PM THE MATTER WAS CONCLUDED