Murphy v Mackie

[2001] NSWCA 283

CITATION:	Murphy v Mackie [2001] NSWCA 283
FILE NUMBER(S):	CA 41070/00
HEARING DATE(S):	21 August 2001
JUDGMENT DATE:	21 August 2001
PARTIES :	James Lawrence Murphy (Appellant) William Mackie (Respondent)
JUDGMENT OF:	Powell JA at 1,14; Heydon JA at 15; Brownie AJA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	892/00
LOWER COURT JUDICIAL OFFICER :	Black DCJ

COUNSEL:	P R Hennessy SC; M Sneddon (Appellant) S D Kalfas (Respondent)
SOLICITORS:	Le Fevre Pike (Appellant) Colin Biggers & Paisley (Respondent)
CATCHWORDS:	No question of principle
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

041070/00

POWELL JA
HEYDON JA
BROWNIE AJA

TUESDAY 21 AUGUST 2001

JAMES LAWRENCE MURPHY v WILLIAM MACKIE

JUDGMENT

1    POWELL JA: The Court is in a position to deliver judgment. I would ask Brownie AJA to deliver the first judgment.

2    BROWNIE AJA: The respondent is a surgeon who operated upon the appellant’s left hand to treat a condition of Dupuytren’s contracture. The appellant offered no criticism of the way the surgery was conducted but sued the respondent for negligence, asserting that the respondent had failed to warn him of a particular risk that eventuated, namely the development after the surgery of a chronic condition of complex regional pain syndrome.

3    The evidence established that two to three per cent of patients who underwent the relevant form of surgery subsequently developed this syndrome, although not necessarily in a chronic state. In the great majority of patients, the pain experienced is mild and the condition resolves, but in the case of about fifteen per cent of patients who develop the syndrome it becomes chronic. That is, there is a mathematical risk of 0.3 to 0.45 per cent that a patient who undergoes surgery will develop the syndrome in a chronic form. One of the appellant’s witnesses described the condition as a rare but recognised complication of the surgery.

4    The respondent did not warn the appellant about this particular risk. Indeed, on the appellant’s case the respondent did not warn the appellant of any risks at all. Alternatively, if the respondent did warn the appellant of any risks, the appellant did not remember being warned.

5    On the appellant’s case, had he been warned that there was any risk, no matter how small, that the surgery might leave him with his left hand more disabled than it had been before the surgery, he would not have agreed to proceed to surgery. The appellant contends that the risk of which he was not warned was a material risk.

6    We have not heard the respondent and it does not seem to me to be desirable to decide that issue, because in my view the appeal fails at another point.

7    The learned trial judge, Black DCJ, analysed the evidence of the appellant and the respondent, they being the only witnesses whose evidence is presently relevant, and preferred the evidence of the respondent to that of the appellant. He concluded by saying that in his judgment the appellant was aware that there were risks associated with the procedure and accepted those risks. Unless that finding can be overturned, then it seems to follow the appeal must be dismissed.

8    The appellant has submitted that his Honour erred in the preceding sentence of his judgment and in other places by overstating part of the appellant’s evidence. His Honour said:

“I do not accept the plaintiff’s evidence that if he had been told that there was any risk however slight then he would not have undergone the operation.”

9    That sentence should perhaps have read:

“I do not accept the plaintiff’s evidence that if he had been told that there was any risk however slight that his left hand would have been worse after surgery than it was before surgery then he would not have undergone the operation.”

10    That amendment does not seem to me to be terribly important in the circumstances. It seems to follow naturally from the general thrust of the judgment read as a whole.

11    In any event, the plaintiff appellant made it clear, it seems to me, that if he had been told that there was any significant risk that his left hand might be worse after surgery he would not have had the operation.

12    The question is, of course, a hypothetical one and the trial judge, who had the benefit of seeing the parties, did not believe the appellant on this point. I see no sound basis upon which we can interfere with that finding of fact.

13    I propose that the appeal be dismissed with costs.

14    POWELL JA: I agree.

15    HEYDON JA: I agree.

16    POWELL JA: The order of the Court is that the appeal will be dismissed with costs.

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