Naxakis v Western & General Hospital

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M43 of 1998

B e t w e e n -
PARASKEVAS NAXAKIS (by his litigation guardian DIONISIA NAXAKIS
Appellant
and
WESTERN & GENERAL HOSPITAL

First Respondent

DAMIEN JENSEN
Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 16 NOVEMBER 1998, AT 10.18 AM

MR N.A. MOSHINSKY,QC: If the Court pleases, I appear with my learned friend, MR V.A. MORFUNI, for the appellant. (instructed by Swersky & Velos)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MR B.M. GRIFFIN, for both respondents. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Moshinsky.

MR MOSHINSKY: Your Honours, may I commence by referring to the facts. Your Honours have our submissions on this matter, but we would wish to highlight the salient features of the facts which pertain to the argument we want to raise before the Court.

Firstly, we say that the incident which caused the fight between Mr Griekspoor and my client which occurred outside the school involved the use of a light school bag. If I could take the Court’s attention to the appeal book at page 21 ‑ ‑ ‑

KIRBY J: Why are we particularly concerned at how the original trauma occurred? Is it not really a question of concentrating on what happened at the hospital?

MR MOSHINSKY: What we say is that we want to emphasise the fact that the original trauma involved the use of a light vinyl-based school bag with some lunch scraps, as a result of which my client ended up in hospital. The clinical signs that were in hospital, according to the evidence of two of the doctors called for the appellant, indicated that the damage was far too severe for being hit on the head in such a light manner. That is the point we wish to make, that the only evidence of how my client was hit, which is at pages 21, 22 and 23 of the appeal book, shows that the fight that brought him to hospital was not a major event in the sense of a heavy hit on the head. So one looks at page 21 at ‑ ‑ ‑

McHUGH J: Before you do, can I make this criticism of the chronology in this case. It does not comply with the Rules. It should be a separate document and it is of no use to the Court just simply have a collection of dates, Mr Moshinsky. What is required is that the particular incidents and the transcript references to them on particular days, that is the central differences, should be set out in a separate document so that the Court does not have to search through hundreds of pages of transcript looking for material facts. The purpose of the chronology is to aid the Court and I hope that will be borne in mind in future cases.

MR MOSHINSKY: Well, it certainly would, your Honour, and with the assistance of he Court we are happy to supply such a document at the end of the submissions, yes.

McHUGH J: Thank you.

MR MOSHINSKY: In the appeal book, page 21, lines 26 onwards:

Mr Griekspoor, on 14 July 1980 do you have a recollection of anything happening between you and Paras before you left the school, after school that day?---We were horsing around a little bit. There were a few of us there, some kids, we were running around, playing, swinging bags in the air, basically running around, screaming and yelling just kids mucking around. We were walking up towards the way we used to walk towards the football oval and we were all yelling and screaming and jumping up and around and I think I might have struck Paras in the school ground. He didn’t say nothing. Usually he started yelling or something and I would take off because he was bigger kid than I was. We ended up leaving and taking off towards home.

Then on page 23, line 19:

Now, did anything else happen between you and Paras outside the school ground that afternoon?---On the way past the post office I was jumping up under a fence and kicking myself off the fence and trying to spin around in the air, and I had my school bag in my hand and as I was spinning around Paras was walking very close to me and I struck him again.
Just take that slowly. You were jumping against a - -?---Cyclone fence.
Fence?---Yes, and I was jumping off and pushing myself off with my leg and spinning around backwards with my bag in my hand.

And then, over the page at line 15:

When you jumped off this fence and spun around the way you did with your school bag, what contact did you make with Naxakis’s body?---I struck him on the back of the head and I then I took off home.
What sort of bag were you using?---I was carrying a blue vinyl – just a school bag you get at most stores. It didn’t say Spotswood primary School or anything but just a normal blue carry bag with handles to carry my lunch and a few books.
What was in the bag when you performed this act?---I never used to carry books. More or less my lunch to school and we had a few scraps of lunch left over in it.
You didn’t carry homework home?---No, I didn’t do homework very much at Spotswood.
Did the bag have a base to it?---It had a sort of an imitation leather base to it.

And that is all I wish to read from the transcript, at this stage.

We then move to the next stage of events where, as a result of that incident where my client is hit on the head with the vinyl school bag, he becomes unconscious and he goes to hospital and the course of events is then set out in the clinical notes in the hospital.

KIRBY J: He was taken first to a local doctor, I think, and was sent off to the hospital.

MR MOSHINSKY: He was taken first to the local doctor. Yes, your Honour, and we have handed up to the Court a summary of the entries in the appeal book with the page references of what the notes say, rather than to take the Court laboriously through every entry in the appeal book, but the course of events can be quite simply stated that having arrived in the Western General Hospital he was brought in conscious and lucid and then there was a later brief unconsciousness. He became unarousable and not responding to pain for five minutes. He was looked at by the registrar who diagnosed subarachnoid haemorrhage. There was obvious opisthotonos and marked neck stiffness present at that time. A CAT scan was performed on 18 July 1980 and that revealed a haemorrhage in the fourth ventricle.

KIRBY J: What is the significance of the statement that it was “without contrast”?

MR MOSHINSKY: Apparently, it is possible to have a form of CAT scan where chemical substances are used and it is possible to see something of a pattern of how the blood vessels look at that time.

KIRBY J: But is it designed to indicated that this was an imperfect CAT scan or a CAT scan which would, as it were, allow an aneurism not to be noticed.

MR MOSHINSKY It is a CAT scan which cannot say whether there is an aneurism present.

KIRBY J: Is it a suggestion that they ought to have used contrast?

MR MOSHINSKY There was discussion in the trial that a CAT scan for contrast was a possible diagnostic tool, but it would not be as definitive as an angiogram. The only way to determine whether there was an aneurism in this case definitively was by the use of an angiogram. The CAT scan with contrast may have revealed it, but it was not clearly the case.

KIRBY J: Was it any part of your case that the failure to use contrast was, itself, a negligent act?

MR MOSHINSKY It was part of the case below that they could have used a CAT scan with contrast.

The course of events then, briefly, can be stated that in hospital he was there until released on 23 July. During that period of time he had marked neck stiffness, and he got better, but however, on 22 July 1980 the notes show that there was still some slight neck stiffness present the day before he was released.

The medical theory that the appellant is relying on is based on the evidence of two doctors, and the summary of their evidence is contained in the appellant’s written contentions. In substance, what the evidence amounts to is this, your Honours, that it was Dr Klug who was called. He was the treating doctor who treated the appellant after the appellant had the second bleed as a result of which he went to the Royal Children’s Hospital, and eventually it was diagnosed that he was suffering from a burst aneurism, and that aneurism was clipped.

Mr Klug said that the subarachnoid haemorrhage which was present when the appellant was admitted to the hospital resulted from a subsequently demonstrated posterior fossa aneurism.

GAUDRON J: What is a posterior fossa?

MR MOSHINSKY: It is in the back of the head, as I understand it. He said that the CAT scan that was performed was intended to ensure the appellant had not developed hydrocephalus. But although the results were consistent with subarachnoid haemorrhage, they did not indicate its cause.

McHUGH J: Was this aneurism a congenital aneurism or was it regarded as the product of trauma?

MR MOSHINSKY: It was a congenital aneurism. The second respondent, or the respondent in this appeal, Mr Jensen, gave evidence that there were four possible causes for a subarachnoid haemorrhage. This evidence can be found in appeal book 687, lines 16 to 19, and it is referred to in our notes. He said that the causes were trauma, tumour, a burst aneurism or arteriovenous malformation. So there were only four possible causes. Mr Klug said that the CAT scan did not say what the cause of a subarachnoid haemorrhage was, merely that there was a collection of blood at the fourth ventricle. But the importance of his evidence ‑ ‑ ‑

KIRBY J: Was that collection of blood seen in the CAT scan, was it?

MR MOSHINSKY: I beg your pardon.

KIRBY J: The collection of blood was seen in the CAT scan?

MR MOSHINSKY: He actually looked at the actual X-ray which was shown in court, produced, and he gave evidence about it. If I could actually ask the Court to look at appeal book 168 ‑ ‑ ‑

KIRBY J: There was some suggestion, I thought I read, that it was a large collection of blood and that that was a matter that ought to have alerted to the possibility that, with such an apparently minor trauma, there was some other ‑ ‑ ‑

MR MOSHINSKY: That is the point I want to take the Court to now. At page 168, line 16, or starting at line 9:

What do you say about that collection of blood, was it consistent with a diagnosis of subarachnoid haemorrhage or not?---It is certainly consistent with a diagnosis of subarachnoid haemorrhage. It does not clearly indicate the cause of the subarachnoid haemorrhage.
Was it consistent with the cause of the subarachnoid haemorrhage being a traumatic blow to the head some four days earlier?---If it was a severe blow to the head four days earlier, I think it could be consistent. If it was a minor blow to the head, I feel it is an unlikely appearance.

GLEESON CJ: Then what was the connection on that evidence between the blow to the head and the haemorrhage?

MR MOSHINSKY: We say that there was no sufficient connection.

GLEESON CJ: Where did that leave your case against the school?

MR MOSHINSKY: That was a problem with the case against the school. The difficulty about the case against the ‑ ‑ ‑

GLEESON CJ: I am just wondering whether the fact that you were making out a case against the school meant that you were seeking to make out a connection between the haemorrhage and the blow.

MR MOSHINSKY: We were. There was other evidence in the case, your Honour, that even though the blow might have been a light one, it might have been part of a causal chain that led to the actual rupture of aneurism because the blood pressure of my client had risen during the course of the fight. But he had this congenital problem with the aneurism. He was lightly hit in the schoolyard the first time, then the second time. A combination of these two incidents, according to Dr Klug, may well have elevated his blood pressure which caused some sort of bleeding of the aneurism when he got into the hospital, the point being that the degree of bleeding, the unconsciousness, the neck stiffness and the amount of blood were just too great a symptoms for a light fight. But the case against the school proceeded in another way and he did not have to attribute the whole of the damage to what happened in the school. It was just a cause of what happened.

McHUGH J: Was one of your difficulties against the school that it was by no means clear that the haemorrhage was the result of the trauma as opposed to a rise in the blood pressure?

MR MOSHINSKY: It was, that is right. That was one of the difficulties.

KIRBY J: You originally mounted the case in the alternative. You were suing both, but then at the special leave application the school has been knocked out.

MR MOSHINSKY: It has been knocked out, yes, your Honour.

KIRBY J: You are now laying great emphasis upon the triviality of the original trauma which otherwise you might have been inclined to, as it were, emphasise a little.

MR MOSHINSKY: I think that the previous way in which the case was put was to rely on the billiard ball analogy of causation, that there was a light hit but it led to other causes being activated, the high blood pressure which then led to the – there was never any suggestion that the hit was not light, because that was the evidence. The only evidence was that he was hit with a vinyl school bag, which you can buy anywhere. It had a few lunch scraps in it. That was the second time and the first time it was an incident in the school yard.

McHUGH J: Could you help me on this that appears in paragraph 4 of your submissions summarising the evidence of Klug? Did he form the opinion that is expressed in the report when he saw the appellant on or about 25 July 1980 or is the opinion expressed in that report the product of his studying the clinical records, CAT scan and so on in August 1994? Do you follow that?

MR MOSHINSKY: Yes. Well, the way in which he was examined in‑chief in this case was to ask him to look at his earlier reports, not just one report but a series of reports. He was taken through all his earlier reports and then he gave contemporary evidence about the matter, adopting what was said in this particular report, which is the relevant passage.

McHUGH J: Was that a view that he formed as at 25 July 1980, that it was most probable that the subarachnoid haemorrhage was present?

MR MOSHINSKY: Yes, that is my instructions. That is the view that he had before and then he reinforced that view later.

McHUGH J: So, his view from the moment he first saw the plaintiff was that it was most probably the result of an aneurism?

MR MOSHINSKY: Yes, that was his view, because he had given the plaintiff an angiogram and then clipped the aneurism some three months after he had seen him, so he formed the view that it was really the aneurism that was probably the cause of the subarachnoid haemorrhage. That was his view that he formed later.

Can I then just re‑emphasise what is said in the appellant’s submission in that paragraph 4, that he said that the CAT scan was intended to ensure that the appellant had not developed hydrocephalus and, as I said, the results of the CAT scan were not consistent with a minor blow and they were indicative of a significant haemorrhage.
He reached the view that the cause of the haemorrhage was a burst aneurism because a traumatic subarachnoid haemorrhage in the absence of any vascular anomaly usually follows a significant blow to the head and in this particular case it did not appear that the appellant suffered such an insult.

He said that the only way of deciding whether there was some other way of deciding if there was some abnormality producing the haemorrhage was by performing an angiogram. There was a small risk of something going wrong if an angiogram was performed and serious consideration should have been given to the performance of an angiogram.

McHUGH J: I am just having some difficulty in understanding the evidence, perhaps because I have not got in my mind all the details of the chronology of these events, but if he formed that view on 25 July 1980, was it his evidence that he would have formed that view at the earlier stage or did he just leave it as a matter of a possibility that ought to be considered? Do you follow what I am putting to you?

MR MOSHINSKY: Yes. The difficulty in this case, your Honour, if I can put it this way, was that certainly in his early report he indicated that that was his view that the cause of the bleeding in the first place was the burst aneurism. I now come to the cross-examination of Mr Klug where his view seems to be in some way changed or qualified and that causes a need to re-evaluate the whole of his evidence and it is not enough just to look at what he said in-chief, you have to look at the whole of the picture.

McHUGH J: So, what, is it a typical case of the plaintiff’s case getting worse under cross-examination than it was in-chief?

MR MOSHINSKY: Well, it is a case where he said something which caused some – a new way had to be looked at his evidence in order to truly understand it and I could explain that by taking you to the transcript.

CALLINAN J: Why do you have to evaluate the whole of this evidence in a jury case? If there is some evidence, so long as he did not say in cross –examination, “I retract what I said” or “Everything that I said was wrong”, why do you have to evaluate it?

MR MOSHINSKY: Exactly, your Honour.

CALLINAN J: Is that not the complaint about what the Court of Appeal did?

MR MOSHINSKY: That is essentially our case.

CALLINAN J: And the trial judge?

MR MOSHINSKY: Yes, absolutely, your Honour. That is what we say, but I am turning to it because that is the case against us. The case against us is based on the answers that were given in cross-examination.

McHUGH J: But you were entitled to ask the jury to reject those – I mean, Leotta v Commissioner of Railways holds that you can pick and choose among the answers, if there is enough there that can rationally gets to the jury.

MR MOSHINSKY: Yes ,certainly. But in any event, your Honour, if one looks at these answers they are not as much in favour of the respondent as is being made out. What Mr Klug had in fact said was, “Without a doubt, you had to give consideration to an alternative diagnosis in this case”. Even under cross-examination, when it was put to him he said, “You had to give serious consideration” but he did say that whether or not you give an angiogram would be a matter of opinion, depending on how practitioners would view the situation.

That is the difficulty that he threw up in his evidence. In his original report he said, “An angiogram was appropriate and that would have revealed the cause”, which was an aneurism, but in his cross –examination he modified it only to the extent in saying that there was some – different practitioners might have different views whether he would give an angiogram in a case like this to a boy of that age. But, earlier on he did say that the boy was capable of being angiogrammed, and he said this in court, and he said there was a small risk, about 5 per cent, of anything going wrong.

CALLINAN J: Mr Moshinsky, when you are going to this – Mr Klug’s evidence that you are going to go to, which I think quite a lot of the key parts of are set out at pages 839 to 841 – can you tell me whether there is any statutory provision which bears upon the ultimate issue rule, the evidentiary rule?

MR MOSHINSKY Yes. Your Honour, I have a different numbering in my appeal book and I know the passage that you are referring to. I think that that is in my appeal book reference at pages 251, 252 and ‑ ‑ ‑

CALLINAN J: It is the passage where he is asked in cross‑examination:

But the decision not to perform a angiogram, you would not consider, I suggest, to have been in any way in dereliction of –

his duty, which is just a formula for asking whether he was negligent, and he makes a responsive answer to that:

No, I don’t think it is negligent at all.

Why was he allowed to give that evidence? Why was there not objection taken to it?

MR MOSHINSKY I do not know. I did not appear for the appellant at the time, and I do not know how that evidence went in, but in our submissions we say that, of course, that is the ultimate issue.

CALLINAN J: Exactly.

MR MOSHINSKY And although it is evidence ‑ ‑ ‑

CALLINAN J: Well, no, I do not think you can give it. I know customarily attempts are made to adduce it, and I know sometimes it goes in without objection, and I also know that sometimes it goes in over objection, but always, tentatively, in my view, wrongly. It seems to have crept in that experts are being asked to decide the case.

GAUDRON J: And it certainly is not consistent with the approach of this Court in medical negligence cases.

MR MOSHINSKY Yes; it is certainly our submission ‑ ‑ ‑

CALLINAN J: I just do not understand how it has happened, but it seems to be happening everywhere – professional negligence cases, particularly medical cases, the doctors are purporting to decide them.

MR MOSHINSKY The respondents’ submissions which have been filed in this case rely heavily on this point, or they make substantial submissions about the matter. As I understand the respondents’ submissions are that distinction ought to be drawn between cases where there is a warning‑type case by a doctor, and a diagnosis case. Certainly in Rogers v Whitaker this Court alluded to the differences that might apply in different cases, and the case put by the respondent is that when it comes to diagnosis the doctors’ opinions ought to be accepted as definitive, or explanatory of what the situation is, and the doctors’ views ought to be allowed in cases of this nature because it is a matter of expertise that doctors know that members of the jury cannot have.

Our answer to that argument is that in this particular case the facts were all laid out before the jury. There were all the clinical signs and symptoms which required serious consideration for the giving of an angiogram. There was the large amount of blood, the unarousable consciousness, the neck stiffness. The jury could form its own considered view on the basis of the actual evidence that ‑ ‑ ‑

CALLINAN J: But the authorities do not recognise an exception of the kind that you seem to be conceding exists.

MR MOSHINSKY I certainly do not concede that exception, I am merely alerting to the Court to what I understand to be the argument against me, and I reject that argument. I do not accept it.

CALLINAN J: I would not make a concession if I were you.

MR MOSHINSKY: No, and, certainly, I do not make any concessions. Our written contentions make it very clear that we rely on the authorities we cited for the proposition of the ultimate issue is a matter for the jury, and that that sort of evidence cannot be led to take away the jury’s role.

CALLINAN J: Although here it went in without exception, without objection.

McHUGH J: Yes, so what are we going to make of it? I mean, “negligence” encompasses a legal standard and expert witnesses cannot be asked whether or not the plaintiff or the defendant was negligent.

MR MOSHINSKY: Yes.

McHUGH J: But this witness was asked that in terms.

GLEESON CJ: Trial counsel might have not objected because he thought he would get a different answer.

MR MOSHINSKY: I do not know, your Honour. I cannot answer that. But, in any event, the passages that Justice Gummow referred me to are the passages that the respondents rely on in cross‑examination, and that is really what the Court of Appeal, in the end, placed the greatest emphasis on in coming to the view that there was not enough evidence to go to the jury. That is at appeal books 251, 252 and 253.

GLEESON CJ: There was a question of timing that seemed to be regarded as important in the Court of Appeal. It appears, for example, on page 844 in the first complete paragraph. What is your submission on that?

MR MOSHINSKY: Our submission on that, your Honour, is that when the results of the CAT scan became known to Mr Jensen, which was on 19 July 1980, there was enough unusual circumstances in the case to warrant considering an alternative diagnosis.

GAUDRON J: But was there any diagnosis? I mean, as I understand it, a mere diagnosis, just to say - sorry, that there has been subarachnoid haemorrhage is not a diagnosis.

MR MOSHINSKY: No, it does not establish the cause.

GAUDRON J: And was there a diagnosis that went beyond that to traumatic, subarachnoid haemorrhage?

CALLINAN J: There were three possibilities ‑ ‑ ‑

MR MOSHINSKY: There was an attribution of trauma as the cause for the subarachnoid haemorrhage by the respondent and ‑ ‑ ‑

CALLINAN J: Were there not three possibilities, one of which was excluded, and the three possible diagnoses, one of which was excluded? One was chosen and the one that you say should have been made, could have been made had the appropriate test been taken, and they were not taken. Is that not the position?

MR MOSHINSKY: We say, yes, that is what was ‑ ‑ ‑

GAUDRON J: On one view, may not the negligence is the case you make be in making the diagnosis of “traumatic”, if that is what the diagnosis was of “traumatic subarachnoid haemorrhage”, in the face of symptoms and a history which indicated otherwise.

MR MOSHINSKY: Yes. We say, your Honour, that there was not enough – the diagnosis appears to have been of a traumatic cause, although Mr Jensen did not give – his evidence was he could not recall anything of what happened. He could not recall what he actually thought as the diagnosis, but the inference from the clinical notes was that the cause attributed was traumatic cause. He went on to say, speaking at the trial when he gave evidence, that he still did not think it was necessary to have an angiogram in this case even with all the evidence that he heard. He said there was no indications for an angiograph in this case or that angiography should have gone through his mind.

GLEESON CJ: But the point to which you may have an answer raised on page 844 is that it is one thing to say a proper consideration of the matter should have resulted in at least consideration of an angiogram. It is another thing to say that consideration should have been given before 25 July.

MR MOSHINSKY: Our answer – we have tried to do this in our written submissions – is that the consideration should have been given before 24 July because the CAT scan had revealed, according to Mr Klug and Mr Cummins, a large amount of blood in the left ventricle and there was also the ongoing clinical signs of neck stiffness. The course of events shortly after the admission of the appellant all cumulatively indicated that something was wrong in the posterior fossa, to use Mr Cummins’ words. Things were not going along to the plan of someone just being hit lightly on the head.

GLEESON CJ: At line 10 on page 844 the argument which found favour in the Court of Appeal appears and it includes a proposition that there was no medical evidence to support the proposition that the consideration of an angiogram should have occurred before the second episode of bleeding on 25 July.

MR MOSHINSKY: We contend, your Honour, that is not a correct analysis of the medical evidence which was given. Very clearly, from the evidence of both Mr Cummins and Mr Klug, the presence of these unusual signs and features indicated the traumatic cause of the kind that was known could not possibly be accounting for what was happening. Consideration should have been given at that early stage of admission to another form of explanation, and the only definitive way would have been to have an angiogram. Mr Cummins, whose evidence I have not come to in detail, said that if anyone had considered an alternative diagnosis, given the reasons for doing that, there would have been an angiogram. He said that is the only way you really define one way or another what is happening.

KIRBY J: But immediately or within a reasonable period of time or within a specified time? It all happened rather quickly, did it not?

MR MOSHINSKY: We say that as soon as the CAT scan results came in and were known to Mr Jensen, which was on 19 July 1980 ‑ ‑ ‑

KIRBY J: Showing the large deposit.

MR MOSHINSKY: The large deposit. Given the unconsciousness of five minutes beforehand, he should have been alerted to the need at that stage to give an angiogram.

GLEESON CJ: If your account of the medical evidence is correct then it is difficult to reconcile with what the trial judge said on page 12 of these supplementary materials. I am looking at the first complete paragraph on page 12. He says that no medical witness:

suggested that the failure to order an angiogram was in any way open to criticism.

MR MOSHINSKY: Well, what we say is that is because of the answers in cross-examination of Mr Klug where he said it was a matter of opinion to be decided between doctors whether an angiogram would have been ordered in this case but having earlier on in his evidence said quite clearly that an angiogram could have been ordered and that was the only way to verify an alternative diagnosis of aneurism and given the fact that one should have considered that alternative diagnosis what we say that in effect, properly construed, his evidence supports the giving of an angiogram. Alternatively, Mr Cummins, the other expert replied on said, “An angiogram would most certainly have been given once consideration for an alternative diagnosis had been made”.

What Mr Cummins, however, said was all a matter of hindsight. He said, “It is all very well for us to look back on the situation now and say that, it is a matter of hindsight” and in that way he qualified his evidence but, of course, in many negligence cases experts are asked to give evidence based on hindsight. That is not an argument to say that what was done in the first place was not negligent.

GAUDRON J: It still seems to me that, in essence, your case must be the failure to consider the possibility of an aneurism.

MR MOSHINSKY: Yes.

McHUGH J: Well, exactly. That is what I just do not understand about this case, perhaps because I do not understand the evidence, but there was a diagnosis of traumatic subarachnoid haemorrhage.

MR MOSHINSKY: Yes.

McHUGH J: But, that was only one of four possibilities.

MR MOSHINSKY: Yes.

McHUGH J: Now, was there any evidence that Dr Jensen ever considered whether or not the bleeding might be due to any of these other ‑ ‑ ‑

MR MOSHINSKY: Well, that is the other part of our case and we have put that in our written submissions. We say the jury was properly entitled to form the view that he did not consider an alternative diagnosis.

GAUDRON J: There is no suggestion that he discussed it with the parents?

MR MOSHINSKY: Not at all. There is nothing in the clinical notes to suggest that an alternative diagnosis was entered into. He, himself, had no recollection of how he proceeded or what course he took.

GAUDRON J: And he took no further tests, notwithstanding a persistence of neck stiffness?

MR MOSHINSKY: No, and he took no further tests. And, just to repeat the point I have made that the CAT scan was undertaken by him for the purpose of finding out if there was hydrocephalous which is not the cause of the subarachnoid haemorrhage but whether or not there is an unusual collection of spinal fluid, in other words, what was actually happening, not the cause of it, and so he was left with the situation where the boy was injured; there was clearly a subarachnoid haemorrhage ‑ ‑ ‑

GAUDRON J: Was any explanation given for the delay between 14 July and 18 July in taking the CAT scan?

MR MOSHINSKY: I am not sure about that.

GAUDRON J: After the period of unarousable unconsciousness?

MR MOSHINSKY: Yes. I am not aware of any precise explanation other than - - -

GAUDRON J: I think Mr Bongiorno thinks there is one.

MR MOSHINSKY: No doubt, he can explain that. I contend that there was no medical reason given for the delay in the CAT scan other than just the normal course of treatment and the availability of CAT scan technology. My friend says there were only three machines in Melbourne.

GAUDRON J: That may be so, but at that stage a CAT scan was a useful diagnostic tool for tumour, was it not?

MR MOSHINSKY: It was not for tumour, it is just to see what is happening. It is an X-ray to see what is actually happening. It does not tell you the cause of what is happening.

McHUGH J: I would have thought that the fact that there was blood present in the fourth ventricle indicated that there was a real chance that trauma was not the cause of the bleeding. Is that not the evidence?

MR MOSHINSKY: That is so, your Honour.

McHUGH J: Now, if that is the evidence, is there any evidence that Mr Jensen considered the question of aneurism?

MR MOSHINSKY: There is no evidence to say that he considered it.

GAUDRON J: You would have to say, would you not, that it is a proper inference available, from the notes and the treatment given, that this alternative diagnosis was not considered?

MR MOSHINSKY: That is absolutely true, your Honour.

GAUDRON J: And your assertion of negligence, really, has to be the diagnosis, if it be such, of traumatic subarachnoid haemorrhage without excluding the other possibilities known at the time?

MR MOSHINSKY: Yes. We have so said in our written submissions. We rely on the notes. There was nothing in the notes to say he considered – he said he could not remember. And then, when he came to trial, he did not think, in any case, standing as he was in the trial, that the case justified an angiogram. So, in retrospect, he looked at it to justify a possible position so that if he had not actually considered it, it is not the sort of situation which would require an angiogram.

So, given all those circumstances, we say that one would have expected him to provide a full explanation of the situation. These are facts particularly within his own knowledge and, given those circumstances, it is certainly a matter for the jury whether or not he did consider it.

The other matter we want to raise is the stage at which the trial stopped. It was not a “no case” submission at the end of the plaintiff’s evidence. It was a “no case” submission at the end of the defendant’s evidence. So, on the issue of whether or not Mr Jensen considered an alternative diagnosis, the jury had Mr Jensen’s evidence before them and then they had the clinical notes. We say, at that stage, it was open to the jury to evaluate Mr Jensen’s evidence, and they may not have believed him.

It is different to a case where all you have is just the notes. It is a much stronger situation for the plaintiff where it is really a matter of evaluating that situation.

McHUGH J: Is it suggested that you may have had a case to go to the jury at the close of the plaintiff’s case but not at the close of all the evidence?

MR MOSHINSKY I do not think that was the situation.

KIRBY J: I thought it might have been in the way in which there was a weighing up of the evidence, and the conclusion that the balance of the evidence at the end of the case was that Dr Jensen was not negligent. I thought that was one of your complaints, that that was an issue for the jury. If there was a scintilla of evidence, it has to go to the jury.

MR MOSHINSKY There was actually a submission made at the close of the plaintiff’s case and that was rejected, as I understand it.

GLEESON CJ: But that was not the test that the judge applied. He asked himself whether there was any evidence that ought reasonably to satisfy the tribunal of fact that the plaintiff had a case.

MR MOSHINSKY We do not quarrel with that test.

GAUDRON J: He puts it in failing to order the angiogram.

MR MOSHINSKY Yes.

GAUDRON J: Now, if you put your case entirely on failing to order the angiogram, that is one thing.

MR MOSHINSKY That is one thing, yes.

GAUDRON J: If you put it, though, on failing to consider the possibility, it is another, because one might infer that other things might have happened to keep the patient under observation or something.

MR MOSHINSKY Yes. May I pick up on that point. We very strongly emphasise in this appeal that the elements of negligence are twofold, but most particularly the failure to consider. If it is held against us, if the view of this Court is on examining the evidence that the evidence is not clear as to whether or not an angiogram should have been ordered - and we do not make that concession at all. We say it is absolutely clear that there should have been consideration to an alternative diagnosis. By reason of that particular breach of a failure to consider, the damage was actually caused or, alternatively, my client lost the chance that an angiogram might have been taken and that will in itself have led to a reversal of his problems. It is either the actual damage or the chance. The chance argument is particularly relevant to the issue if the Court comes to the view that the element of negligence is really the failure to consider rather than the angiogram.

McHUGH J: I think if your case is on the failure of proper diagnosis, then it is a chance case, is it not?

MR MOSHINSKY May I go into that a little bit shortly, whether it is a chance case or not, because we then rely on what your Honour has said in Chappel v Hart to say that it is not just a chance case.

GAUDRON J: But in any event, you have then got the further evidence that if that alternative diagnosis had been considered there would have been an angiogram.

MR MOSHINSKY Yes, we certainly have that evidence ‑ ‑ ‑

GAUDRON J: Although perhaps it does not say with precisely what stage.

MR MOSHINSKY At what stage.

McHUGH J: There are two levels, are there not? If it had been properly considered, then if there was a probability that there would be an angiogram taken, then you have a complete case of negligence, but you have a fall‑back position ‑ ‑ ‑

MR MOSHINSKY Of the loss of a chance.

McHUGH J: Of the loss of a chance that if he had thought about it he would have said, “I had better do it”.

MR MOSHINSKY: Why we say there is a probability, your Honour, on the first level is that Cummins said that, “If you had considered it, you would have given an angiogram. That is just normal.”, and Klug said, “That is the most effective way of checking the diagnosis” was to have an angiogram. Both of them said the appellant was capable of being angiogramed, despite his age.

GLEESON CJ: If what you have just said is right, then, presumably, you must also say that what the trial judge said on the top of page 12 of the supplementary material in the first two sentences is based upon a substantial misunderstanding of the evidence.

MR MOSHINSKY: Yes, we do say that, most certainly. We say that he definitely misunderstood the evidence. It is not a question of impression, it is not a matter of credibility. It is there in black and white what the doctors had said but they qualified it by their answers in cross‑examination and it may be that the judge put a lot of emphasis on the answers in cross‑examination because they said it was reasonable not to have an angiogram. It was not negligent and, furthermore, doctors would be divided as to whether or not to have an angiogram.

That is Mr Klug’s evidence, whereas, with Mr Cummins, he qualified it by saying, “It is all a matter of hindsight in the end. I am speaking from a long distance away.” That is the way he put it, it was a matter of hindsight. With those qualifications, the judge placed emphasis on the evidence as amounting to insufficient evidence. Now, we have formulated three propositions as to the doctor’s duty of care. May I hand up, for the sake of clarity, our formulations of it so that I can speak to them.

GLEESON CJ: Thank you.

MR MOSHINSKY: We say that the duty of care has already been explained by this Court in Rogers v Whitaker 175 CLR 483 and the basic proposition that emerges from Rogers v Whitaker is that there is a single comprehensive duty which extends to diagnosis and treatment of the appellant. The standard of care which the doctor was required to comply with was:

that of the ordinary skilled person exercising and professing to have that special skill –

of a neurosurgeon. Now, the question then is, in this case, bearing in mind that standard of care and that duty, what was he really required to do when faced with these facts.

GLEESON CJ: And when was he required to do it?

MR MOSHINSKY: And when was he required to do it?

GAUDRON J: You say before discharge?

MR MOSHINSKY: We say, certainly, before discharge because it is a continuing duty but, first of all, if the formulation of a diagnosis is relevant to treatment, we say a doctor’s duty of care in the provision of treatment requires him to formulate a reasonable diagnosis. We do not say that just because a diagnosis is wrong there is negligence. Nor do we say that merely to fail to make a diagnosis is negligence, because it is only where there is the need for diagnosis for treatment.

Now, this is a good example, this case. If he had formulated the diagnosis of aneurismal cause on the medical evidence, the proper thing to have done would have been to keep the appellant in hospital in a quiet condition, make sure the blood pressure was not elevated and give him a drug called Amicar which reduces the risk of a second bleed. If appropriate, you would then clip the aneurism but that is not the only thing you do, clipping the aneurism. You would still stabilise that condition.

So identifying the cause of the problem is a way of treating the person correctly. So we say that in cases like that where you have to know what the cause is in order to work out what the treatment is, you have to work out a reasonable diagnosis.

GLEESON CJ: Mr Moshinsky, can you assist me by explaining an expression I have seen in the papers. What is the precise meaning of the expression “differential diagnosis”?

MR MOSHINSKY: My understanding, your Honour, is that it is an alternative hypothesis which ought to be examined as available to explain the causes of the symptoms, to be looked at as a differential or different diagnosis.

CALLINAN J: Mr Moshinsky, just before you answer the Chief Justice’s question, you said something about the making of a reasonable diagnosis, but the making of one reasonable diagnosis might not discharge the doctor’s duty, is that not right?

MR MOSHINSKY: That is right.

CALLINAN J: I put it that way because the approach in the Court of Appeal at page 844 seems to be that if a reasonable diagnosis has been made - and I think it is not an unfair summary even in the context – then that in some way discharges the doctor’s duty rather than the performance of a duty to look at other competing or possible diagnoses. It is the first and second sentence on page 844.

MR MOSHINSKY: Yes. We respectfully accept what your Honour has said and have intended to incorporate that idea in our three-point submissions in writing to the effect that the duty of consideration investigation is a continuous one requiring reconsideration and assessment of changing symptoms or symptoms the persistence of which may be regarded as unusual. What we say is that in formulating a reasonable diagnosis, the doctor is bound to consider all relevant circumstances and to undertake such investigation as is reasonable so as to confirm or exclude such a diagnosis. So that it is really an evaluating task and he has to exercise that task or the doctor has to exercise the task in a reasonable way taking into account all relevant circumstances excluding irrelevant circumstances. It is a continuous job that has to be performed as circumstances changed.

In this case, of course we say that the evidence justifies the giving of an angiogram as well as the need to consider all these other symptoms, but even if the evidence is against us and it was not reasonable to give an angiogram in the circumstances, on this formulation we say there was a breach of the duty of care because there was a failure to consider all relevant circumstances and to make that an ongoing task during the nine‑day period. So we have a breach of a duty of care followed shortly afterwards by damage in the form of the second bleed. We then rely on the line of authorities the culmination of which were some of the dicta in Chappel v Hart to the effect that where the breach of duty of care occurs and subsequently there is damage, then, unless there are circumstances or reasons to explain to the contrary, a causal link is established. We also rely on the ‑ ‑ ‑

GAUDRON J: But you, as it were, take that backwards rather than forwards, do you not?

GAUDRON J: Did Chappel v Hart do that?

MR MOSHINSKY: No, Chappel v Hart – we say, it does not matter. It is the correlation that is part of the way of doing it. We also rely on the McGhee principle which Justice Kirby said something about in his reasons. In the end, we rely on common sense. We say the rubric of common sense provides the way to find the causal link, and I want to address the Court on those three different ways of looking at causation. But in the end, we ‑ ‑ ‑

GAUDRON J: But is causation in issue here, really?

MR MOSHINSKY: Well, it is said that because it was ‑ ‑ ‑

GAUDRON J: The finding is “No negligence”.

MR MOSHINSKY: Yes.

GAUDRON J: Now, assume there is evidence of negligence, then it is for a jury to determine causation, not this Court, is it not?

MR MOSHINSKY: Yes, of course it is. But it is a question of whether there is evidence to decide whether there is evidence of negligence ‑ ‑ ‑

GAUDRON J: There is no doubt that Dr Klug’s evidence deals with causation, is there?

MR MOSHINSKY: Yes, it does. So what we say is that, if it is put against us that the breach of a duty of care in this case does not amount to negligence because it could not be said that in such a case as this it caused damage, then, we say, there is a clear answer to it. But in the end then we look at what is the kind of damage that flowed from it. The jury should have been asked to decide whether or not the negligence deprived - caused the actual second bleed or, alternatively, deprived my client of the chance of proper treatment. It then becomes a lost chance as a possible case, and we have given some submissions on that issue. Could I briefly then ‑ ‑ ‑

KIRBY J: At some time you will take us to the Court of Appeal decision, because we are sitting here on appeal from that court. It will be important for us to understand where you say their Honours fell into error. Given that Mr Klug gave repeated evidence that certain things should have been done, it seemed to me, at least prima facie, that that gave you a leg into the jury and I would like to fully understand why the Court of Appeal held that it did not.

MR MOSHINSKY: If I could take the Court now to the relevant passages in the Court of Appeal decision. At page 839, line 25, the court said that:

Much, then, turns on the state of the medical evidence.

It then recounted the relevant passages. The relevant passages were from Mr Klug and the emphasis placed is on the need for serious consideration to have been given, given the pattern of events, to an alternative diagnosis, and I do not need to read all those passages. Then there is a reference to Mr Cummins and there is a statement that – I have not actually dealt with Mr Cummins so this may be a convenient time to summarise his evidence. That is found at page 841, line 17:

Cummins – who gave expert evidence on behalf of the appellant. He said in examination-in-chief:
In the shoes of those practitioners looking after the patient at the time and with the limited information they then had and to assess whether a diagnosis of traumatic subarachnoid haemorrhage was one that could reasonably have been made?---It is certainly a reasonable diagnosis. Whether it was reasonably the one that should have come to the top I think is the issue that I would be addressing and I still say that I have got hindsight and it is very difficult for me to ascertain.
It would be reasonable to make one diagnosis; would it also be reason to look at another diagnosis?---One always should look at other diagnoses but to how far one looks in any one case is limited.
And on the clues that you saw here, what was the other diagnosis that should have been looked at?---The one that was – I would have thought the one that was looked at was something else going wrong in the posterior fossa of the brain, which it did.
And in your view, ought the aneurysmal haemorrhage have been fitted into that category?---Yes it should. Other causes of subarachnoid haemorrhage could have been fitted into the category, but it is a matter of weighting, by weighting I mean w-e-i-g-h-t, putting weights on decisions one makes in the situation.

GLEESON CJ: Mr Moshinsky, I may be simply displaying my own lay ignorance about the meaning of the medical term but there is an ambiguity in the word “diagnosis” as it is used here, is there not? One can consider possibilities but when you form a diagnosis that involves a selection of one of the possibilities, to the exclusion of others, does it not?

MR MOSHINSKY: It does, yes, your Honour.

GLEESON CJ: That was part of my difficulty with this concept of differential diagnosis which I think you answered by saying that “differential means different”.

MR MOSHINSKY: Yes.

GLEESON CJ: Why do they not just say “different”?

MR MOSHINSKY: They have a world of their own, your Honour.

GLEESON CJ: I just cannot help feeling, reading this evidence of Mr Cummins, that there is some ambiguity in the way this word “diagnosis” is being used.

MR MOSHINSKY: Yes.

KIRBY J: I assume that “differential” means in the art in which we are engaged there is no certainty and therefore we are weighing up various possibilities, all of which are possible, but we are going to come to a conclusion of that which we accept.

MR MOSHINSKY: Yes.

GLEESON CJ: But if “diagnosis” is a step in decision making towards either action or inaction then, ultimately, there will be the diagnosis if the action you are going to take or not take depends upon what it is, is that not so?

MR MOSHINSKY: Yes, we accept that, yes. And, the point of our submissions, your Honour, is that a process of exclusion must be undertaken to refine thinking to the point where a final decision is made as to the appropriate theory.

GLEESON CJ: But an angiogram is itself a diagnostic procedure?

MR MOSHINSKY: It is a diagnostic procedure.

GLEESON CJ: So, if a decision had been taken to have an angiogram, that would have reflected the judgment that the task of diagnosis was incomplete?

MR MOSHINSKY: Yes, that is so, your Honour. That is why we come back to what Mr Jensen said. He said, even at the trial, he did not think there was a need for an angiogram, indicating that his belief, we say, that at the time he had completed his task, that his diagnosis was correct, on the available evidence.

KIRBY J: I mean, it may be that the jury would ultimately agree with that.

MR MOSHINSKY: Yes.

KIRBY J: After all, lots of little boys go into emergency awards at hospitals – and this is 20 years ago ‑ ‑ ‑

MR MOSHINSKY: Yes, of course.

KIRBY J: ‑ ‑ ‑and complain of being hit on the head or falling out of trees and so on and they have had a period of fainting and you would not conduct an angiogram on everyone of them.

MR MOSHINSKY: Yes.

KIRBY J: I mean, that would be ridiculous.

GAUDRON J: This was a five minutes unarousable deep coma, was it not?

MR MOSHINSKY: Yes.

KIRBY J: So, you have to take that fact and, I suppose the facilities are available, but when you get a doctor saying, “They should have done this. They should have done this” and it is repeated evidence of “should”, it just seems to me very hard to say there is no evidence to go to the jury. The jury may ultimately be persuaded that it is completely unreasonable to insist that they have done the angiogram but that is a jury question.

MR MOSHINSKY: Yes. Well, your Honour, that is exactly our submission. The Court of Appeal, what it said, having reviewed Mr Cummins’ evidence, at page 843, line 9 onwards:

It may be noted that none of the medical witnesses said that an angiogram should have been conducted before the appellant was discharged from Western General Hospital. Indeed, Klug went so far as to say that in his opinion it was “not unreasonable” that the appellant was discharged from hospital when he was. That opinion is not consistent with the conclusion for which the appellant contended, that other tests should have been conducted before the boy was discharged. The furthest that Klug went in his evidence, as the parts of his evidence I have emphasized reveal, was to say that an angiogram should have been “considered”.

Now, we would take issue with that in our submissions in writing them today. We say a proper evaluation of the evidence is more than just consideration, having considered there is no meaningful way in which you could give consideration in this case, without having an angiogram.

It was suggested to us that the witness should be understood as having meant not simply that Jensen should have thought about conducting an angiogram but that, having considered it, he should then have ordered it. In this respect, the learned trial judge was in a far better position than we are to detect the intended meaning of the witness’s answers.

We say we take issue with that for the same reason; that it is really just a matter of analysing the words rather than looking at the demeanour or credibility or manner of delivering an answer. The words were that the only way of confirming that consideration was by having an angiogram.

Counsel for the appellant submitted that we should understand the witness to have been (as he put it) “speaking politely” and that the witness was of the view that action was required, not simply thought.

That was my submission.

I greatly doubt that that is so. As one would expect, the witness gave his evidence with great care and, as I would judge it, with considerable attention to his choice of words. In the end, I very much doubt that his reference to the need to “consider” an angiogram was intended to convey more than was said expressly. But the trial judge was in a far better position than we are to determine that and he resolved the question against the appellant when he held that none of the medical witnesses faced with a patient such as the appellant would have ordered an angiogram.

We take issue for the same reasons with that comment.

GLEESON CJ: Mr Moshinsky, in the answer to some questions that Justice Callinan asked you, you said that in the absence, at least, of provisions such as we have in the Evidence Act now about asking the ultimate question of an expert witness, it was not proper to ask a witness “Was it negligent to do this?”.

MR MOSHINSKY: Yes.

GLEESON CJ: Would it have been proper to ask a medical witness the following question, “If you had been confronted with this situation, would you have ordered an angiogram?”?

MR MOSHINSKY: We would say that would not have been proper because he would have to give evidence about the general standard practice. If he cast his answers in the form of “My understanding of the general practice in this situation would have been to give an angiogram ‑ ‑ ‑

GLEESON CJ: Would it be proper to ask a medical witness, either in examination‑in‑chief, or in cross‑examination, “If you had been in the position of Mr Jensen, would you have done anything different from what he did?”?

MR MOSHINSKY: It would have been proper to.

GLEESON CJ: I did not hear you. Would that have been a proper question?

GAUDRON J: You could say it is irrelevant.

MR MOSHINSKY: We would say that, in fact, it is not the issue. The issue is what the general practice was rather then ‑ ‑ ‑

GAUDRON J: Unless it went to credit?

MR MOSHINSKY: Yes, it is consistent with my last answer. It is a matter of what the practice at the time was considered as safe or reasonable to have been.

GLEESON CJ: Would not what he would have done be some evidence of the practice?

MR MOSHINSKY: We say that it is of such little weight that it ought not to be accepted because what one doctor does, does not necessarily reflect what every other doctor regarded as normal or acceptable. He may not have been acting correctly. His own view is not the one that is in issue.

CALLINAN J: The best way to deal with this sort of matter is, I think, by the use of local statistical material if it is available.

MR MOSHINSKY: Yes.

CALLINAN J: That is the best way of – I mean, every case is different, but it can often lay a foundation. But, it seems to be rarely done. So, how many of these cases are there, and in general, what was the way in which they were treated at that time? What was done, what was the results? Nobody ever seems to do it that way, and the statistics are available, I feel.
MR MOSHINSKY: Yes. We would support the views of statistical evidence, particularly when it comes to ‑ ‑ ‑

CALLINAN J: It is not the only evidence but it is a basis from which to proceed.

MR MOSHINSKY: The jury would have to look at what was reasonable in the circumstances, applying the standard of care to the particular specialist, so it has to look at a general picture and, therefore, answers such as “I think it was reasonable. I think it was not negligent. I would have done things differently.” Do not really deal with that issue which is the how the standard of law applies to the facts of this particular case.

GLEESON CJ: Well, in a solicitor’s negligence case, evidence of proper conveyancing practice is often given in the form of an experienced solicitor setting out the routine that it was his or her practice to follow.

MR MOSHINSKY: That is so, your Honour, and, in this case, what we say is that it was very clear that Mr Klug said that consideration should have been given and he was there speaking from the benefit of his own experience. There he was, on the issue of consideration, applying medical knowledge and skill to a way in which it should have been handled, in his view, as a specialist.

GLEESON CJ: One of the awkward aspects of the case from both sides’ point of view, as I understand it, at the trial was that it seems to have been generally accepted that an angiogram was an invasive and risky diagnostic procedure.

MR MOSHINSKY: Yes.

GLEESON CJ: So that there was a considerable gap between considering it and doing it.

MR MOSHINSKY: Yes. That is one of the issues that came out in the trial, your Honour. But Mr Cummins was very clear that if there had been consideration, then an angiogram would most certainly have been given so his evidence was available to that extent. Mr Klug certainly fell into that category that your Honour has mentioned but Mr Cummins was quite clear‑cut about it, but he qualified it by saying, “It is a matter of hindsight” but we say that is not really a qualification because every negligence case is a matter of hindsight.

McHUGH J: The provisional diagnosis was that you had this traumatic subarachnoid haemorrhage and a subacute extradural haematoma in the posterior fossa.

MR MOSHINSKY: Yes.

McHUGH J: The CAT scan showed there was no haematoma.

MR MOSHINSKY: Yes.

McHUGH J: Did that play any significance or was that regarded as throwing any light on the doubts of the diagnosis or a point that ought to ‑ ‑ ‑

MR MOSHINSKY: It was neutral, your Honour.

McHUGH J: Just simply neutral.

MR MOSHINSKY: It is just simply neutral. That is what Mr Klug said. He just did not say one way or the other. If I could continue with the Court of Appeal at page 844:

Even assuming, however, that the appellant could pass over this hurdle, there is, in my view, a still further difficulty in the argument advanced. All of the medical witnesses said, in effect, that the diagnosis of traumatic subarachnoid haemorrhage was a reasonable diagnosis. It was, after all, a diagnosis consistent with the history with which the patient presented – a history of a blow to the head and evident intracranial bleeding. It is equally clear that there were some features which, as they emerged, were regarded as unusual. An essential step in the appellant’s argument was that the emergence of those features should have required the medical defendants to act before the second episode of bleeding on 25 July 1980. But no doctor said that this was so. Indeed, for the most part it was the persistence of some of the symptoms which was unusual and it may be that the very fact of their persistence might, at some time, have required a neurosurgeon exercising reasonable care to reconsider the diagnosis that had been made.

KIRBY J: Can I just ask you to pause there?

MR MOSHINSKY: Yes.

KIRBY J: This all seems to be examining whether negligence was established but that is a matter for the jury.

MR MOSHINSKY: Exactly, yes.

KIRBY J: If there is any evidence it has to go to the jury, it is not for the Court to be substituting its opinion for that of the jury where a jury is summoned.

MR MOSHINSKY: We say that is one of the vices that taints this particular set of reasons and it is evident in this passage and also ‑ ‑ ‑

KIRBY J: I mean, I personally find it reasonably persuasive about the lack of negligence, but I am not the tribunal of fact, nor was the Court of Appeal.

MR MOSHINSKY: Yes. We say that the Court of Appeal, like the trial judge, ended up, perhaps unwittingly or unconsciously, acting as the tribunal of fact making final decisions on evaluating the evidence in this passage and also in a passage ‑ ‑ ‑

GLEESON CJ: That is not the way it is put in the last sentence of that paragraph:

there was no evidence which justified a conclusion about when reasonable care would have required re‑consideration of the diagnosis –

As a proposition of fact, that may be right or it may be wrong but it does not appear to reflect a misunderstanding of the appropriate test.

MR MOSHINSKY: No, it certainly does not do that, your Honour, and I do not make that submission, but we say that properly analysed it comes down to a conclusion about the weight of the evidence even though it is formulated in the manner in which it has been, that when one really looks at the basis for that conclusion, that there was no evidence.

GAUDRON J: You must say it misunderstands the evidence.

MR MOSHINSKY: It misunderstands the evidence.

GAUDRON J: Particularly the evidence that, given the symptoms, a different diagnosis should have been considered once the CAT scan came back.

MR MOSHINSKY: Yes, your Honour, so it is a misunderstanding. Thus there was the evidence of Klug which I have quoted about the differing views that neurosurgeons might well have entertained had they been asked to interpret the signs. Taken in context the evidence of Cummins, which I consider to be the most favourable on this aspect of the appellant’s case, was that if a diagnosis of aneurism or subarachnoid haemorrhage had been entertained, an angiogram would have been taken. But that was said, so we were told, in a tone which implied that it was obvious. No doctor said in evidence that before the appellant was discharged on 23 July or before the second bleed occurred on 25 July Jensen should have made a diagnosis or aneurism or subarachnoid haemorrhage.

The furthest the evidence went was that such a diagnosis might have been considered or entertained or, in the case of some medical witnesses, that with the benefit of hindsight such a diagnosis could now be seen as appropriate to explain the unusual clues or signs that were present. No doctor said that the unusual signs or clues required revision before the appellant was discharged of the diagnosis that had been made. So what the court is there saying, we say, is that because there was no evidence in terms to the effect required that there should have been a reconsideration by a certain time, there was no evidence.

GLEESON CJ: Mr Moshinsky, where is the evidence of Cummins that is referred to in that passage on page 844 at line 20?

MR MOSHINSKY: I will just take your Honour to that evidence. Cummins’ evidence is summarised at page 9 of our written submission but ‑ ‑ ‑

GLEESON CJ: Yes, but where is the evidence, the understanding of which turns upon the tone of voice in which it was said?

MR MOSHINSKY: I believe that must be referring to the passage relating to hindsight.

GLEESON CJ: Where is that?

MR MOSHINSKY: And that has already been quoted in the reasons ‑ ‑ ‑

GAUDRON J: Yes, but where do we find it in the appeal book?

MR MOSHINSKY: It is appeal book 348, line 20.

GLEESON CJ: Thank you.

MR MOSHINSKY: If I can read from that:

And in your view, ought the aneurysmal haemorrhage have been fitting into that category?---Yes, it should. Other causes of subarachnoid haemorrhage could have been fitted into the category, but it is a matter of weighting, by weighting I mean w-e-i-g-h-t, putting weights on decisions one makes in the situation.

GLEESON CJ: Which is the evidence that was given in a certain tone of voice?

MR MOSHINSKY: There is no – I cannot answer that question, your Honour, because I am not aware of anything in the transcript which indicates anything about the tone or voice or how it was said.

GLEESON CJ: Well, which is the evidence that was given to the effect that if a diagnosis of aneurismal subarachnoid haemorrhage had been entertained an angiogram would have been undertaken.

MR MOSHINSKY: Yes. At appeal book 354, line 25.

GLEESON CJ: Thank you. Now, once again, I am sorry to ask a question that may simply reveal my ignorance of medical terms but, what precisely does the word “entertained” mean in this connection, “entertaining a differential diagnosis”? Does that just mean considering a possibility?

MR MOSHINSKY: Yes, that is what we understand.

GLEESON CJ: So, this evidence you understand to mean that if anyone had even considered an aneurism a possibility, such a person would have undertaken an angiogram?

MR MOSHINSKY: “Seriously considered it” in the language used of Mr Klug. Not just a fanciful consideration but if it was a serious option ‑ ‑ ‑

GLEESON CJ: Well, there is an element of circularity there, is there not?

MR MOSHINSKY: Yes.

GLEESON CJ: It may be that one way of putting it is to say, “If someone had considered it a sufficiently serious possibility to undertake the risks involved in an angiogram, then a certain course of action might have been followed”.

MR MOSHINSKY: With respect, your Honour, we would put it quite differently. We would say that if someone had viewed the clinical signs in this case and had become uncomfortable with the diagnosis of traumatic cause and was looking for other possible explanations, given those clinical signs, one obvious possible explanation was an aneurismal cause. And given that that was something that could explain it given the clinical signs, one would then necessarily have taken an angiogram on. It is not that one would weigh up, first of all, whether or not it is safe to give an angiogram then consider whether or not it fits in to an alternative theory. It is the other way round: you look at the symptoms and you say, “Look there is something that just does not fit. The explanation we have just does not answer the picture”.

GLEESON CJ: “Therefore it is not a reasonable diagnosis.”

MR MOSHINSKY: “It is a diagnosis which should be doubted and let us look for something else” and they have other possible signs, “so we look at aneurismal haemorrhage as a diagnosis. Having regarded that as a real possible explanation, you then do an angiogram”. That is what we understand the way in which the answer is put. It is not a fanciful alternative theory. It is really something that could very well fit the bill.

GLEESON CJ: I am not suggesting for a moment that what I am about to put provides an answer to your argument, but it is the case, is it not, that the problem has to be considered in the light of two facts. One is the fact that diagnosis is, itself, something that is developing. It is an ongoing activity. The other is for a diagnostic procedure that involves risk, as I understand it, to the life of the patient to be undertaken, there has to be a significant possibility that the diagnosis under consideration is such as to warrant that risk.

MR MOSHINSKY: With respect, your Honour, we take issue with that formulation. We say that it is not whether the diagnosis creates the risk, it is whether the method of testing creates the risk. So that you can still go ahead with another diagnosis but you just do not go around testing for it to be definitely sure of it by giving an angiogram if there is a very high element of risk.

GLEESON CJ: That is why I am having some difficulty understanding the evidence of Mr Cummins between lines 20 and 25 on page 354, but I think we have your submission as to what that evidence means and we can hear your opponents in due course.

MR MOSHINSKY: Just to complete my submission on that, we refer the Court to appeal book 343, lines 12 to 16, where Mr Cummins gives evidence about what he has seen from the CAT scan. The question was:

the evidence has been that the aneurysm was found in the area of that area of the fourth ventricle. Does that accord with your reading of the Alfred Hospital notes?---Those scans are consistent with a subarachnoid haemorrhage from an aneurysm in the region or an arteriovenous malformation in the region.

So that the CAT scan, as I said, was neutral on the issue of what the cause was. The cause could have been either aneurismal or traumatic. Then he goes on to describe all the other signs which would require another way of explaining the situation, that trauma was not the only realistic way of doing it, and therefore he says, “Having entertained that other way, I believe anyone who would have entertained it would have performed an angiogram to be sure”. Going back to our formulation of the duties of a doctor. We say that in the first place the doctor is bound to consider all relevant circumstances which confirm or exclude a diagnosis before he reaches a reasonable diagnosis. Then he must confirm that if it is safe to do so; if it is reasonable in the circumstance to do so. We do not say that every doctor must perform unsafe tests, but if he fails to properly consider all the alternative signs, all the various signs, and form a realistic diagnosis, then that is, in itself, a breach of duty of care, and for us it is sufficient to go to the jury.

May I then go back to the Court of Appeal and just complete the passages I have read. I have nearly come to the end of the reasons. At page 844 line 17:

Thus, there was the evidence of Klug (which I have quoted) about the differing views that neurosurgeons might well have entertained, had they been asked to interpret the signs. Taken in context, the evidence of Cummins…..was that if a diagnosis of aneurysmal subarachnoid haemorrhage had been entertained, an angiogram would have been undertaken. But that was said, so we were told, in a tone of voice which implied that it was obvious. No doctor said in evidence that before the appellant was discharged…..Jensen should have made a diagnosis of aneurysmal subarachnoid haemorrhage. The furthest the evidence went was to say that such a diagnosis might have been “considered” or “entertained” or, in the case of some medical witnesses, that with the benefit of hindsight such a diagnosis could now be seen as appropriate to explain the unusual clues or signs that were present. No doctor said that the unusual signs or clues required revision, before the appellant was discharged, of the diagnosis that had been made.

And if all that Klug meant, by the answers which he gave, was that Jensen should have thought about ordering an angiogram, this evidence did not establish any actionable breach of duty if only because there was no evidence that Jensen did not consider the possibility. If he did not consider the possibility, it would then be necessary to consider what damage was caused by that failure. I am by no means certain that the answer proffered on behalf of the appellant (that he lost the chance of proper treatment) is a sufficient answer but I need not decide whether that is so.

KIRBY J: Let us just pause there. So far as Dr Jensen was concerned, he did not say that he did not, or that he did. He just said that he could not remember.

MR MOSHINSKY: That is right, your Honour.

KIRBY J: And, the suggestion is that there was some evidence, at least in the form of an inference, from the fact that it was not recorded and nothing was done to put into effect what would have flowed had he given consideration to the possibility of the need for an angiogram.

MR MOSHINSKY: Yes, and that is the complaint we have with that passage, that there was some evidence on which the matter could go to the jury. We say once again that the court misunderstood the evidence and it really comes down to an evaluation of the evidence by the court to come to a conclusion that because he did not say that he did not consider it, the jury may well have – there is no way in which the jury could consider the matter further. I again emphasise that the case was taken away from the jury at the conclusion of Mr Jensen’s evidence, so the jury may have rejected Mr Jensen’s evidence because of whatever reason was appropriate. They did not have to accept his evidence on that issue.

KIRBY J: Juries have been virtually abolished in civil causes in New South Wales and therefore this is a problem that is not very often visited in civil matters in New South Wales but, reaching back to memory, one can remember those dramatic events at the end of the plaintiff’s case normally or at the end of the trial when the defendant moved for a verdict and the concentration was not on whether the plaintiff had a good case or not – it never was. It was on those little tiny bits of evidence that the plaintiff relied upon to get into the jury room. That was a very precise, very specific attention to evidence and it was not attention to whether the plaintiff had a good or a bad case or whether the plaintiff should win or should not win. It is a very narrow issue.

MR MOSHINSKY: Yes, your Honour.

KIRBY J: There is an article by Justice Glass who was a real expert in this area in the Australian ‑ ‑ ‑

MR MOSHINSKY: We have referred to that in our submissions, that article, and we have ‑ ‑ ‑

KIRBY J: I think it is there that we will find the clue to this, not on whether the plaintiff has a weak or a strong case. I mean, I think, looking at what the Court of Appeal has analysed, the plaintiff has a rather weak case but that is just my impression. The right belongs to the jury, not to judges.

CALLINAN J: Mr Moshinsky, in Doney, the criminal case, this Court put it this way: if there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the jury and is capable of supporting a verdict, the matter must be left to the jury for its decision. That is in a criminal case. You cannot be in any weaker position that that, I would have thought.

MR MOSHINSKY: We respectfully adopt that statement of the law. We have a number of authorities where we refer to that for that proposition in our list of authorities under the “No evidence” head. I do not wish to read them all but they support that proposition. The New South Wales Court of Appeal, referring to Mr Justice Glass’s article, has a passage in McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 43 at pages 47 to 48. If I could just read that passage:

A trial judge who is confronted with a submission that an issue should be withdrawn from a jury for lack of evidence is required to determine whether there is any evidence upon which the jury could reasonably find that the party opposing the motion has made out his case on the probabilities on that issue. In considering the motion the judge is bound to pay regard only to the evidence which favours the party opposing the motion and to disregard the evidence in favour of the proponent of the motion.

On page 48A to C the court quotes from Mr Justice Glass’s article to which your Honour has referred:

The approach which a trial judge is required to take when faced with a submission that an issue should be withdrawn from the jury because of a want of evidence was described in pithy terms by the late Mr Justice Glass. He said:

“… It (ie the test of insufficiency) inquires whether there is evidence capable of satisfying the jury, on a balance of probabilities, that each of the constituents of the plaintiff’s claim has been established. The evidence to be measured for its sufficiency in this respect is confined to that evidence which favours the plaintiff. The evidence favouring the defendant is to be disregarded. There is evidence capable of discharging the onus which the plaintiff bears even though the countervailing evidence preponderates. The evidence is sufficient if the jury, accepting the plaintiff’s evidence and disregarding all evidence to the contrary, could reasonably be satisfied that the plaintiff’s claim has more probably than not been established.”

That is the proposition ‑ ‑ ‑

McHUGH J: I am not sure that is, with due respect to Mr Justice Glass, entirely in accordance with at least one well-known authority in New South Wales called De Gioia v Darling Island 42 SR(NSW) which was a case where it was held that, although at the conclusion of the plaintiff’s case there may have been a case to go to the jury, once the defendant’s explanation of that evidence was taken into account, there was no case to go to the jury. That was a judgment of Sir Frederick Jordan.

MR MOSHINSKY: Yes.

McHUGH J: That leads me to ask you this question in this case. If you go to 348 of the appeal book, I think, at the moment anyway, it would be open for the jury to hold that there should have been consideration given to the diagnosis of an aneurism. You couple that with what was said at 354 about you should have:

entertained the diagnosis –

prima facie, it seems to me at the moment, without hearing Mr Bongiorno, that there was a strong case to go to the jury on that aspect but then, if you look at the admission that is extracted at 359 by Mr Bongiorno at line 15:

doing the best you can to put aside hindsight and knowing what Mr Jensen knew on the ground, his overall treatment of this boy was entirely reasonable, wasn’t it?---Knowing what he knew and making the interpretations that he did it was entirely reasonable.

GAUDRON J: But the question is was the interpretation reasonable, is it not, which is the earlier evidence?

McHUGH J: Having regard to that answer, would a jury be entitled to say that failing to take further steps, diagnose further evidence of negligence on the part of Mr Jensen?

MR MOSHINSKY: We say it would have because that answer must be looked at in the context of all the evidence of Mr Cummins and that the jury would be asked on behalf of the plaintiff to interpret that answer to mean that it was reasonable to have a provisional diagnosis, but it was not reasonable, in terms of getting the final diagnosis or the total diagnosis, to go on and not consider further another cause and to conduct the tests.

McHUGH J: But the question was, “his overall treatment”. It was not his initial treatment. It was his overall treatment.

MR MOSHINSKY: Well, once again we say that is a distinction that does not make clear what it is that is being asked. It could be that the doctor - and, we say, the doctor must have considered that overall Mr Jensen regarded this as being an incident caused by trauma. That was, overall, a reasonable way of looking at it but it was not the correct way or the best way.

McHUGH J: But if it was a reasonable way, how is there any evidence of negligence?

MR MOSHINSKY: Because looked at in the context of the whole of the evidence, he should have conducted further consideration of the matter. It was just a limited view, is what – it is an interpretation that he placed on what he was shown. I think the question is, knowing what he did and making the interpretations that he did it was entirely reasonable.

GAUDRON J: You have to put the weight of your argument, have you not, on making the interpretations that he did?

MR MOSHINSKY: Yes.

CALLINAN J: And, Mr Moshinsky, you have still got Mr Klug at page 162, line 14:

I think one would have to be concerned that there could be some other disorder in the person which has produced in a subarachnoid haemorrhage, other than the instance of trauma.

MR MOSHINSKY: Yes.

CALLINAN J: It is the use of the word “one would have to be concerned”.

MR MOSHINSKY: “Have to be” yes, and even in cross-examination, although with one breath Mr Klug says, “Yes, it was reasonable or not negligent” he said, “But I still think there should have been consideration given”.

CALLINAN J: Well, I do not think he should have been allowed to ask that question.

MR MOSHINSKY: No, your Honour.

CALLINAN J: But he was.

MR MOSHINSKY: Yes.

KIRBY J: Can I ask you, just taking up Justice McHugh’s point - it is very important we get the legal principle correct – is the legal principle that you disregard all of the evidence favourable to the defendant or is the legal principle that you look at all of the evidence at the end of the case, if the defendant goes into evidence, and you conclude from the balance of that evidence because that seems to be what the Court of Appeal has done here, whereas Justice Glass, who did an awful lot of these thing - and I sat with him as his junior when he did a number of them - would not be likely to make a mistake. Now, which is the correct principle, and in terms of legal principle?

MR MOSHINSKY: Well, we say the correct principle is one where you disregard the evidence in favour of the defendant but look ‑ ‑ ‑

KIRBY J: Is that on the footing that the jury may always do that and it is their province to?

MR MOSHINSKY: Yes, that is so.

GLEESON CJ: But there is a considerable oversimplification involved in that, is there not? Different pieces of evidence may be of a different nature.

MR MOSHINSKY: Yes.

GLEESON CJ: As Justice McHugh mentioned earlier, one piece of evidence might be explanatory of another piece of evidence and there might be no dispute about the explanation. The principle does not require that you disregard the explanation, does it?

MR MOSHINSKY: No, it does not. There is obviously a matter of judgment that has to be undertaken in looking at what the meaning of any particular evidence is. One has to relate the evidence – one evidence bit of evidence with another bit of evidence, but one ‑ ‑ ‑

GLEESON CJ: It would be far too mechanistic to say that you rigidly disregard any piece of evidence on which the defendant might want to rely.

MR MOSHINSKY: Yes, but what we say is that when you look at all of the pieces of evidence together you look at it in the most favourable light for the plaintiff.

GLEESON CJ: Yes, which is a different thing.

MR MOSHINSKY: It is not a mechanistic task. Mr Justice Tadgell in Protean (Holdings) made that clear and the word “reasonably” is used in the principle.

KIRBY J: So, you withdraw from what Justice Glass said in his article, that you disregard? You say you do not disregard but you have regard to the view which, acting reasonably, the jury might take of the whole of the evidence, that being its entitlement to accept parts and reject parts?

MR MOSHINSKY: Yes, but the balance ought to be in favour of the plaintiff. In other words, it is not an evaluative – there comes a point in time when Justice Glass’ view is absolutely correct and that is that the court should not have to make its own decision about which particular inferences are to be preferred. If it is possible, looking at all the evidence, to find an inference in favour of the plaintiff, that is sufficient evidence. In other words, you do not disregard all the evidence but you look at all the evidence and say, “Can any case be made out for the plaintiff?”

If, for example, although the evidence for a plaintiff is from a witness who says one thing, but his credibility is attacked very, very strongly. it may be that a case will come up where it is not possible to accept the plaintiff’s evidence because of an extreme situation where the plaintiff’s credibility is so suspicious.

McHUGH J: And it may not be that way. Take the days when waterside workers were casual employees and proving employment as to who the employer was, was often a matter of some difficulty. Usually one would rely on a group certificate or a pay slip, and so that might make a prima facie case, but the defendant then might be able to show by its evidence an overpowering case that, although the pay slip was made out in the name of one company, it really was not. The employer had no control of the operations on that day. Now, in that context, can the plaintiff go to the jury just relying on the pay slip with the name of the defendant and say, “I want you to disregard all this other evidence, although it just points overwhelmingly to the fact that the named defendant was not the ‑ ‑ ‑

MR MOSHINSKY: Yes, we say he could.

McHUGH J: You do?

MR MOSHINSKY: We do, and ‑ ‑ ‑

GLEESON CJ: Let me take another example closer to the present case. Suppose that this incident occurred, not at Melbourne, but in a remote country town. And suppose that the plaintiff put his case and then it emerged for the first time, in the evidence relied upon by the defendant, that there were no facilities in the country town for conducting an angiogram within the timeframe relied upon by the plaintiff. Could the plaintiff’s case - or could a decision as to whether the plaintiff had a case to go to the jury disregard the evidence called by the defendant that there were no such facilities available?

MR MOSHINSKY: We say, yes, your Honour, because the case of the plaintiff is, in this case, that there should have been consideration given to an alternative diagnosis. It is not the angiogram. The angiogram is a way of testing it. Had there been consideration given, the plaintiff could have been kept in hospital longer and been given Amicar and kept rest, and the risk would have been greatly reduced. It is not just the failure to give the angiogram in this case that we emphasise, and that is very important for our case that what we say happened here was because there was a failure to consider, the risks of injury to the plaintiff increased. That material risk was one which ultimately led to the damage in this case. It is the damage that was part of that area of risk that was created.

GLEESON CJ: Mr Moshinsky, there is another aspect of the case related that is troubling me, and it may be this is in your favour. As I read the evidence, it is not entirely clear what exactly the doctors were saying about some aspects of this matter. To what extent is it properly within the function of the trial judge, or then the Court of Appeal, in considering the issue that arose here to, as it were, interpret the evidence of witnesses whose meaning may not be absolutely clear, and to what extent is that a proper jury function?

MR MOSHINSKY: Well, we say it is not really a function to give a final interpretation of this sort of evidence but the Court of Appeal must look at the evidence and see if there is an inference that can be drawn in favour of the plaintiff’s case and then that can go to the jury and the jury can then consider which inference is to be drawn.

GLEESON CJ: Well, in so far as it seems to have been thought on page 844, line24, that something significant might have turned upon the “tone of voice” of a witness, that does not quite sound like an exercise for the trial judge rather than the jury.

MR MOSHINSKY: Yes, well we accept your Honour’s comments on that. We say it is not really a matter for a Court of Appeal or for the trial judge. It is really a matter for the jury to understand what was meant and since it is possible to infer from Mr Cummins’ evidence at the passages we read that he said that there was the need to consider another diagnosis and to test it, whatever the tone of voice may have been or whether he used the word “hindsight” or not, there was enough there to infer that there was a breach of duty.

CALLINAN J: But, Mr Moshinsky, can you answer a question for me? It does go to the point, but was Mr Klug cross‑examined twice? There seems to have been two cross‑examinations of him by, is it, Mr Gillies?

KIRBY J: It might have been for the school- - -

MR MOSHINSKY: I believe that is the case, yes.

CALLINAN J: Was he counsel for the school?

MR MOSHINSKY: He was counsel for the school.

CALLINAN J: I am sorry. It was not all in Mr Bongiorno’s interest.

MR MOSHINSKY: No.

KIRBY J: Can I ask, do you dispute the principles stated in the Victorian Court of Appeal Full Court in Protean? Are they a correct statement of the principles?

MR MOSHINSKY: No, I do not dispute those principles.

KIRBY J: You will recall that passage you read from Justice Glass’ article where he said, “The question is whether the plaintiff has evidence on all of the elements in the tort?”

MR MOSHINSKY: Yes.

KIRBY J: Now, that could involve, in this case, a duty of care. Well, that would not really be disputed. Damage, at the other end, that would not be disputed, but then there are the critical ones, breach of the duty and causation.

MR MOSHINSKY: Yes, and causation.

KIRBY J: Now, we have gone through breach of the duty but on the question of causation was there anything more than in Mr Cummins’ evidence that had they conducted, or decided that it might require the angiogram, that the angiogram would have been done within the time that would have intervened before the bleed that led to the profound injury.

MR MOSHINSKY: And there was also Mr Klug’s evidence on that issue, that is similar evidence. He said ‑ ‑ ‑

KIRBY J: What page?

MR MOSHINSKY: At page 264, lines 3, 17, 19 and 22. If I could just summarise what he said, that is even though the second bleed may have occurred on the 11th day without an angiogram having been performed, that if an aneurism had been diagnosed, then measures could have been undertaken to:

reduce the chances of a subsequent bleed.

These included keeping the appellant in hospital, ensuring that his blood pressure was not unduly elevated and that he remained calm and a drug known as aminocaproic acid or Amicar could be administered to reduce the risks of a haemorrhage.

At page 167, lines 4 and 21, he said at the time of his discharge the appellant was fit enough to be operated on to ensure that his aneurism was clipped so that if you had a diagnosis, if you thought of another diagnosis and you had a serious consideration given, as he said, to aneurism as a cause, the least that you could have done would have been to keep him in hospital longer and reduce the risk of bleeding but if you decided to go ahead and give an angiogram, you might have found out for sure there was an aneurism and then there was a real possibility of the aneurism being clipped and the damage being completely averted.

KIRBY J: Do you say it is a jury question as to at what point that angiogram would have been administered and the clipping would have taken place?

MR MOSHINSKY: Yes, it is a jury question, we say, because there is an inference available on the evidence, a reasonable inference, that it could have been done at the time of the CAT scan on 19 July because the blood was considerable.

McHUGH J: Earlier I asked you about the haematoma and you said that Mr Klug regarded it as neutral. I am not sure that Mr Cummins regarded it as neutral. If you look at the bottom of page 359 over to 360, in the re‑examination he said that he looked for something that was not there – that is Mr Jensen – and then at the bottom of the page:

What was your answer to my learned friend that it was not there meant to be relevant to?---That there was no haematoma there to explain the clinical course.

MR MOSHINSKY: Yes, I accept that.

McHUGH J: He seemed to place ‑ ‑ ‑

MR MOSHINSKY: That suggests that he thought that the CAT scan was more significant.

McHUGH J: The failure to support the provisional diagnosis in its entirety?

MR MOSHINSKY: Yes, there was. Yes, I accept that. Your Honours, may I move to the other two issues which are causation and damage. Our written submissions summarise our arguments on causation. We rely on three different ways, as I said to the Court, to say that there was causation.

KIRBY J: Can I just ask you just before you get into the next issue: what is the classic statement of the principle in this Court on the issue that we have just been debating? I am sure the matter must have come up many times in those days.

MR MOSHINSKY: Could I refer your Honour to it. It is Hocking v Bell.

GLEESON CJ: We look for “scintilla”.

MR MOSHINSKY: It is in (1945) 71 CLR 430, more particularly at pages 442 and 443, a very short passage, if I could read it. Chief Justice Latham says:

There is sometimes great difficulty in distinguishing between a case of no evidence upon which a jury could reasonably find for a plaintiff (so as to justify entry of a verdict for the defendant) and a case of some evidence for the plaintiff but greatly preponderating evidence for the defendant (where a verdict for the plaintiff can be set aside and a new trial ordered but it would be wrong to direct a verdict for the defendant). Davidson J and Halse Rogers J refer to this difficulty in this case. But this distinction, though difficult to apply in particular cases, is very real and important. The relevant ‑ ‑ ‑

GLEESON CJ: Just before you complete that page, in the earlier paragraph what Chief Justice Jordan said in De Gioia is quoted with approval.

MR MOSHINSKY: Yes. Should I read that, your Honour?

GLEESON CJ: No, but I just thought that should be noted, since it was mentioned earlier by Justice McHugh.

MR MOSHINSKY: Yes, your Honour:

The relevant principle was expressed in Dublin, Wicklow and Wexford Railway Co v Slattery by Lord Hatherley, who said that he concurred with Mr Justice Barry’s opinion in the court below, viz: “When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.” The question for the court is not a question whether the evidence for the plaintiff should be believed or not. In the last‑cited case their Lordships all agreed in this view and they emphasized the importance of maintaining that principle under a system or trial by jury. The headnote fairly states the decision: “Where there is conflicting evidence on a question of fact, whatever may be the opinion of the judge who tries the cause as to the value of that evidence, he must leave the consideration of it for the decision of the jury.”

GLEESON CJ: Just pausing there, not all evidence falls into the category of contradictory evidence or conflicting evidence.

MR MOSHINSKY: That is so, your Honour:

The judge must leave the case to the jury, because, however preponderating the evidence against the plaintiff may be in his opinion, it is a matter for the jury to determine what evidence they believe.

KIRBY J: Now, you are reading Chief Justice Latham, although he dissented, because when the matter went to the Privy Council they reversed this Court?

MR MOSHINSKY: Yes.

KIRBY J: Justice Dixon, I see, also dissented with Chief Justice Latham. Did his Honour say anything on this principle different or ‑ ‑ ‑

MR MOSHINSKY: I am not sure that I have got a passage for him on that point.

KIRBY J: If you have not got one we can look at it ourselves.

MR MOSHINSKY: No, I have not got any passage.

KIRBY J: And did the Privy Council say anything that was different from what Chief Justice ‑ ‑ ‑

MR MOSHINSKY: No. Your Honour, this passage is the one that is quoted in all the cases as the classic statement, your Honour.

KIRBY J: Very well.

MR MOSHINSKY: If I then move to the questions of causation, what we say is:

that the breach of duty -

of care -

coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to a breach –

and that is a passage from Betts v Whittingslowe (1945) 71 CLR 637 and 649. Here we say that if one looks at the case narrowly, in terms of the evidence being no more than there should have been serious consideration, then there was a breach of that duty. There was not, or arguably not, there was not serious consideration given, and after that the accident did occur, the second the bleed did occur, and unless there is anything put forward to suggest that the act or omission would have happened anyhow, a causal link can be established. Now, your Honour Justice Gaudron in Chappel v Hart ALJR 1346, adopted that principle. I refer to paragraph 8:

It was not disputed in this Court that Dr Chappel was under a duty to inform Mrs Hart of the possible consequences in the event of the perforation of her oesophagus and subsequent infection, including the possibility of damage to her voice. The duty was called into existence because of the foreseeability of that very risk. The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed in Betts v Whittingslowe, albeit in relation to a statutory duty, “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission –

And then at paragraph 10:

The matter can be put another way. If the foreseeable risk to Mrs Hart was the loss of an opportunity to undergo surgery at the hands of a more experienced surgeon, the duty would have been a duty to inform her that there were more experienced surgeons practising in the field. Because the risk was a risk of physical injury, the duty was to inform her of that risk. And that particular duty was imposed because, in point of legal principle, it as sufficient, in the ordinary course of events, to avert the risk of physical injury which called it into existence. And the physical injury having occurred, breach of the duty is treated as materially causing or contributing that injury unless there is “sufficient reason to the contrary”.

In this case, to use that form of analysis, if the foreseeable risk was to avoid damage because of the failure to provide a reasonable diagnosis, the duty would be to avoid damage and to consider and investigate any reasonable possible diagnosis so as to decide the most appropriate one.

GLEESON CJ: The headnote is wrong. It says that the decision of the Supreme Court of New South Wales was reversed.

MR MOSHINSKY: Yes, it is wrong. Supreme Court of New South Wales, yes.

KIRBY J: The order at 1378 is correct.

MR MOSHINSKY: Yes, I do not know what the explanation of that is, your Honour. So that, applying that form of analysis, we say that there is a clear causal link because the foreseeable risk by reason of the failure to consider was that an incorrect diagnosis would eventuate and by reason of that there would be considerable damage in the form that actually happened. So, that is one way in which we look at the question of causation. The other way, which we say is quite similar, is relying on the notion of the scope of the risk, and it is something that we say some of the other Judges in Chappel v Hart used as a method of analysing causation.

We say that if a person has created a risk because of a breach of duty of care, and injury occurs within the area of that risk, the loss should be born by him unless he shows it had some other cause. Your Honour Justice Kirby, in Chappel v Hart at page 1367, paragraph 8, under the heading “Shifting the evidentiary onus”, accepted or expressed the view that you found that form of analysis to be compelling, and in doing so your Honour looked at the line of cases commencing with McGhee and going on to Wilsher for a proposition that in some cases the onus, in a sense, shifts.

KIRBY J: Not the onus, not the legal onus.

MR MOSHINSKY: Not the legal onus, the evidentiary onus. McGheev National Coal Board (1973) 1 WLR 1 was a case which was important in this area. That was a case where a man was injured, having worked in a brick kiln. He was working in conditions which were very hot and he developed dermatitis. The element of negligence against his employer, which was alleged was that there was inadequate washing facilities at the brick kiln. The medical evidence was unclear as to what the cause was. It could have been the lack of washing facilities or it could have been other causes which were not connected with that. Lord Wilberforce stated at page 6 of the report about a third of the way down:

But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail – a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause.

That is the passage which is sometimes referred to – crucial passage.

McHUGH J: Does that mean that if, say, a driver goes through a red light and the driver of an oncoming vehicle has a heart attack shortly afterwards, that you would attribute the heart attack to the going through the red light unless you can show the contrary?

MR MOSHINSKY: No, there has to be some nexus, a foreseeable injury, a foreseeable risk of some sort. It is not any risk that is created. If I could turn to your Honour’s ‑ ‑ ‑

McHUGH J: Just speaking generally. Obviously if there is a risk of collision and somebody then has a heart attack after that risk has occurred, does it necessarily mean that you attribute the heart attack to the defendant who created the risk?

MR MOSHINSKY: No, I do not. It has to be a material contribution to the plaintiff’s injury and there has to be ‑ ‑ ‑

McHUGH J: But once you accept that, it almost rejects that third proposition, does it not?

MR MOSHINSKY: In the end, we say it is all a matter of common sense anyhow. But may I refer to what your Honour has said in Chappel v Hart in looking at this point, at page 1350, paragraph 27:

Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another –

and in the footnotes:

“increases” in this context includes “creates”.
If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or in tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff’s injury unless the fact of that particular time or place increased the risk of the injury occurring.

So your Honour, if I can understand it correctly, it is not enough in the example you have given me to say that a risk has occurred, coincidently because something has happened. It is not enough that one thing follows another. There must be an increase of the risk or a creation of the risk, in your Honour’s analysis as I understand it. Now, Justice Gummow ‑ ‑ ‑

McHUGH J: That is in the context of an existing risk.

MR MOSHINSKY: “Increase” includes “creates” in the footnote, yes. So there has to be more than just a post hoc propter hoc‑type of analysis. Justice Gummow at page 1358 in Chappel v Hart , paragraph 68,stated:

Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.

And once again, that follows the comments of Justice Gaudron in Bennett v Minister of Community Welfare. And that is a similar analysis to Justice Gaudron, but it is within the phraseology or the rubric of the scope of risk. So if there is a foreseeable area of risk and the injury falls within it, then Justice Gummow considers that there is a causal link. So that we say there is not much difference in principle between these two forms of analysis, the scope of risk analysis and the breach of duty type of analysis. Due to the constraints of time, I just want to refer to the other cases in this area which support this type of analysis.

McGhee was the high water mark of the principle that there might be a shift of evidentiary burden in some cases. It has not been universally accepted. In Wilsher, (1988) 2 WLR 557, a decision of the House of Lords, the court sought to interpret McGhee. That was a case again where injuries were caused to the plaintiff through too much oxygen being given whilst in hospital, causing an eye illness. But the cause of the actual illness was unclear. There could have been a number of causes. The McGhee analysis was applied by the House of Lords with a view to determining whether or not causation could be established. Lord Bridge said that McGhee should be looked at as an example of pragmatic robust common sense and that really it was not a case where just the creation of material risk would have been sufficient to shift an evidentiary burden. He strongly disapproved of the idea of a shift of evidentiary burden.

However, in Australia there have been some cases that have adopted the McGhee sort of analysis. One of the them is the decision of the South Australian Supreme Court in Birkholz v Gilbertson (1985) 38 SASR 121. That was a case where a worker at an abattoirs came into contact with meat which was infected with brucellosis and contracted the disease.

The disease could be contracted in a variety of ways, and it was not possible to establish precisely how the worker had become infected. The employer had not given warning to its employees of the danger or infection or provided them with gloves or protective clothing.

The McGhee analysis was applied in that case at page 129.

KIRBY J: In a sense, we should not be worrying too much about this English debate of McGhee. I think Justice Gaudron said something very similar in Bennets and that has been picked up by Justice Gummow in Chappel and, instead of tarrying too long over pursuers in Scotland, I think we have our home‑grown authority.

MR MOSHINSKY: Yes. May I then just wrap up this part of the submissions to say that there is sufficient authority in Australia to support this form of analysis. We have in our list of authorities, as a matter of comparison, two American cases which I will not read to the Court, but they are referred to in our argument. They are the cases of Herskovits and Abille in the United States. They will also give good illustration of how the same principles applied in America where the concept of materially increasing a risk has been accepted as sufficient to establish a causal link.

In one Canadian case which we referred to, this whole problem has been analysed by Lord Justice Sopinka when he examines what the Canadian courts did with McGhee. He forms the view that in the end it is all just a matter of common sense anyhow but he accepts the Wilsher analysis as being really the correct one, but in the end it is a matter of common sense to apply robust and pragmatic considerations in these sorts of cases. That is the case of Farrell v Snell 72 DLR (4th) 289.

KIRBY J: I think one does not venture upon the complex issues of causation unless one absolutely has to.

MR MOSHINSKY: Yes.

KIRBY J: I have just lost, really, the point of all this relevant to whether this matter ought to have gone to the jury. How do you bring all of these elaborations back to this particular case?

MR MOSHINSKY: If it be the case that the Court forms the view that the evidence does not make it clear that an angiogram should have been given in this case but it is clear that there should have been serious consideration of an aneurismal cause, I am making submissions about the causal link between the failure to consider and the damage which did, in fact, occur - that is the second bleed and its consequences. We say that is why the scope of risk analysis or the breach of duty of care analysis provides the answer. There is no problem here.

GAUDRON J: You say there is some evidence on which the jury could make the inference?

MR MOSHINSKY: Yes, and the Court can make the inference.

GAUDRON J: Yes. Whether or not it does is a matter for ‑ ‑ ‑

MR MOSHINSKY: It is a matter for the jury.

GAUDRON J: Yes.

MR MOSHINSKY: May I then turn to the question of loss of chance. We say that this issue comes up on the basis if the Court forms the view that serious consideration should have been given to an aneurismal haemorrhage but it is not clear whether an angiogram should have been given, we say that the appellant lost the chance of proper treatment and there was a realistic possibility that an angiogram would have been given in this case. We say that the loss of chance analysis which has not been applied by this Court previously in medical negligence has been previously considered and applied in other areas.

GAUDRON J: To some extent it was rejected in Chappel v Hart, was it not?

MR MOSHINSKY: We say there was tacit approval of it. That, your Honour, for example, just referred to the issue of loss of chance and referred to Sellars as authority without commenting one way or the other about it ‑ ‑ ‑

KIRBY J: I think the point is Chappell v Hart was not presented at trial as a loss of chance case.

MR MOSHINSKY: Yes, the issue did not arise in Chappel v Hart, but we say, certainly if there is nothing there to suggest that the matter cannot be argued in an appropriate case. What we say is that, in contract, loss of chance is well established, and Chaplin v Hicks is a famous case. It has also been established in claims for negligence against a solicitor for losing the benefit of an action in Kitchen v Royal Air Force Association, such a case, and in the High Court, Johnson v Perez established it, and in the Supreme Court of Victoria, the Court of Appeal, the Full Court then, Warriby Pty Ltd ‑ ‑ ‑

GAUDRON J: I really wonder whether this is the right analysis. If you come to the view that, on the balance of probabilities, there would have been – well, do you not have to look at that? Do you not have to approach it on the balance of probabilities what would have happened in this case?

MR MOSHINSKY: Yes.

GAUDRON J: And what do you say would have happened? Because, on any view, there would have to be a fairly substantial discount, would there not, for the possibility that the clipping would not have been successful, do you not think?

MR MOSHINSKY: Well, we do not say that. No, we say that the clipping would have been successful because had he thought of the alternative diagnosis ‑ ‑ ‑

GAUDRON J: That may be a matter of evidence, anyway.

MR MOSHINSKY: There was time for a clipping and had the angiogram been done, it could have been performed so that the clipping could have been successful.

GAUDRON J: But might not have been.

MR MOSHINSKY: But it might not have been but there is no evidence about it.

GLEESON CJ: But you have to introduce or allow for the element of timing, do you not?

MR MOSHINSKY: Yes.The way we put the loss of chance point, it is simply put as this: that more probably than not, having considered an alternative diagnosis of an aneurismal bleed, an angiogram would have been undertaken.

GLEESON CJ: Before 25 July?

MR MOSHINSKY: Before 25 July, more probably not. If the breach had not occurred and the duty was performed correctly, there had been consideration given at the time of the CAT scan on 14 July, “Something is wrong, we must have an angiogram”. If that had taken place, whether or not there was an angiogram, there is some dispute but there was a good chance that there would have been an angiogram. There was probably a good chance that there would have been an angiogram.

The jury would then have to value that chance, just like the court had to do it in Sellars or in Chaplin v Hicks or in the contract cases and the trade practices cases. What was lost was either, more probably than not, the angiogram and all the benefits or ‑ ‑ ‑

GAUDRON J: I wonder why you keep saying that, because if you are looking at it in terms of a chance, it really is not a question whether, I should not have thought, it was done before 25 July. It really is whether the patient’s condition may have been stabilised to a point where an angiogram and clipping could have been done before a bleed. I mean, there is no reason why you have to assume that there would have been a bleed on 25 July if the patient’s condition had been stabilised with the drugs and kept quiet.

MR MOSHINSKY: Yes, we accept that, your Honour, because the evidence is that he could have been kept quiet and that would have reduced the risks of a bleed.

CALLINAN J: Can you tell me whether the evidence goes any further than Mr Cummins’ evidence on page 355, that there was a tendency only to delay for 7 to 10 days.

MR MOSHINSKY: Yes.

CALLINAN J: He says there was a tendency and then he said:

My tendency was 7 to 10 days.

And I notice – I think I am right about this - and Mr Bongiorno is very careful to keep away from the temporal aspect in his very careful cross‑examination, I thought, of Mr Cummins.

MR MOSHINSKY: Yes.

CALLINAN J: Did any other doctor give any evidence with respect to the delay? You may not be able to answer it now, you may want to talk about it later.

MR MOSHINSKY: I will seek further instructions about it, but I believe not.

CALLINAN J: And Mr Bongiorno will no doubt have a response to that.

MR MOSHINSKY: May I come back to “loss of a chance”. How you describe it may be a matter of a debate, but we say that the issue of “loss of a chance” comes up in this case if the jury forms the view that it is not probable that an angiogram would have come about. It is wrong to have not considered, but it is not probable that an angiogram would have come about because doctors were divided in their views about it. What we say is that there was a good chance that an angiogram would have been undertaken, given the fact that that was the only realistic way of verifying the diagnosis. The plaintiff is entitled to the benefit of that chance which may be valued in terms of the avoidance of a second bleed by whatever appropriate methods were available; whether it be by keeping the plaintiff in a rest, proper rest and giving Amicar, or whether a clipping was necessary. But, certainly, the plaintiff, by reason of the failure to consider the alternative diagnosis we say lost the benefit of correct and timely treatment, and that he either lost it, or lost the chance of obtaining that treatment. We say that type of loss is compensible in law; that it is similar in principle to the loss which has been recognised by this Court in contract and trade practices.

As Sir John Donaldson said in Hotson in the Court of Appeal before the case went to the House of Lords, he said, Dr A who treats a patient as part of his duties in fulfilling his employment for a government department or statutory authority should not be treated differently from the position of Dr B who treats his patient on a private basis and whose liability falls for determination in accordance with the law of contract.
So that, for example, in this case, if the claim had been formulated in contract there would be no doubt in law that chance loss would have been recoverable, and there ought to be no difference, we say, as a matter of principle between contract and tort.

What we say is that the case really falls for determination in accordance with the principles of this Court in Malec v Hutton. In essence, if the plaintiff can prove, on the balance of probabilities, that he sustained the loss of a chance which has some value, then the valuation of that chance can be made in accordance with the principles in that case. The evaluation of that chance can be viewed as an event that would, or might have occurred, and the award of damages can be assessed to reflect the degree of probability of an event.

GAUDRON J: I must say I do have a lot of trouble with this.

MR MOSHINSKY: Yes.

GAUDRON J: If there was a chance in excess of 51 per cent ‑ ‑ ‑

MR MOSHINSKY: It would not be a chance, your Honour.

GAUDRON J: No, it would be more probable than not.

MR MOSHINSKY: Yes.

GAUDRON J: But if it is less than 51 per cent, leave aside 50 per cent, then it is more probable than not that it would not have happened.

MR MOSHINSKY: Yes.

GAUDRON J: I have some difficulties about relating, in physical injury cases, the notion of what you are talking about as the loss of a chance.

MR MOSHINSKY: Your Honour, I accept your Honour’s comments and I have a number of submissions to make on that very issue based on an analysis in some of the learned articles in the field, but I am just wondering in terms of time.

GAUDRON J: Perhaps if you refer me to them.

MR MOSHINSKY: They are in our written submissions and they are in pages 17 to 20 of our written submissions. In essence, what we say is that loss of a chance in medical negligence refers to a species of loss, a type of loss which is very real and Professor King from Yale Law School wrote an article which we ‑ ‑ ‑

GAUDRON J: Well, but you see the other reason why I think it is difficult is you have also got to establish that you would have taken the chance. I mean, even if you do get to that point, when you are talking about chances rather than direct physical injury, there has got to be the question whether, had the angiogram been offered, the decision would have been taken by the parents to accept that chance.

MR MOSHINSKY: Your Honour, that is a matter of evidence, but not a matter of conceptual correctness of the analysis.

GAUDRON J: I do not know. I do not know.

MR MOSHINSKY: We say that there is evidence here which would justify a court ‑ ‑ ‑

GAUDRON J: Well, you see, my difficulty comes back to what I said in Chappel v Hart. If you were protecting against the loss of a chance, really your duty would have been to say there is a chance that this is not caused by such‑and‑such. I do not think it is a realistic chance but there is a chance. Are you going to take it? Do you want the treatment? I do not think you are talking about the same duty of care at all, if you are talking about chance of - or the opportunity to pursue different treatment from the physical injury.

MR MOSHINSKY: No, your Honour, we do not say the chance is of that kind. It is not the chance of different diagnoses. The chance is that an angiogram would have been performed. The breach is ‑ ‑ ‑

GAUDRON J: Then I do not know why you put so much weight on it.

MR MOSHINSKY: No, we say that there is no doubt that failure to consider is the breach, and also we say that failure to consider and failure to give an angiogram is the breach. But if is found against us that failure to consider is the breach, but not the failure to give an angiogram, there is a chance that an angiogram would have been given. It is in that sense the chance comes to fruition. It is a Malec v Hutton chance, because it has happened in the past and, more probably than not, we say an angiogram would have been taken and there was, therefore, a loss which could be evalued.

GLEESON CJ: Perhaps we could come back to this at 2.15, Mr Moshinsky. We will adjourn till 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Moshinsky.

MR MOSHINSKY: Your Honours, may I briefly address the Court on the loss of chance doctrine and there are submission which are already contained in writing on this issue. By using the term “loss of chance” in medical negligence I take as a definition that loss of chance is a type of damage. It is the damage which results from the loss of an opportunity either to realise a benefit or to avoid an injury. That is the definition that I gleaned from the reasons of Justice Gonthier in the Canadian case referred to in our authority, Lawson v Laferriere (1991) 1 RCS 541, that passage being taken from 559. That was a case which examined in very great detail and exhaustively, the theories for and against the recognition of loss of chance as a species of injury in the law of Quebec. There seems to be wide divergence in western jurisprudence about the recognition of loss of chance in medical negligence cases.

The case that is before you, your Honours, does not deal with the very difficult issues that sometimes come up in this area. The type of case where the problems may arise is where, for example, someone goes to see a specialist and shows symptoms and the specialist misdiagnoses them and then later on the correct diagnosis comes up and the diagnosis of cancer, for example, should have been made at the early stage but it is made three or six months later and the person then dies but the diagnosis – the early diagnosis does not actually cause the death, because of the nature of the illness death would have resulted in any event.

There is a lot of jurisprudence about whether or not the loss of the chance of early diagnosis, which might represent only a 20 or 30 per cent loss, is compensable. In the United Kingdom the leading case was that of Hotson. Hotson was a case where a boy fell off a tree and he developed an injury to his hip but it was not correctly diagnosed. Had he had early enough treatment, the evidence was that there would be a 25 per cent chance of improving the situation so the injury to the hip would not become permanent but there was, overall, a 75 per cent chance that even with the correct treatment and early diagnosis, the injury would still have occurred.

In the Court of Appeal, Sir John Donaldson said that that 25 per cent was a type of injury which was compensable. It was the benefit of timely treatment that was lost. The House of Lords rejected that view and said that since on a balance of probability what was lost was less than 50 per cent, it was not compensable or, in other words, if it was more probable than not that he would have developed this injury to his hip whether or not he had been diagnosed early or not, then all that you could look at is the injuries that were caused more probably than not.

In this case, we do not have this problem. We do not have the problem of someone claiming a loss of a chance which is less than 50 per cent of what would happen. What we have here is, we contend, a case where the plaintiff says, “I either suffered the damage more probably than not or, alternatively, if I did not suffer it more probably than not, I lost a realistic or substantial chance that an angiogram would have been taken and from there it follows I lost a valuable opportunity”.

KIRBY J: But it is only valuable in so far as it, if exercised, would have demonstrated the existence of the underlying pathology.

MR MOSHINSKY: Yes. We say that the evidence is, and I accept that, it would have to be proven that it was an opportunity that would have been exercised, but given that the evidence was that if you would have seriously considered the alternative diagnosis, you either most certainly would have given an angiogram, or that was the only real way of verifying the situation, we can say that it most probably would have been exercised – that opportunity.

I mean, the question of consent of parents and the like, you see it is not a real issue in this case because the child was in hospital. The mother wanted the child to have the best treatment available. If the doctors had said, “We are probably going to give you an angiogram.”, I do not believe there is anything to suggest that it would not have been undertaken. A jury could have easily come to the view it is the kind of opportunity that would have easily come to fruition.

So what we say is that there is nothing mystical about loss of a chance in medical negligence. It is really just another example of the development of the doctrine of loss of a chance in so many other areas.

GLEESON CJ: Am I right in thinking that the plaintiff’s present disabilities result from the episode that occurred on 25 July?

MR MOSHINSKY: Yes, the second bleed.

GLEESON CJ: Yes. So what we are looking for is a causal relationship between the defendant’s negligence and the disabilities resulting from the incident of 25 July.

MR MOSHINSKY: Yes.

GLEESON CJ: One way you put your case, not involving loss of a chance, is to say if the plaintiff had not been negligent, there would have been treatment that would have averted the bleed of 25 July.

MR MOSHINSKY: Yes, we do that.

GLEESON CJ: That involves the proposition that there would have been an angiogram, probably.

MR MOSHINSKY: Two ways we put it: either there would have been an angiogram, or if there was not an angiogram, there would have been a -keeping the patient calm and treating with Amicar.

GLEESON CJ: Yes, what I have put to you is over-simplified. I ignored that aspect of it.

KIRBY J: But it is not only keeping calm, it is also keeping under observation and doing all the other things and/or having an angiogram which was performed in time before the dramatic incident, and was performed competently and would have revealed a condition which, again, in time, could have been treated and clipped. Now all of that involves a number of hypotheses.

MR MOSHINSKY: It does, your Honour, and we would ‑ ‑ ‑

KIRBY J: Do you say that there was evidence in this case? We really have to be careful not to be trying a negligence case. We are dealing with a “no evidence” point, that there was enough evidence from which the jury could draw an inference, because that is all it can be, that if only they had postulated the possibility and then proceeded to treat against that possibility, then the crisis would not have occurred and your client would not have been profoundly injured.

MR MOSHINSKY: Yes, that is what our case is, your Honour. We say that it is ‑ ‑ ‑

KIRBY J: You never got a doctor to come up to that point, did you? You did not get a doctor to come along and say, “Well, I’m from Queensland and in Queensland we do this”, because that is often how medical negligence – the local people will not talk about each other and they have to get somebody from overseas or interstate. I gather from the evidence that there were only 20 neurosurgeons in Victoria at this time, so it is a very small community. But there was a witness from Queensland, was there not? Was that a doctor?

MR MOSHINSKY: There was a defence doctor, I believe.

KIRBY J: Was Mr Klug from Victoria?

MR MOSHINSKY: Yes, and Mr Cummins was from Victoria. Your Honour alludes to the passage in Chappel v Hart where you refer to the Herculean task of the plaintiff in medical negligence.

KIRBY J: Well, the medical profession – the Hercules is on the other side.

MR MOSHINSKY: Yes. As your Honour points out, the difficulties of plaintiffs in medical negligence cases is well known to the law. The Pearson Report, for example, 1978 in the United Kingdom made a point of saying that it is very difficult for plaintiffs to prove.

McHUGH J: But that was because of the Bolam test.

MR MOSHINSKY: Yes.

McHUGH J: It may have been true 25 to 30 years ago to say that the plaintiffs in medical negligence cases face a difficulty but I do not think it is true today. I mean, there was a period of time when you might have to get a struck‑off doctor’s evidence to get you to the jury, but those days have gone. There always seem to be plenty of experts willing to give evidence on behalf of plaintiffs. I do not see why we should adopt any special approach to these cases.

MR MOSHINSKY: Your Honour, it is a matter for the Court, a matter of policy.

McHUGH J: It is a matter of principle, I would have thought, not policy so much.

MR MOSHINSKY: A matter of principle, your Honour.

CALLINAN J: I thought there was – I will not say evasiveness - but there did not seem to be any clear inclination to answer some of the direct questions, I thought, by the experts called in this case.

MR MOSHINSKY: There was no clear indication.

CALLINAN J: Yes; I thought that there was – I will not say evasiveness, but certainly a resistance, I thought. I do not know whether it is a great deal easier to find experts in medical negligence cases for myself.

MR MOSHINSKY: Our contention, of course, if that it is very difficult for a plaintiff to succeed in medical negligence cases. We say it is a matter, of course, everyone would have a different view, but we would, with respect, disagree with what your Honour Justice McHugh has said. But, that is a question; of course, everyone would have a different view.

CALLINAN J: The difference is with the Rogers v Whitaker Case that if the jury believes the plaintiff, and the plaintiff says he or she would not have had the operation or the procedure, that could be the end of the case. In fact, the case holds that what you tell or do not tell the plaintiffs is not a matter of medical practice. So, medical opinion on it is irrelevant. But, that is not like this case.

MR MOSHINSKY: I apprehend, correctly, Justice Kirby in Chappel v Hart was adverting to those problems when he talked about the attractiveness of the McGhee analysis as one which would be useful in medical negligence cases generally, because of the difficulty of proof and how that seemed to go towards identifying the risk that is created rather than proving exactly every chain in the causation.

KIRBY J: Well, I merely said that I found Lord Wilberforce’s exposition compelling and I usually do find Lord Wilberforce compelling, however.

MR MOSHINSKY: Yes. and, your Honour also said, if I might…..saying, that when it comes it comes to applying the concept of common sense, that it is a flexible concept which involves intuitive considerations. It is not pure logic, it is a matter of value judgments as well, and for that reason, Lord Wilberforce’s views can be looked at as part of a development of that pragmatic approach. So that what we say is that medical negligence cases have to be viewed when it comes to these sorts of issues with that flexible framework of mind, that is difficult to prove and it cannot be proven in a very exact way so that an overall view has to be taken of the evidence, and here where you have got a place where the plaintiff has shown that there has been a high level of risk created because of a lack of serious consideration, one can infer from that that damage will flow, the least of which would be, of course, failure to keep the plaintiff under calm conditions in hospital and the like and reduce the level of risk, but also, of course, the problem of the angiogram.

But, if I could go back to the loss of chance point, if the Court says all that you have really lost is the chance of being kept in hospital quiet and taken Amicar and observed, we say that does not go far enough. We say we have really lost the chance of an angiogram which would have verified the existence of the aneurism.

GLEESON CJ: Well, I think we have understood that.

MR MOSHINSKY: Yes, and to come back to the arguments for and against the loss of chance theory, I do not wish to say much more than to point to the articles we have in our submissions. Perhaps the leading one was the one which was accepted by the United States courts was written by Professor King in The Yale Law Journal. And there seem to be a number of basic points which support the view that this type of injury should be compensable. First of all Professor King emphasises that the all or nothing approach is very difficult to substantiate logically.

KIRBY J: It may be that the argument on the other side is that there will always be a chance, let it be 1 per cent, 4 per cent, 7 per cent and that then you are really compensating for very low possibilities as distinct from probabilities.

MR MOSHINSKY: The argument against that, your Honour, is that it is unlikely a plaintiff would come to court for compensation which is very small and valued in a very small way.

KIRBY J: But the claim may be very large but the chance may be very small.

MR MOSHINSKY: Yes.

GLEESON CJ: One per cent chance of getting lung cancer or avoiding lung cancer might be valuable.

MR MOSHINSKY: Yes, but ‑ ‑ ‑

KIRBY J: I think the court has said you can disregard 1 per cent.

MR MOSHINSKY: They can disregard 1 per cent and one of the articles ‑ ‑ ‑

KIRBY J: Let it be 3 per cent.

MR MOSHINSKY: But there ought to be bans or certain levels where chance is not compensable because it is too low, and it is only compensable within sort of categories of loss.

Professor King’s article - the relevant passages are at pages 1376 to 1363. In essence, what he says is that if you do not compensate for loss of a chance you subvert the deterrent subjectives of tort law. He says that once the universe of cases is examined, losses of chance of avoiding both the adverse effects of pre‑existing conditions and the occurrence of future consequences of an injury represent actual losses and if you do not compensate for that type of loss you will probably get a case where someone has incurred, say, can prove a 49 per cent degree of negligence but cannot get over to the 51 per cent and, in such a case, it is very unfair that a plaintiff should not be compensated whereas the medical practitioner who has committed that kind of loss should not have an award of damages against him.

GLEESON CJ: This is a long way removed from the basis on which the Court of Appeal decided this case.

MR MOSHINSKY: Yes.

GLEESON CJ: There was a passing reference of about one and a half lines to the subject of loss of a chance.

MR MOSHINSKY: Yes. The court did not go on to consider this matter and I do not wish to elaborate on the matter more fully than to say that if the Court does come to the view that it is not probable on the evidence or not available for the jury to say it is probable that an angiogram would have been performed, in this case there was a chance, a realistic chance that it would have been performed and if one applies the existing conceptual framework of this Court in Sellars and in other cases, all that is necessary is to prove that there is more probably than not, a realistic chance was lost and that would then have to be valued.

Beyond that, I refer to all our authorities and to the American cases which we have referred to which explain and give good examples of how that theory of lost chance is applied in the United States. Unless there is anything the Court wishes me to add, I do not wish to proceed.

GLEESON CJ: Thank you, Mr Moshinsky. Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MR MOSHINSKY: Your Honours, before my friend starts may I just add one thing my junior has reminded me about. At page 770 of the appeal book, the appellant has signed a consent authority to consent to all necessary treatment so that, should that become relevant on the question of consent to an angiogram, there is that document to look at.

GLEESON CJ: Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases. Central and, indeed, we would say the only issue in this case is whether there was any evidence fit to be left to a jury which would have entitled it to have reached a reasonable verdict in favour of the plaintiff. As we point out at the beginning of our submissions, that applies to both respondents to the appeal because there is nothing other than vicarious liability between them.

The test which has been argued by our learned friends, we do not quarrel with. However, we say that the emphasis which ought to be put on the word “reasonable” so far as the verdict is concerned is one that must not be lost sight of. In Bressington in this Court a long time ago in 1947, the words used were “where there is evidence upon which a jury might reasonably find”. In Protean, which is normally the case referred to in Victoria and which was referred to by Justice Hayne in the Court of Appeal, the words again are similar:

the question of the sufficiency of evidence upon a no case submission is whether there is any evidence that ought reasonably to satisfy the tribunal of fact - - -

KIRBY J: Now, is there not a nuance “ought reasonably” as distinct from “might”? In other words, it is getting into the evaluation as distinct from the Court withdrawing from the evaluation and acknowledging that that is the role of the jury. Why do you Victorians prefer your own authority rather than the High Court’s authority? Is there some sort of local fetish down there that you like your own judges and you do not want too much interference from outside?

MR BONGIORNO: Your Honour may not have noticed that at the beginning of our submissions I said that all parties accept the relevant legal principle as that expressed by this Court in Bressington.

KIRBY J: You also said that normally in Victoria Bressington is not applied. Protean is the ‑ ‑ ‑

MR BONGIORNO: Protean is the usual formulation of it. I think that it is probably because we have not appreciated the nuance that your Honour has just referred to.

KIRBY J: But it is quite an important one, it seems to me; and it seems to run through the Court of Appeal’s analysis.

MR BONGIORNO: Yes. Your Honour, the cases referred to in Protean which, I think, in fact, are referred to in Bressington as well - at least some of them are – uses the “ought reasonably to satisfy”. It may well be that the use of the word “ought” in that circumstance is not using it in its – I hesitate to start using grammatical terms, but using it in the sense that there is some compulsion or that there is some requirement, but is simply using it in the sense that there is enough there, so that the difference between Bressington and what is said by the Court in Protean, particularly Justice Tadgell, as he was then, is a matter of perception than reality.

The way in which the words are used in the old cases that lead up to this situation – I could perhaps, commence by going to the case that my learned friends referred to, Hocking v Bell, because that is clearly the appropriate authority. In Hocking v Bell ‑ ‑ ‑

KIRBY J: Is this in this Court or in the Privy Council?

MR BONGIORNO: Yes, in this Court, your Honour. It is in (1945) 71 CLR 430, and it is in the judgment of Chief Justice Latham.

GAUDRON J: Pages 442 and 443.

MR BONGIORNO: Yes, I am trying to find the correlative passage to that which I have referred to in Bressington. His Honour quotes from the Dublin, Wicklow and Wexford Railway Co v Slattery:

“When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict –

So, it is using language, I suppose, that might be said to be somewhere between that used in Bressington and that used in Protean, “would justify and sustain a verdict”, but we do not ‑ ‑ ‑

GAUDRON J: Well, is there any difference, in that context between “would” and “could”?

MR BONGIORNO: “Would” used with the word “justify” – “would justify” would simply be ‑ ‑ ‑

GAUDRON J: Or can justify?

MR BONGIORNO: Can justify – would justify ‑ ‑ ‑

KIRBY J: Ie, might, as distinct from should.

MR BONGIORNO: Yes.

KIRBY J: You see, it is the superimposition of the Court’s assessment of where the evidence preponderates that is the point at which I begin to baulk because that is absolutely antithetical to what Chief Justice Latham says at 442.

MR BONGIORNO: Yes, I see the point that your Honour is making but, with respect, I think it would be putting it too high to say that what Protean is saying is that there is a question of preponderance of evidence. As I submitted earlier, it may well be that it is simply a way of saying essentially the same thing and, indeed, of course, in any event, if it does not mean the same thing it is wrong. I suppose that is the end point of it. If it does not mean the same thing the court is bound by this Court and that is ‑ ‑ ‑

McHUGH J: Is there a problem about these testS in terms of their generality - and they reflect the thinking of a much earlier period. Is not the more modern approach to ask a more analytical question that in the context of this case would go like this, “Was there a reasonably foreseeable risk of harm to this plaintiff from an aneurism which could have been avoided by the exercise of reasonable skill on the part of the doctor?” Now, once you stack the question in that way it seems to me you are in very considerable difficulty.

MR BONGIORNO: Is there a reasonably foreseeable risk of the problem he was suffering ‑ ‑ ‑

McHUGH J: Of harm to the plaintiff from the existence of an aneurism which could have been avoided by the exercise of reasonable care?

MR BONGIORNO: Putting the question in that way, your Honour, is – I think we would say is missing the application of the appropriate duty of care because the duty of ‑ ‑ ‑

McHUGH J: But could I just interrupt you to say, it then tends to leave all the evaluation to the jury because, in considering reasonableness, there are not only issues such as foreseeability of risk and the availability of precautions or alternatives that could eliminate or reduce those risks, but there are other matters such as expense, convenience or, as in this case, the existence of machines at that particular time, or as the Chief Justice put, you might have been in a country hospital where these machines were not readily available, so – but are they not ultimately jury questions? This question of evaluation is one for the jury but for the judge there is a case to go if there is a reasonably foreseeable risk of injury which, by the exercise of reasonable skill, could have been avoided.

MR BONGIORNO: Your Honour, we would say that that question masks the problem in the case. All that that does is avoid saying, “Was there any evidence that Dr Jensen was in breach of the duty of the care, that the content of the duty of care which was imposed upon him at the time consisted of a number of elements and the plaintiff had an obligation of producing evidence which was capable of convincing a jury that those elements existed”. Now, the ‑ ‑ ‑

McHUGH J: It does at least come down from generalities such as in Bressington, “Was there evidence upon which a jury could reasonably find?” That is a very vague question. And since Wyong Council v Shirt it has been normal to think of these issues in terms of reasonable foreseeability of risk and the availability of precautions to avoid or reduce the risk.

MR BONGIORNO: Yes, but when one is looking at reasonable foreseeability of risk, it has to be related to the specific case that is being discussed. As we say later on in our reasons, if you are talking about a supermarket manager who leaves olive oil on the floor for three hours in circumstances where it is plainly obvious, that is one thing. One of the problems that arises in cases of medical negligence and, in particular, cases of complex medical negligence or allegedly complex medical negligence where the issues are such that they require careful explanation to a tribunal of fact, particularly a jury, is this very thing.

What has happened here is that the plaintiff has said that part of the content of the doctor’s duty of care was an obligation to take reasonable care in diagnosis and, if necessary, reasonable care to change that diagnosis if something indicated that he should, or reasonable care to consider the changing of that diagnosis. We do not quarrel with whatever way the duty of care is formulated, it matters not, but when one starts looking at the facts, to simply say “Was it reasonably foreseeable that the aneurism from which he was suffering would cause him injury absent the exercise of reasonable care ‑ ‑ ‑”

McHUGH J: No, I was not putting it in that way. What I was putting to you was in this way. Just as the school authority’s liability is to be analysed in terms whether they should reasonably foresee that there was a risk of harm to the plaintiff from what the other boys might do and whether there were available means of avoiding or reducing that risk, why does not one also say that this plaintiff is under the care of this doctor, therefore it is this doctor’s duty to determine whether or not, having regard to what we know, that there may be a – is there a reasonably foreseeable risk that there is some problem here from an aneurism or something else and whether there were reasonable means to avoid or reduce that risk? It has seemed to me for a long time now that defendants’ counsel in professional negligence cases, particularly medical negligence cases, have very skilfully kept this area out of the mainstream of negligence doctrine and that the ghost of Bolam still haunts this area. One still looks at it in terms of what a reasonable doctor would do. That is the conceptual framework that people approach these things on.

MR BONGIORNO: We quite unashamedly say to this Court that Bolam is certainly not dead and ought not to be dead in this area. We say that because of the fact that you have complex issues. We are not talking about, as I say, the olive oil on the supermarket floor that is there for everyone to see. We are talking about issues – we are inviting the jury to the side of the cot in the casualty ward and getting them to look over the doctor’s shoulder whilst he goes about a complex thinking process to lead him to a particular area.

GLEESON CJ: I suppose the practical problem is nobody doubted that the doctor owed a duty of care. The practical problem which has to be addressed in some way is that, other than through the guidance of medical experts, the jury has no way of evaluating whether the doctor’s conduct involved a breach of the admitted duty of care.

MR BONGIORNO: That is why we say that Bolam is alive and well and ought not to be killed off. We are obviously bound by Rogers v Whitaker so far as advice is concerned, but absent that outside the area of advice and particularly when you get – one could imagine, as we have said in our written submissions, if you had a case of a doctor performing an inoculation with an unsterile needle and it was unsterile because he dropped it on the floor before he used it, you would hardly need to call anyone to say a doctor who drops a needle on the floor and walks on it and then uses it to stick in someone’s arm is negligent, or has failed to reach the appropriate standard of care. That is not on.

The other absurd example we give is of the doctor performing elective surgery on his dining room table or you can go a bit further and say, well a doctor performing surgery without an anaesthetic, just not giving an anaesthetic before taking out an appendix or something. You hardly need to go into the sort of area that your Honour the Chief Justice has mentioned. But once you get into this sort of area, we are talking about posterior fossas and intraventricular bleeds and descriptions of ‑ ‑ ‑

GAUDRON J: But you can make it as complex or as simple as you like. I do not think it helps your argument to say it is complex because you are talking about intraventricular bleeds and so forth, that could all be explained in ordinary language that people understand. And really the question is, is it not, in a case such as this, what, at best, would a reasonably competent neurosurgeon have reached that as a final diagnosis without taking any further steps. But that is a question that can be answered surely by a layman, or a laywoman, or a lawyer, or a judge simply by asking, “Well, what knowledge would the reasonably skilled neurosurgeon have about the possibilities?”

MR BONGIORNO: But that question, your Honour, must be addressed by expert evidence.

GAUDRON J: Of course, but that is very different from saying what would the neurosurgeon have done? You see, it is what the neurosurgeon should have done given the state of knowledge and expertise at the time.

MR BONGIORNO: But, again, if we are talking about this sort of thing and the only evidence - and, again, I am getting away from where I started but just to answer your Honour Justice Gaudron’s question ‑ if we are getting to a situation where it is a question of what a reasonable neurosurgeon ought to have done, to have in a case the unusual situation of every neurosurgeon saying, “Well, he would not have done that and, at best, he would have considered doing that”, is quite different to saying, to looking at the situation where the onus of proof was, and saying, “Well, there is evidence that he would have taken an angiogram”. That is really what this is about.

And no matter how one takes Justice McHugh’s analysis of it and broadens the question into a much broader one so as to catch perhaps a lot more things in the case, in the end it still gets down to a question of whether there was evidence that the jury could reasonably have used to conclude that here was a breach of duty. And that is the issue that, we say, the Court must focus on when it is determining whether there is any evidence to go to the jury, and we say that here there was not.

McHUGH J: Well, why cannot you ask in this case, would a reasonably competent neurosurgeon have foreseen that a real possibility of this plaintiff’s symptoms was an aneurism and, if so, would a reasonably competent neurosurgeon have taken steps to deal with it, and that is standard negligence doctrine.

MR BONGIORNO: To the first question, we say there is no evidence in this case to go to the jury on that issue, if you put it in those terms, that there is no evidence that a reasonably competent neurosurgeon would have found, would have ‑ ‑ ‑

McHUGH J: I thought both Mr Klug and Mr Cummins themselves were saying that you – they did not say it in terms, but the effect of their evidence was that it was certainly reasonably foreseeable that an aneurism was part of the problem. The very fact that they said “should be considered” by itself would seem to indicate that.

MR BONGIORNO: But if the only evidence that follows from that is that it ought to have been considered. In this instance we say there is no evidence that it was not.

GAUDRON J: But there is evidence from which an inference could be drawn that it was not, is there not?

MR BONGIORNO: I heard your Honour say that to my learned friend, and I ‑ ‑ ‑

GAUDRON J: The fact that the child was discharged without it being raised with his parents would give you ‑ ‑ ‑

MR BONGIORNO: It was never ‑ ‑ ‑

GAUDRON J: It is not on the notes, not on the clinical notes.

MR BONGIORNO: It is not on the notes.

GAUDRON J: And the doctor does not in his evidence say he considered it and rejected it?

MR BONGIORNO: The doctor says he has no recollection of it. He is talking 16 years after the event. There is hardly any inference to be drawn from his – and if the jury reject his explanation that he has no recollection, they cannot substitute “Well, he didn’t consider it”. He says, “I have no recollection. It is 16 years ago. I’ve got the notes”. There is ample evidence about notes in this case that was uncontradicted to the effect that notes never record everything and in particular do not record negatives.

GAUDRON J: No, but they very frequently say “query”.

MR BONGIORNO: If there has been a ‑ ‑ ‑

GAUDRON J: Query.

MR BONGIORNO: Yes, that is so, but ‑ ‑ ‑

GAUDRON J: It is well within the experience of all of us here that notes frequently say that.

MR BONGIORNO: And I would not put an argument to the contrary, your Honour, but for a jury to draw an inference from the lack of something in a medical history in a bundle of hospital notes that something was not considered ‑ ‑ ‑

GAUDRON J: It is not just that. It is not discussed; it is not in the notes; other tests were not given. All that was given was a non‑diagnostic test related to some other possible condition that might accompany it.

MR BONGIORNO: The other diagnostic test, of course, your Honour, was the necessary precondition to the diagnosis that was in fact made; that is the subarachnoid haemorrhage that was traumatic.

GAUDRON J: Yes, but diagnosis of subarachnoid haemorrhage is not really a diagnosis in a sense. It is a condition. You have to find out what caused it on any view. Now, certainly you needed the CAT scan to find out that there was a subarachnoid haemorrhage.

MR BONGIORNO: But we say that there is no evidence to displace the diagnosis of Mr Jensen that it was a traumatic subarachnoid haemorrhage. In this respect, the first thing I intended to say to the Court when I stood up and then forgot was that the evidence of Griekspoor that my learned friend read at the beginning would not even be admissible; would not have been admissible in that trial if it had not been for the action against the State of Victoria. It would not have been admissible against Jensen because he had never seen Griekspoor and he knew nothing of the circumstances in which the injury was caused, except the letter from Dr Brophy which gave him a history of a whack on the head resulting in loss of consciousness.

GLEESON CJ: I wanted to ask you about the evidence about that. As the situation presented itself to Mr Jensen, presumably he was told that the boy was there because he had been whacked over the head and presumably the extent of the whack over the head was not being minimised at that stage?

MR BONGIORNO: Your Honour, it is even better than that. There was a GP either on the scene or very close by and his note is in the appeal book in the third volume. His note is the first document in the hospital record, most of which I think is in the appeal book. It is at page 768, your Honour. This is the presenting situation to the hospital:

herewith Paris Naxakis, aged 13, who was apparently knocked unconscious in a fight this pm.
O/E – No apparent #’s. Pupils E & slowly reactive. Responds to painful stimuli – verbal response. Mouth contains vomitus, (brown). Abdo lax.
He needs observation for several hours and 2 skull films.

I think there was some argument in ‑ ‑ ‑

GAUDRON J: “And ?”.

MR BONGIORNO: “? skull films”, yes, probably “?”. There was some argument about what that meant, but it may well emphasise ‑ ‑ ‑

GAUDRON J: His condition then deteriorated somewhat?

MR BONGIORNO: It deteriorated during the time he was in casualty which was later noted in the notes to have been at least query epilepsy, an epileptic fit. There was never any further examination of that. The other material that Mr Jensen had was of course at his own examination at page 772. Actually, I will hesitate about that. I am not sure it is Jensen’s examination. It is a doctor’s examination at page 772. I think it was the registrar. Yes, it was. But the only point I was making was that the evidence of Griekspoor about how the blow came to be delivered to the head would not be admissible on any trial in which Jensen was the sole defendant. It was admissible only because the plaintiff was trying to make a case against the State of Victoria. There was quite an argument between counsel.

GAUDRON J: There is no reason though for any doctor to assume it was a serious blow. Apart from the graze behind the left ear, there was nothing to indicate that that was so, was there? There was no bruising, there was no wounding.

MR BONGIORNO: Knocked unconscious in a fight, loss of consciousness.

GAUDRON J: By another boy.

MR BONGIORNO: Yes.

GAUDRON J: Well, they do not usually whack a big punch, do they?

MR BONGIORNO: Knocked unconscious. “Responds to painful stimuli, vomitus”. I think there was a lot of cross‑examination about all this, that this was an indication of concussion and there was also evidence of a parietal suture opening which was uncontestedly said in a pubescent adolescent to be equivalent to a fracture of the skull.

GAUDRON J: Yes.

MR BONGIORNO: So there was considerably more than ‑ ‑ ‑

GAUDRON J: Where is that?

MR BONGIORNO: It is in cross‑examination of Mr Klug, certainly, and I think in the hospital record there is an x‑ray, a plain x‑ray of the skull, which was interpreted by Mr Jensen.

GAUDRON J: Now, also at page 776, “Our provisional diagnosis”. That is dated – what date is that? Yes, it seems to be – I do not know the date.

MR BONGIORNO: Yes, that is the referral to the hospital for the CT scan. I might say, your Honours, that the other relevant fact, the background to this case was that there was uncontested evidence. There were only three CT scan machines in Melbourne at the time, they were at St Vincent’s, The Royal Melbourne and Prince Henry’s, I think - certainly Prince Henry’s because that is where this boy went - that an appointment for a CT scan was a major matter. It required a full day transfer by ambulance from Western General which is out on the Ballarat road about 15 k’s or so from the city to Prince Henry’s, which was then in St Kilda Road, so it was a major matter and, indeed, there is evidence that if they had wanted a repeat CT scan it would not have been available because of the improvement of the boy.

It would not have been regarded as appropriate, and that is from Mr Peter Petty and that was not contested either. It was put to him, I think by - at page 741 there is a reference to – no, it was Mr Griffin in examination in‑chief at the bottom of 741. One of the allegations made by the plaintiff was that instead of an angiogram, a CT scan using contrast might have been able to be taken. CT scans in 1980 were relatively new. The use of a CT scan with contrast, which is an invasive procedure where the CT scan without contrast is not, involved a lot longer clinical time and where in a situation there were only three CT scans in the city, a CT scan with contrast was a more difficult procedure. It was in that context that the question was asked:

One matter that has come up is the prospect of a further CT scan perhaps with contrast being done before this boy was discharged on the 23rd. What do you say about the necessity or otherwise on the material that was available to Mr Jensen of doing a further CT scan, with contrast?

Petty, who is a neurosurgeon, said:

Firstly, it wasn’t necessary because the boy was improving, and secondly it would be impossible because, there were only three scanners, at Prince Henry’s, the Melbourne and St Vincent’s and they would refuse to do it because there just were not the facilities available.

So that it was against that background that this was – yes.

MR BONGIORNO: I seem to have drifted away from where we say this case starts. The question that Justice Gaudron raised about the diastasis is on page 630, line 24.

McHUGH J: I think the strongest part from your point of view is at 641, line 17 where he said:

I had looked at the skull x-rays and there was a fracture equivalent ‑ ‑ ‑

MR BONGIORNO: Yes, that was the bit I was looking for, your Honour, thank you.

the site of the injury and the fact that I had looked at the skull x-rays and there was a fracture equivalent and we know that these kinds of clots are associated with that kind of problem.

You see, the other thing that occurred in this case was that Mr Klug at one point during his evidence – perhaps I should preface this. One of the difficulties – the way in which the evidence was led from Mr Klug was somewhat unusual. At some point in his evidence he said, “Well, I have to change the opinion that I gave earlier” because he then realised that the blow was considerably more - heavier than he had originally thought. At 164 he says that. Where he had actually got the extra information from is a bit difficult to determine but at 164 he said –he is reading from reports that he wrote at line 23 he says:

After considering all of these matters –

and he had previously written the passage:

There does appear to be unequivocal evidence that he did receive a blow to his head the question of a head injury was obviously dominant in the minds of those who were responsible for his care during his time in the Western General Hospital. After considering all of these matters I now feel that it is necessary for me to amend the opinion that I forwarded to you in my report dated 17 May 1994. The information in the report from the Western General Hospital certainly indicated that this child did suffer a more serious injury which could not be termed minor. I would now be of the opinion that his condition during his hospital stay was such that serious consideration should have been given to the performance of a cerebral angiogram, accepting that such may have been a negative study and that, as already indicated, such procedure does carry some risk.

And he says:

it would almost certainly have revealed the aneurysm –

And we do not suggest – and this, I suppose, goes to the issue of damage – that if an aneurism had been taken, it would not have found – if an angiogram had been performed, it would have found the aneurism. We do not suggest otherwise. Indeed, the evidence is, I think, all one way on that issue. We do not suggest that there was - - -

CALLINAN J: Justice Gaudron was putting to you before some propositions that would leave open an inference that consideration may have been given to the taking of an angiogram. Do you recollect that?

MR BONGIORNO: Yes, I do, your Honour.

CALLINAN J: I thought myself that an additional factor which would lead to such an inference is the evidence at page 163 that although there were risks, the risks seemed to be relatively slight when you look at, as it were, the cost benefit of an angiogram. It begins about line 24. It is described as “a small risk”. The risk is small but apparent. Is there any evidence to suggest, any evidence different from that in quality?

MR BONGIORNO: Yes, there is, from one doctor but it is contentious, your Honour. It is fair to say that the risk was contentious. I think I can say this: it was not contentious that there was a risk and it was not contentious it is an evasive procedure. It involves the insertion of catheters into small veins at the back of the child’s neck, pushing them up into the base of the brain. It is not contentious that that carries some risk. Different neurosurgeons and radiologists put different emphases on – Klug, for instance, who was, in fact, a paediatric neurosurgeon for most of his professional life, said they did lots of them at the Childrens – so that was there. That evidence was there. The evidence that you could do an angiogram was there.

CALLINAN J: I just thought that it heightened, really, the inference that her Honour Justice Gaudron was suggesting to you that once you knew that this was an available diagnostic tool, then you would use it because it is unlikely that the risks of using it would outweigh the possible advantages. I am not saying that that is the inference that should have been drawn but it is an open inference, I would have thought.

MR BONGIORNO: I must say, I thought Justice Gaudron was addressing the proposition or my contention that there was no evidence that the doctor had not considered - - -

CALLINAN J: No, but it does assist in that, does it not? Well, it may do, perhaps.

MR BONGIORNO: Well, it might.

GLEESON CJ: You were not inviting the Court to entertain the possibility that he had considered it and rejected it?

MR BONGIORNO: No, we were not, because we did not have any evidence. We had no evidence and he could not say.

GLEESON CJ: Well, if he had considered it, with the benefit of hindsight, we know that there is no basis for rejecting it, do we not? Considered the possibility of an aneurism, I mean.

MR BONGIORNO: No, I think the possibility of an aneurism - - -

GLEESON CJ: You were not suggesting that he considered the possibility of an aneurism and rejected it as a possibility?

MR BONGIORNO: No, your Honour, no, we are not. We are saying there is just no evidence because he could not remember.

KIRBY J: That surely cannot be determinative. That cannot be conclusive because, subjectively, “Dr Jensen cannot remember” does not foreclose the jury from looking at the inferences: the inference that he is a skilled neurosurgeon; the inference the young boy has profound coma; the inference that it is impossible to exclude three or four possibilities and the inference that he would, in his mind, had gone over a check but come to a particular conclusion. It seems pretty clear he would have considered it and come to the view, “Well, this is just a minor thing and it wasn’t a big trauma and, therefore, we’ll just see how it develops.”

MR BONGIORNO: I think, with respect, your Honour, the way Jensen put it was not that, that it was just a minor thing. It was a bad blow to the head and that explained the ‑ ‑ ‑

KIRBY J: Well, does that not add to the fact that he would have had to – or the inference is available to a jury that he would have gone through the check and come to the view that, even though he cannot remember it because this was just one little case 16 years before - you cannot criticise Dr Jensen for not remembering it. But just because he says he does not remember it, does not foreclose the jury from applying its rational consideration to the facts of being invited to the inclusion that given the background, given the history, that he would have gone through the process of eliminating that possibility and as it is said, negligibly or carelessly.

GLEESON CJ: Which would have been the better result from the plaintiff’s point of view, that he considered it or that he did not consider it?

MR BONGIORNO: I suppose that he did not consider it, because then he has not – you see it is very difficult to discuss this in the absence of, again, uncontested evidence that at the risk of aneurism in a boy of this age - the statistical risk - to answer Justice Callinan’s comment about statistics earlier - is in Klug’s evidence, and I am now quoting from memory, but I think it was for people under the age of 19 it was one in 200 aneurisms, and aneurisms themselves occur in – I have to find the passage. It is in the beginning of my cross‑examination of Mr Klug, if my junior can just turn it up.

GLEESON CJ: While he is doing that, Mr Bongiorno, could I bring you back to a matter that was raised this morning with Mr Moshinsky. On the evidence, what was the causal relationship, if any, between the blow to the head and the bleeding episode of 25 July?

MR BONGIORNO: The evidence was – I think it would be fair to say that there was either little or none. There was a possibility. Looked at overall - the plaintiff was trying to make a case against the State of Victoria and therefore was trying to say that there the blow from the schoolbag was enough to cause the aneurism. The evidence ‑ ‑ ‑

GLEESON CJ: Caused the aneurism?

MR BONGIORNO: Sorry, caused the bleed of the aneurism. I think I am correct in saying that those doctors that expressed a view on it, I think, were unable to come to any ‑ ‑ ‑

GLEESON CJ: Well that sounds like another ground on which there should have been a verdict for the defendant in favour of the school authorities.

MR BONGIORNO: The school, yes. I think we were having our sixpenny worth in terms of trying to push that line also, actually.

GLEESON CJ: If it be the case that there was not shown to be any causal relationship between the blow to the head and the bleeding on 25 July, then the situation that confronted Mr Jensen was, from his point of view, very unfortunate indeed, was it not, because all attention was being concentrated on the wrongdoing that had been suffered by the child as a result of being hit on the head by another pupil. The provisional diagnosis was head injuries.

MR BONGIORNO: Yes; I might say, as your Honour was speaking, I have recalled that the episode of loss of consciousness in casualty was attributed retrospectively, I think by Mr Cummins, certainly by one of the neurosurgeons, as probably the first of an aneurismal - or first leak of that aneurism.

GLEESON CJ: So, in evaluating the performance of Mr Jensen, you have to consider it in the context, not that he was confronted with a haemorrhage for which there might have been a number of equally possible causes, but that he was confronted by a haemorrhage which everybody was saying was the result of a blow to the back of the head. The question then is whether it was negligent on his part in those circumstances to act as he did.

MR BONGIORNO: The context of it being said to him he ought to have looked at another cause is in the context of it being accepted by everyone at that point that this was a traumatic subarachnoid haemorrhage caused by the blow to the head. The other, again, uncontested fact, is the uncontested evidence from Mr Klug about statistics of aneurisms is at page 187 at the top:

Aneurysms are themselves a reasonably rare form of defect in the arterial system in the brain, are they not?---Yes, they are not common, very well recognised but –
But not common?---No, not common.
Aneurysms in children are extremely uncommon, aren’t they?---They are certainly les common than they are in adults, yes.
Let me suggest to you that the accepted figure for aneurysms in children is about half of one per cent of all aneurysms; would you agree with that?---Yes, that’s a figure that has been quoted, yes.
So if you had 200 people with aneurysms, about 1 of them will be a child?---Yes.

Then his Honour asked a question:

I am talking about cerebral aneurysms, intracranial aneurysms, that is aneurysms in the blood supply system to the brain.
By children there, I suggest to you that the study which is accepted as the statistic in this area is that about half of one per cent of aneurysms occur in people under the age of 19, so we are talking about people up to the age of 19; is that so?---Yes, I believe that figure is correct.
So that if you have just as an ordinary matter of course a child that presents with symptoms referable to some form of haemorrhage in the head, the chances of that haemorrhage being an aneurysm are very, very small, a leaking aneurysm, are very, very small, are they not?---Well, haemorrhage in a head of this type is very uncommon in a child, but if it did occur, then there is a distinct possibility it could be an aneurysm or another vascular malformation.
But I suggest to you the overwhelming cause of haemorrhages in the vascular system of the brain in a child of this age is trauma, is it not?---Of subarachnoid haemorrhage you are asking specifically?
I will confine it to subarachnoid haemorrhage, yes?---I would think that would probably be true, yes, that there would be more cases due to direct trauma rather then the presence of a vascular malformations or other things such as a bleeding disorder.

Then we go on to some interesting jury cross‑examination about people riding horses.

McHUGH J: But, your case, as I understand it, is that you say because there was this concentration on the head injury, that there was no negligence on the part of Mr Jensen for not looking further but particularly after the blood pressure still remained elevated and there were problems after the 19th, did that call for further examination? It seems that even in the witness box Mr Jensen said that he would not – it was no part of his obligation even then to exclude the risk of bleeding from an aneurism?

MR BONGIORNO: Your Honour, ultimately, it gets down to this question of what is the highest the evidence allows criticism of Jensen to be made. The highest – the highest is that he ought to have considered an angiogram. That is the highest that it can possibly be put. That is the highest any of the doctors put it. Now, none of them – all of them ‑ ‑ ‑

McHUGH J: Well, not necessarily consider the angiogram but consider whether or not there might be other causes and he, himself, conceded that at 711. He agreed his duty extended to look at other possible causes of a subarachnoid haemorrhage but then at 712 when it was expressly put to him, line 5:

I suggest to you that the clinical course of this young boy throughout that period of time ought to have seen you exclude the risk of bleeding in the subarachnoid space arising from an aneurysm; do you agree or do you not?

And he said:

No.

So, whether he considered it or not, the fact is it was not even a matter that had to be examined, as far as he was concerned. It never crossed his mind.

MR BONGIORNO: Well, yes. I see the point your Honour is getting to there but just to go back a step to the earlier comment your Honour made, there is evidence – it is referred to by the Court of Appeal as – from Mr Cummins to the effect that anybody who considered the possibility of an aneurism would have gone on to do an angiogram. There is a reference to it being said as if it was obvious.

GLEESON CJ: Well, that is said in the Full Court’s judgment – in the Court of Appeal’s judgment where it was said that answer was given.

MR BONGIORNO: Yes. So, the answer was given, so, we would have to accept that there is evidence there for the purpose of this appeal. We would have to accept that there is evidence that if you considered the possibility of an aneurism you would proceed to an angiogram. So, the two things are inextricably linked. We cannot ‑ ‑ ‑

GLEESON CJ: I may, however, be under a misapprehension but I thought the word he used was “entertained”. I may be wrong about that.

MR BONGIORNO: “Entertained” I think that is so, your Honour, yes. Yes, whatever that ultimately means.

GLEESON CJ: Well, I was going to say, “Whatever actually that means”.

MR BONGIORNO: Yes. I think it was a word introduced by counsel for the plaintiff at some stage and it got used by a few doctors from that point onwards.

GLEESON CJ: At 354 he said:

anyone who would have entertained that diagnosis would have done so.

MR BONGIORNO: I think it is fair to say that the evidence would not have precluded, to look at the evidence in a more general way, if somebody got to a point of considering in a serious sense the question of an aneurism, the only method of diagnosing the aneurism is an angiogram. Query whether you could do it with a CT scan with contrast and the doctors were scratching their heads at that point trying to remember whether 16 years ago you could do that or not and I think there is a bit of query from some of them as to whether that technique was at a point where it could be used.

GLEESON CJ: But, if the doctor was negligent, the practical manifestation of that negligence was discharging the boy from hospital without further investigation or treatment.

MR BONGIORNO: Yes. That was the point I was about to come to, your Honour. It answers the question of, we say, whether there is any evidence as to this question of considering the aneurism/angiogram, because each of the doctors said it was reasonable for Mr Jensen to discharge him when he did.

GLEESON CJ: Now, Mr Jensen was not suggesting that he decided to discharge him after giving thought to whether there was an aneurism and, having thought about that, decided nevertheless to discharge him.

MR BONGIORNO: No.

GLEESON CJ: That was not the defendant’s case.

MR BONGIORNO: No, that was not the defendant’s case. The defendant’s case was that he was fit to be discharged, that the diagnosis of traumatic subarachnoid haemorrhage was still in place, that he was to be discharged and he was to come back for an early outpatient’s review, which is exactly what Mr Cummins said was the appropriate thing to do.

GLEESON CJ: Well, now we know he was not fit to be discharged.

MR BONGIORNO: We now know that, yes.

GLEESON CJ: The question is whether it was negligence on the part of Mr Jensen not to recognise that.

MR BONGIORNO: Yes. Well, it would only be negligence on his part if, in fact, it was negligent for him not - or breach of his duty for him not to have considered and acted upon that consideration of an aneurism prior to discharge because if it was ‑ ‑ ‑

McHUGH J: I mean, he obviously treated this case as a head injury. In fact, he said it again and again in his evidence, particularly under cross‑examination.

MR BONGIORNO: Yes.

McHUGH J: This was a history of a head case. He was not there to conduct a legal inquiry as to the cause of it, but it is a question of whether or not he should have followed Cromwell’s advice and said, “I think that we may be mistaken”.

MR BONGIORNO: We say that the only practical manifestation of that could have been to have not discharged him but both doctors, all the doctors who were asked, said that the discharge was perfectly reasonable in the circumstances, given everything that had occurred. That is at page 167, Mr Klug, in‑chief, actually to Mr Keenan, says:

What about the discharge of this patient, having regard to what you saw in the notes in relation to the persistent opisthotonos and the medication, have you any opinion on that matter?---Again, the records indicate that he was improved at the time and he was considered simply to have a head injury and a sequelae, then I think it is not unreasonable that he was discharged, providing he was to have early and a very adequate follow up to ensure that progress was in fact satisfactory.

GLEESON CJ: Yes, but the critical question is whether it was reasonable to consider that he simply had a head injury.

MR BONGIORNO: Yes, but Klug there must be taken, in our submission, to be accepting that in saying he was not being asked if they only thought he had a head injury, was it appropriate for him to be discharged. He is being asked by counsel for the plaintiff:

having regard to what you saw in the notes in relation to the persistent opisthotonos and the medication, have you any opinion on that matter?

At line 14 on the following page, he then expands on that. Again, still in‑chief:

Was it consistent with the cause of the subarachnoid haemorrhage being a traumatic blow to the head some four days earlier?---If it was a severe blow to the head four days earlier, I think it could be consistent. If it was a minor blow to the head, I feel it is an unlikely appearance.

Of course, Klug had revised his opinion ultimately to say that he thought it was a serious blow to the head, and that is a bit earlier at 164.

KIRBY J: What is your answer to the Chief Justice’s question earlier that concerned the way to which the Court of Appeal seems to have attached to the way in which particular questions were answered, that being, on the face of things, if it is important, something not for the Court of Appeal or for the trial judge but for the jury?

MR BONGIORNO: If I can just go to that.

KIRBY J: There are two references to it, I think.

MR BONGIORNO: Yes, there are. To take the second one, I could not remember - - -

KIRBY J: There is one at the bottom of 843:

the trial judge was in a far better position than we are to determine that and he resolved the question against the appellant –

if there is such a nuance, if there is such an issue, that would be for the jury, not the trial judge.

MR BONGIORNO: Yes. Your Honour, if you can go back up 843, at the appeal, my learned friends pitched their case very strongly on the basis that Mr Klug was in fact saying that Jensen should have performed an angiogram and they explained his failure to say so in terms because he was speaking politely. Now, the words he used certainly do not suggest that Jensen should have performed an angiogram. They say he should have, at the highest, considered the performance of an angiogram. Now, Justice Hayne at 843 is saying, at line 14:

The furthest that Klug went in his evidence, as the parts of his evidence I have emphasized reveal, was to say that an angiogram should have been “considered”. It was suggested to us that the witness should be understood as having meant not simply that Jensen should have thought about conducting an angiogram but that, having considered it, he should then have ordered it. In this respect, the learned trial judge was in a far better position than we are to detect the intended meaning of the witness’s answers.

Now, what our learned friends are asking the court to do, is the reverse of a demeanour submission. It is saying, disregard what he said and divine from his demeanour in some way that he really did not mean that, he meant something far stronger. It goes on:

Counsel for the appellant submitted that we should understand the witness to have been (as he put it) “speaking politely” and that the witness was of the view that action was required, not simply thought. I greatly doubt that that is so.

We say that the words the witness used are what the Court of Appeal, in the absence of any other evidence, any other compelling reason, should have taken as being the evidence, and that is what the judge did.

KIRBY J: I understand that point but there is an alternative view and that is that Dr Klug was making the point that he was not the treating doctor and that he was not there and that all one can say is that that ought to have been considered and not considered just for a theoretical or academic exercise but with a view to doing something about it, if you considered the issue. I mean, we are talking here about the practical hands-on world of a neurosurgeon in an emergency ward. So that I do not think this is a matter for just dismissal as a pure consideration, given the word used. It is consideration with a view to something happening, I would have thought.

MR BONGIORNO: Your Honour, we would say that what our learned friends are seeking to do is to elevate – if that submission has any force at all, that you would have a situation where you could never have a case taken away from a jury because you could always say, “Well, the witnesses really meant a little bit different to what they actually said”. That just is not on in this case. The doctor’s words were clear. He gave evidence that an angiogram should have been considered. He refused to come to the point of saying an angiogram should have been conducted. What our friends are saying is that his demeanour suggested that an angiogram should have been conducted.

In our submission, you cannot make that sort of submission to a Court of Appeal where it has not had any – particularly where in this instance, in so far as his obligation is to do so, it has been looked at by the trial judge in any event, otherwise we could always have a situation where someone could go to a Court of Appeal and say it should have been left to the jury because he was scratching his head at the time and the jury could have drawn from that X, Y and Z or whatever. We say it is the reverse of the ordinary comment that the trial judge is in the best position. This is saying the Court of Appeal is in a position where it ought to read something into the witness’s words that are not there. It was never raised, I might say. It was an argument that was put in the Court of Appeal. It was never put to Justice Harper in the first instance.

GLEESON CJ: Could I ask you a question about the process of reasoning of Mr Justice Harper, Mr Bongiorno. I see it from pages 10 to 12 of the supplementary materials that we have. On page 10 in the first complete paragraph he summarises the case for the plaintiff. Is that a fair summary?

MR BONGIORNO: Yes, I think I ‑ ‑ ‑

GLEESON CJ: Then he says in the next sentence:

There is some evidence to support much of this line of reasoning.

He recites that evidence and then on page 11 he says:

On the other hand, the overwhelming body of evidence points to the conclusion that Mr Jensen was not at fault –

Simply as a matter of words, that sounds a little like a judge saying there is some evidence to support at least a good deal of what the plaintiff is saying but the preponderance of evidence is in the other direction. Would that be a correct approach to take?

MR BONGIORNO: No, it would not, your Honour, and we say that his Honour did not do that. His Honour – we made a note of this in our ‑ ‑ ‑

GLEESON CJ: Perhaps I can complete the process of reasoning before you respond to this. You then find the final step in his reasoning on page 12 where he says:

not one medical witness said that…..he –

the witness –

would have ordered an angiogram…..In the absence of such evidence…..it would, in my opinion, not be open to the jury to find that Mr Jensen was in breach of his duty –

Is that a process of reasoning that is consistent with authority?

MR BONGIORNO: We say that what his Honour is really – if one looks at that passage in isolation, “On the other hand, the overwhelming body of evidence” et cetera, but on page 12 we say that is the proper test – when he says:

None suggested that the failure to order an angiogram was in any way open to criticism.

McHUGH J: But that is the Bolam test. That is bringing back Bolam.

MR BONGIORNO: We say that Bolam in this area is still ‑ ‑ ‑

KIRBY J: It is a ghost that walks.

MR BONGIORNO: We say it is more than a ghost. It is a ghost with skin.

McHUGH J: You have obviously got Bolam back into the courtroom again. You put your own conceptual framework on this case, asking again and again whether the diagnosis of traumatic subarachnoid haemorrhage was a reasonable diagnosis, which was not - and you kept getting the answer, yes. But that was not the real issue. It could well be a reasonable diagnosis, but the real issue was whether, although it was a reasonable hypothesis, whether or not the doctor should have taken steps to eliminate other possible causes. The product of the way you impress your case on the running of it, and this use of Bolam, seems to me at the moment to have led the court into error.

MR BONGIORNO: If only I was so persuasive. This is allied a little to the question that was asked earlier – I think during Mr Moshinsky’s examination – is it appropriate to ask a doctor, “Would you have done such‑and‑such?”. In this instance, the answer which we would suggest to that is that where you have a particularly esoteric field, 20 practitioners in the State, probably means something of the order of 50 or 60 in the country, it may well be that a case could be run where you called every doctor, every expert, every available one, in which case all you would be doing would be attaining an evidentiary basis for an appropriate – your Honour would say Bolam‑type submission – but, nevertheless, explanation to the jury as to what was and what not within the proper purview of a doctor placed in the position of Mr Jensen, and you would be doing it by degrees.

In our submission, that would be perfectly reasonable; so that the converse is true, that where no doctor suggested that the failure to order an angiogram was open to criticism, which is a shorthand way of saying “was in breach of any duty”, because if it is open to criticism it may not be a breach of duty, but if it is a breach of duty it is certainly open to criticism. We would say that all his Honour is doing there is saying there is no evidence on the issue of the way in which the plaintiff pitched it at this time. It is important to realise that it was pitched at this time on a clear basis that there was a failure to order an angiogram. The ground has shifted a bit between there and here, down to the question of consideration of an angiogram.

But to take your Honour the Chief Justice’s point up, it may well be that Justice Harper’s analysis of it could have been more felicitously put but we say that last paragraph answers the – and applies the test which he recognised at the beginning of his judgment as being the appropriate one, albeit with Justice Kirby’s overlay, we say that the application of those words is the same. And, indeed, in any event, when it got to Justice Hayne, he recognised the same problem as your Honour, the Chief Justice, and corrected it in so far as it needed correcting and he did that at 839 where his Honour says –he quotes the passage that the Chief Justice has quoted. His Honour there clearly recognises:

But the question to be determined by his Honour in this case was not whether the weight of the evidence tended one way or another. The application that was…..no evidence ‑ ‑ ‑

McHUGH J: But if you go back to the – the trial judge said at 11 of the book at line 9 where he says, reflecting the way that you have put your stamp on the case:

the overwhelming body of evidence points to the conclusion that Mr Jensen was not at fault in persisting with his diagnosis of traumatic –

et cetera, et cetera, but that really was not the issue. The question is really whether he should have looked to see whether there were other possible causes and, because he had failed to do so, why is it arguable that there was a case to go to the jury?

MR BONGIORNO: Well, ultimately, we have got to say that there ought to have been no case – that there ought to have been an angiogram means no case to go to the jury. That has to be the position we would take ultimately.

McHUGH J: Yes.

MR BONGIORNO: Your Honours, I have strayed from the ‑ ‑ ‑

KIRBY J: Would it not have been open to the jury – I have read again those passages in Dr Klug’s evidence where he said, “Ought to be considered, should have been considered, should have been considered” - would it not have been possible – leave aside the nuances of the parents and so on – for the jury to say, “Well, that is just the deference that is shown within the medical profession. They don’t say he ought to have done that, they say he ought to have considered it”. I mean, that is one way of reading it. It is like a lawyer speaking about another lawyer. You do not sort of say, “Well, he was a fool not to have put that.” You would express it in a around about way and it just is open to the interpretation by a tribunal of fact that he is saying he ought to have considered and acted upon it and he is being courteous and respectful of the role of the treating doctor in expressing that view.

MR BONGIORNO: He goes further than that, in our submission, your Honour, and he actually says it is the treating doctor who is in the position of making that decision.

KIRBY J: Of course he is.

MR BONGIORNO: He is effectively the only one who can make it.

KIRBY J: Yes, but when you are looking backwards, as a court of law must do, then you cannot surrender it entirely to the treating doctor. That is the point that was made in Rogers v Whitaker and by Chief Justice King in R v K, or whatever it was, that Rogers v Whitaker proved, that you cannot surrender it solely to the treating doctor. That is where this country departed from Bolam.

MR BONGIORNO: Yes.

KIRBY J: So, uncomfortable as it is for one doctor with the benefit of hindsight to substitute his or her view for that of the treating doctor, may not the way Dr Klug has wrapped it up simply be interpreted by the jury as saying, for “considered” read consider and act upon?

MR BONGIORNO: Your Honour, taken as your Honour puts it, I would not be able to argue against that but I am sure that, in fact, Mr Klug, at some point, says that he gives the countervailing considerations to the question of an angiogram and it is on those that he says, “Now that is a decision for the clinician”.

I appreciate the point your Honour makes about Rogers v Whitaker, but it still does not provide the evidence if it is not there. Whether, in fact, Klug might have said something - but I will ask my junior to try – I am sure there is a passage in which, I think, cross‑examined, he said, “It is not an easy decision to make” and it is one that you would need to have a lot more – effectively, one of the other uncontradicted aspects of this case was, of course, that it was 16 years old and that the notes were, at best - every doctor cross‑examined agreed that the notes were, at best, what all notes are.

They are a summary of salient points that probably, and one hopes, contain most of the important things but may not always do so and, indeed, Mr Cummins cross‑examined, and this was not contested in any other way, said that, put to him the proposition that notes are only as good as the person writing them, there is a capacity to write them and he said, “No, they are never as good as the person’s writing them capacity to write them”. They are never written as well as they might be.

It was against that background that Dr Klug and others made comments like, “It is all very well, effectively, for me to say all I am prepared to say is he should have considered it.” Now, I suppose, put at its highest, a submission to a jury, “Well, you should disregard what Mr Klug said and should read into his words a form of politeness that really he was saying something else” would normally attract a considerable comment from the judge in his charge to the effect that it was not what the witness said and unless there was something in his demeanour that the judge could then reiterate and describe, you would have a problem of ‑ ‑ ‑

KIRBY J: It is not so much demeanour. It is logic, of applying logic to the courtesies of one profession to members of the profession.

MR BONGIORNO: I suppose, it is one of those rare situations where if a judge divined that that was going on, it would not be in the interests of the defendant to elicit the courtesy from the witness. The plaintiff probably could not because he could not ask him leading questions and it would be probably the judge’s duty to say, “Are you just being polite, doctor? Is this a polite way of saying you really think he should have done an angiogram?”, but in the absence of that, it would be dangerous, in our submission, for a jury to come to the conclusion that – and, indeed, a Court of Appeal, looking at it then, in retrospect, a plaintiff would be hard put to put a submission to a Court of Appeal along the lines that your Honour is suggesting.

KIRBY J: I think it would be a brave judge who would intrude into a delicate area like this. I think you would leave it to the witness. It is just a question of how one interprets those statements, whether they are to be interpreted as meaning, “Well, I really think he ought to have considered and acted upon it but I don’t like to put it like that because I respect the fact that he was the treating doctor and I wasn’t there and you’ve got to be there, really, to make the decision.” Well, unfortunately, in courts of law, we do not accede that to the doctor.

MR BONGIORNO: But if, in fact, the doctor is simply saying, “Well, I’ve only read the notes. I acknowledge the notes are never going to be the full story”, which is really what he is saying – at page 251 he was cross‑examined by – I suppose it was probably a question I asked:

And Mr Jensen, I suggest to you, is the one person in this case, so far anyway, the one medically trained person who was present and saw the boy in hospital over those days, the number of times that he did, had his discussion with the residents, presumably had his discussions with the nurses, so that I would suggest to you that he is in a much better position than you or the other consultant neurosurgeons who have looked at the notes since to determine the extent of that head injury?---Yes, I think the person on the spot, an experienced person, is the best person to judge that.

Now, it is pretty trite, really. One would expect any consultant to say the same thing and probably to mean it, not necessarily, we would say, as a ‑ ‑ ‑

KIRBY J: Good jury stuff that. Maybe from your point of view, it is a tragedy it did not go to the jury. Anyway, do not answer that.

MR BONGIORNO: We are not allowed to talk to juries in Victoria, your Honour, so, no one knows. I see the time is getting on and there are some matters that I wanted to be sure that I made a point of here. We say that when one applies the sort of test that is not in dispute from cases like Hocking v Bell or the old English cases or the Irish Railway Case, all of which are referred to in our outline of argument and we will not trouble the Court with reference to them, the application of the principle must take into account, we say, the complexity or simplicity of the issues to be considered, and we give the examples of supermarket – olive oil on the floor, which is the simplest, and the question of histopathological examination of slides as perhaps at the other end of the spectrum, where one could have an allegation of negligence against a pathologist who misinterpreted a slide. The jury would need extensive evidence and education on how pathologists operate; what histology is, et cetera, before they could come to a conclusion. The second point we make which is really the same thing is the degree to which the court must resort to expert opinion to comprehend those issues and, conversely, whether the jury could decide the issue for itself.

The other matter that is not irrelevant, we say, is whether a trial judge could put alternate conclusions to the jury for its consideration, derived from a rational consideration of the evidence as distinct from asking it to speculate between competing contentions unsupported by evidence. One could imagine a situation – and this case might well have been one – where the trial judge is faced with saying, in effect, “How am I going to put this case to the jury?” to the plaintiff’s counsel. “How is this case going to be put? What do you say is the evidence which goes to these issues?”

If a judge cannot at that point or counsel for the plaintiff cannot point to specific matters where the jury can be asked, “Well, if you accept this, then the line of reasoning is this and this and this, leading to a conclusion there” which is a verdict for the plaintiff, “If you don’t accept that, the line of reasoning breaks down there and it must result in a verdict for the defendant”. In this instance we say that having regard to the nature of the evidence as a whole and the fact that there was nothing that you could point to on, say, the issue of when this should have been considered, as Justice Hayne in the Court of Appeal pointed out, we say what is the trial judge to have said? He should have considered the question of an aneurism ‑ ‑ ‑

KIRBY J: I will tell you what he would have said. He will then go on and say, “The evidence of Dr Klug and Dr Cummins is he should have considered that and the inference that you are invited to draw is that had he considered it, given the history of trauma, given his age, given the CAT scan with the collection of blood, given the profound coma for the period, that had he considered that against that background, he would have done more than Dr Jensen did. He would in these circumstances have proceeded to undertake the angiogram whether, having considered those background facts, that is what he ought to have done is a matter for you”.

MR BONGIORNO: But the judge would also then have to deal with the evidence from the doctors who said it was reasonable for him to be discharged without that having been done. That is the ‑ ‑ ‑

KIRBY J: He would have to point that out, but then that is the jury question.

McHUGH J: The problem I have – and perhaps it is an omission by the cross‑examiner – so far as I can see on a quick read through of the cross‑examination, it was never put to Mr Jensen that the presence of blood in the fourth ventricle destroyed his theory of traumatic injury. He would have had some trouble dealing with that, I would imagine, if it had been put to him. I do not think it was. Maybe it is there somewhere. I could not see it.

MR BONGIORNO: It was not, your Honour, but I do not think it does and that is ‑ ‑ ‑

McHUGH J: Well, it is not consistent with it, is it?

MR BONGIORNO: It is at best on Cummins’ view a clue retrospectively to what was eventually the situation, but I think Klug conceded that it was completely consistent with a traumatically-caused injury.

McHUGH J: Does he?

GLEESON CJ: Mr Justice Harper said: “The presence of blood in the fourth ventricle pointed in some other direction”.

MR BONGIORNO: That was from Mr Cummins’ evidence and, of course, Mr Cummins – I was going to come to that eventually – Mr Cummins’ evidence is overlain with the concession made in cross‑examination - and this is to take up Justice Callinan’s point this morning - that a court cannot ignore a concession such as, effectively, “I am looking with hindsight”. It is equivalent – it is a lesser concession than that, “I am withdrawing my evidence”, but it is a concession which, uncontested, as it was, colours the whole of his evidence in-chief.

KIRBY J: What else could he do? What else is this? What else is every case except wisdom after the event? But it does not relieve us from our obligation of looking back. We cannot put out of our mind – this is one of the arguments against loss of a chance being taken into account. It is impossible to put out of your mind the fact that destiny is written. So, I think that is all the doctor is saying, “I have a hindsight. He did not have that”.

MR BONGIORNO: Well, normally, we would submit that that would be understood to mean that, “It is all very well for me now, I know what happened, so I can easily look back and say, now, that should have - if I look back from this position, the instrument that they talk about, the retrospectoscope – that it is a marvellous diagnostic tool”. It enables you to explain all sorts of things that were inexplicable looking forward. Now, evidence, in fact - and one of the problems about the way in which this case was conducted, evidence like that would normally be inadmissible.

GLEESON CJ: Presumably, juries are also told that there is a difference between negligence and conduct which, with the benefit of hindsight, can be seen to have involved an error of judgment.

MR BONGIORNO: Yes, they would normally be told that if that is the relevant – but the evidence is inadmissible if, in fact, the doctor’s opinion is only based on what he now knows and the doctor’s opinion is relevant only if it is expressed to be in terms of taking into account everything that the clinician knew or ought to have known, “My opinion is so and so”. It would be strictly inadmissible and, indeed, in so far as it comes out in cross‑examination that it is a hindsight view, a bit late to object to it with the jury, but you would hope then that the judge would say to the jury, “Well, with comments made by this doctor up until the point where he conceded that he was using information that he had gathered since, in fact, does not go to any issue in the case”.

I mean, it is the same question that the Griekspoor evidence – there was a dispute between the counsel for the plaintiff and me at the point of which Griekspoor was called, I think, where – or one of the doctors had something put to him from Griekspoor’s evidence and the judge, at my request, gave the jury a direction in the course of the trail to the effect that this had no relevance to anything Mr Jensen might have been concerned with.

GLEESON CJ: Mr Bongiorno, how long do you expect to require to complete your argument?

MR BONGIORNO: Half an hour or a bit longer, your Honour.

GLEESON CJ: How long do you expect to be in reply, Mr Moshinsky?

MR MOSHINSKY: I do not anticipate I will be seeking a right of reply at this stage, your Honour.

GLEESON CJ: All right, we will sit through until 4.30 pm then.

MR BONGIORNO: I am sorry, your Honours, I would have hoped to have been finished by now but – we say that the essence of the question is one of rationality. Having regard to the evidence, could a rational decision be made in the circumstances?

To take up Justice McHugh’s earlier question about why Jensen was not cross‑examined. At 249 the cross‑examination of Mr Klug:

And so that there was nothing there, nothing in the CT scan, I suggest to you, that in any way contradicted Mr Jensen’s diagnosis?‑‑‑Well, it was a little more than a subarachnoid haemorrhage. There was intraventricular haemorrhage as well quite clearly shown on the scan, so the pattern of the haemorrhage shown on the scan was not that typical, in my opinion, of a traumatic subarachhnoid haemorrhage because the blood was in other areas.
But in fact it was quite consistent with a traumatic subarachnoid haemorrhage, wasn’t it. You could well get that picture and a traumatic subarachnoid haemorrhage?---There was blood in the subarachnoid space but there was also an intraventricular haemorrhage.
But that could occur as a result of trauma?---Certainly.
Perhaps I should put it another way: the CT scan, if one had formed the view that this boy’s problems were due to trauma, due to being hit with a school bag in a fight, as the notes note -–one of them says hit with a loaded school bag in a fight, something of that nature – the CT scan does nothing to contradict that, does it?---No, it doesn’t precisely contradict it but the pattern I think would be a little unusual from that mechanism but it doesn’t completely contradict it.

That is the passage I was referring to. There is a bit of curate’s egg; it is a bit both ways.

We say that, getting back to our notes, the evidence of Klug only established that consideration should have been given to an angiogram – this is Justice Hayne’s judgment at 843 that we are referring to, and we say is the correct analysis in the Court of Appeal - the evidence of Cummins only led to the conclusion that an angiogram was warranted if a differential diagnosis was entertained by the relevant clinician, being Jensen, and as your Honour the Chief Justice has raised the question of what “entertained” meant, we cannot take that any further other than to say that I think that it came at some point from a question that I think counsel for the plaintiff asked. It was then taken up and used by him and, I think, some of the doctors.

We say the evidence did not establish that a reasonable neurosurgeon would necessarily have reconsidered the diagnosis, so as to entertain such a diagnosis before the appellant was discharged from hospital, which is the crucial point Justice Hayne relies on. Then the final difficulty that Justice Hayne recognised was that there was simply no evidence that Jensen did not consider the possibility of ordering an angiogram, and we have discussed that already. I do no more than repeat what I said in answer to questions from Justice Gaudron. We say that the fact that something was not discussed; the fact that something is not in the notes, given where the onus of proof lies, is not sufficient to found an inference that something was not considered.

KIRBY J: Does it really come down to that? Is it your proposition that the plaintiff, bearing the onus of proof, must get along an expert who says that what the doctor did here was inadequate and he or she should have done something else and that they could never get their doctors, their experts up to that point?

MR BONGIORNO: That is effectively the case.

KIRBY J: The most that they could get them up to was they should have considered it?

MR BONGIORNO: Yes.

KIRBY J: But they never chanced their hand and put their position forward to take the plaintiff beyond the barrier?

MR BONGIORNO: That is so, your Honour.

KIRBY J: The evidence just fell short?

MR BONGIORNO: It fell short at all points.

KIRBY J: And that it was not open to a jury to infer the next step, it is a burden on the plaintiff to prove his case and if he cannot do that, well, that is just a failure to establish the case and that the Court of Appeal was right in saying that that was where it ended at the end of the trial?

MR BONGIORNO: Yes. We certainly have to embrace that. We cannot do otherwise and maintain our position. In the end, one is talking about ‑ ‑ ‑

KIRBY J: You would think they could have trawled Collins Street or Macquarie Street or Wickham Terrace or Harley Street and found somebody who would have said, “Well, given these indicia, the blood, the CAT scan and so and so and so and so, I think he should have, in those circumstances” but they could not get anyone to say that.

MR BONGIORNO: Well, they called four eminent neurosurgeons from Melbourne. I mean, one ‑ ‑ ‑

KIRBY J: I think that is the strength of your case.

MR BONGIORNO: I know we called – they called two. They called, certainly, Mr Cummins and Mr Klug and Dr Rosenfeld and then we called a number who virtually said the same thing but, as we point out in our submissions, for what it is worth, that 20 per cent of the neurosurgeons in Melbourne gave evidence in that trial, not counting Jensen. If you count him it is 25 per cent, so ‑ ‑ ‑

KIRBY J: This, of course, is one of the problems that they are meeting each other, as we do, in a small circle and they go to conferences together and they go to civil functions, social functions together and it is difficult. One has only to think of oneself giving evidence against a lawyer who made a mistake. It is difficult and it would tend to be expressed in polite language because there but for the grace of God go all or us in making professional mistakes.

MR BONGIORNO: It is, your Honour, but –yes. Whilst that may be so, your Honour, and the difference of opinion between Justice McHugh as to perhaps the Sydney experience and Justice Callinan as perhaps to Queensland experience is an irresolvable problem, if it is a problem. I mean, Albrighton’s Case in the New South Wale Court of Appeal – I cannot now recall whether your Honour was on that but certainly that court ‑ ‑ ‑

KIRBY J: They called an expert from London.

MR BONGIORNO: Yes, and the court wondered why – I think it was a penniless Turkish migrant needed to import somebody from London and Justice McHugh referred earlier to getting disbarred doctors or struck off doctors as being experts in some cases.

McHUGH J: Sir Garfield Barwick ran a case once where the only witness he could use was a doctor who had been struck off the rolls and never done the operation but had seen it done as a student. It was the only evidence that he could get him to the jury.

MR BONGIORNO: There was a time in Melbourne when there were some maverick – what were said to be maverick practitioners who were prepared to give evidence that – it is not for me to give evidence to this Court from the Bar table but standing where I often stand for doctors there seems to be an increasing number of people prepared to go into the box and say the opposite these days.

McHUGH J: Even people in universities, a lot of witnesses seem to be people teaching, rather than ‑ ‑ ‑

MR BONGIORNO: There are clinicians as well, we certainly find in Melbourne, but we would say that all that comes out of that is that the principles of law, as we understand them, ought to be applied rather than that there ought to be any consideration of whether it is or is not difficult.

The converse, of course, is that when you are dealing with an area as esoteric as this, one has to be very careful not to see a breach of duty simply because something has gone wrong. It is an area of medicine where one expects that dealing with intricate structures and intricate ideas and intricate things and life‑threatening things, that there will be mistakes from time to time that are not necessarily negligent. The arguments about defence of medicine and everything are all too well‑known and are not relevant to the legal issues in any event.

As my learned junior reminds me, the reason I, perhaps, could not remember his name, we did not even cross‑examine one of the plaintiff’s experts, Mr Rosenfeld, a neurosurgeon who, in evidence in‑chief, we say, did not get the plaintiff up to anywhere near the level.

We make reference in our outline to Rogers v Whitaker and we say that, looking at page 9, in a case such as this we accept Justice Gaudron’s invitation that Bolam may well be - or the expression of the law in Bolam may well be the way in which a judge would have to ultimately put a case like this to a jury, that it is an area where the jury is going to be completely lost if it has not got experts who can guide it to an understanding of the issues and, ultimately, to a resolution of them in accordance with what a reasonable doctor in the circumstances would have done.

We say that the fact that we are dealing in this particular area makes it even more difficult than might normally be the case, and we have given the examples in our outline of the simple case of the unsterile needle or whatever, and the complicated case of the histopathology which went wrong, where you would have to educate the jury, and the judge as well probably, as to the arcane and esoteric science of pathology as practised through a microscope.

We say that when you take individual bits of the evidence, as we say the plaintiff has to do to try and get a case here, when it is viewed against the difficulties of the issues involved and the difficulties of the science and medicine involved, the application of the principle in Hocking v Bell or Bressington or the Irish Railway case or the others, demands that there be more than a scintilla of evidence, that it be evidence which smacks of reasonableness or rationality.

Now we deal in paragraph 15 of our argument with the question of whether there was a question of “speaking politely”, and I have already made answer to as many of Justice Kirby’s questions as I could, in that respect. There is another passage in the Court of Appeal judgment where a reference to what the trial judge might have thought – this is at page 844, at line 22:

that was said, so we were told, in a tone of voice which implied that it was obvious.

I do not recall that, either in the trial court or in the Court of Appeal. My learned junior tells me that Mr Moshinsky said that to the court on instructions, in the Court of Appeal, but I do not have any recollection of it at all or what it means. We have to concede that Mr Cummins said, “Anyone who entertained that diagnosis would conduct an angiogram”, we are stuck with that. We say it as one of the links in the plaintiff’s case, on the question of evidence.

I do not know where Justice Hayne got that from. I hear Mr Moshinsky saying he did not say it. I have no recollection at all of it, or of Mr Cummins saying it in the trial court as if it was a tone of voice that implied it was obvious. I just have no recollection of it at all. So, I cannot say what Justice Hayne meant when he said that.

Your Honours, so far as the damage issue is concerned, we do not make any – two reasons we say nothing of that because we say that this case was not at any stage a case in which the question of damage was argued. We have never cross‑contended, did not cross‑contend in the Court of Appeal that the case failed on that issue. The plaintiff’s case had always been that there ought to have been an angiogram. If there had been an angiogram there is no doubt we would have to concede, at least for the purposes of the argument at this point, that that would have revealed the aneurism, and that at that point there would have been some course which could have been followed.

We say all of that, of course with the caveat that should this matter go to a retrial that will depend on the evidence at that time and what concessions doctors make next time as to what might or might not have happened. There is a very good argument that would have gone to the jury, ultimately, had this matter gone any further beyond Justice Harper’s ruling, that it would not have made any difference at all, because there was ample evidence that the practice at the time was to delay. The delay may well have meant that the bleed occurred in any event. There was evidence that Amicar was no longer a drug of any – I think I am now quoting correctly – that Amicar might have been given but the doctors in 1996 were saying they would not touch it because it did all sorts of things – produced other bad side effects, and indeed, I think it was also said, did not do the thing that it was marketed for.

CALLINAN J: Mr Bongiorno, you are not saying, though, that this could not be a loss of chance case?

MR BONGIORNO: No, I am not saying that.

CALLINAN J: You are not saying that it is either one or the other, you might well want to put in the alternative to the a jury on any retrial if there

is one, that this is merely a loss of chance case and that the damages should be reduced accordingly.

MR BONGIORNO: Yes, that is why we ‑ ‑ ‑

CALLINAN J: You are not conceding anything about that ‑ ‑ ‑

MR BONGIORNO: I am not conceding anything that Mr Moshinsky said. We simply put no argument because we say that this was never considered either by the trial judge or by the Court of Appeal and that it does not ‑ ‑ ‑

CALLINAN J: It seems to me that even on the state of the evidence now, that might be arguable - without taking any concluded view about it, that you might have been able to argue that, having regard to the uncertainties and the delay and the nature of the invasive procedure, that there should, perhaps, be a discounting or, perhaps, a very significant reduction.

MR BONGIORNO: Yes, and it may not sound in anything of significant damages at all.

CALLINAN J: But those are essentially matters for a jury.

MR BONGIORNO: Yes, and we concede that and we do not ‑ ‑ ‑

CALLINAN J: You do not concede that it is not a loss of chance because it may well be in the alternative?

MR BONGIORNO: No, your Honour, we do not, and we say that, in any event, all of this would fall to be determined if, contrary to our submissions, this Court ordered a retrial. In our submission, the Court ought to dismiss this appeal with costs.

GLEESON CJ: Thank you, Mr Bongiorno. Mr Moshinsky?

MR MOSHINSKY: No, I do not seek a right of reply.

GLEESON CJ: We will reserve our decision in this matter.

AT 4.23 PM THE MATTER WAS ADJOURNED

[1998] HCATrans 402

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Duty of Care

Negligence

Damages

Causation

Appeal