Paul v Cooke

[2014] HCATrans 25

[2014] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S193 of 2013

B e t w e e n -

CHRISTINE PAUL

Applicant

and

KENNETH COOKE

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2014, AT 9.36 AM

Copyright in the High Court of Australia

MR D.E. GRAHAM, SC:   May it please the Court, I appear with my learned friend, MR R.A. O’KEEFE, for the applicant.  (instructed by Maurice Blackburn Cashman)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MS V.A. THOMAS, for the respondent.  (instructed by Ashurst Australia)

KIEFEL J:   Yes, Mr Graham.

MR GRAHAM: Your Honours would have seen that the special leave questions fall under two headings, “Inherent risk” and what I will call “scope of liability” causation the second limb under section 5D(1)(b) of the Civil Liability Act (NSW). There were no facts in dispute in this case, although there is a small dispute about the legal significance of one factual finding, namely in relation to the risks of rupture and stroke at the two points in time. Your Honours may accept that there are no findings that are in dispute in this case.

This case also is of national importance, we say, because the provisions in question are replicated throughout the other States and Territories.  May I first deal with the issue of causation?  There does not appear to be any serious dispute from the respondent in relation to the general importance of the inherent risk question.  In any event, on one view, the applicant needs to pass through the causation gateway in order for this Court to consider the inherent risk question.

BELL J:   The Court of Appeal was unanimous in thinking that gateway was very firmly closed.

MR GRAHAM:   We say that view and that decision, your Honour, was wrong and depends upon some fundamental errors in relation to questions about increase in risk and “failure to warn” cases as exemplified in the decision in this Court in Chappel v Hart, in the House of Lords in Chester v Afshar.

BELL J:   The matter I was taking up with you was before one gets to issues respecting the treatment under the Act of inherent risk you have to face the hurdle of the causation finding under 5D.

MR GRAHAM:   With respect, we do not have to confront any finding because the applicant was successful in proving factual causation.

BELL J:   Factual causation, but that is not the whole of the inquiry.

MR GRAHAM:   It certainly is not, your Honour, and this case in relation to scope of liability, otherwise termed “legal causation” by some is a matter, we say, in its own right of significance as well in relation to the inherent risk.

KIEFEL J:   But even at the factual causation level, why was this defendant’s breach of duty a necessary condition of the occurrence of this harm?

MR GRAHAM:   That is because consistent with the analysis, your Honour, by the High Court in Chappel v Hart, if you compare the two points in time, the overwhelming probability in 2003 if Mrs Paul had undergone the operation she would have had the aneurysm obliterated.  The prospect of her suffering rupture and stroke was less than one per cent.

KIEFEL J:   But it would have been the same ‑ same risk.

MR GRAHAM:   It was the same on one view, your Honour.  It was the same risk but that is not the question as this Court clearly stated in Chappel v Hart.  To focus on the risk before entering the operating theatre is to ignore what the case is about and the harm that has been suffered.  This is not a case like Tabet v Gett where there was no physical injury.  There was harm, a stroke.  So, the correct comparison is what would have happened in relation to the harm that was suffered at the two points in time, not the question of risk because when the harm was suffered all of those considerations, your Honour, in relation to chance, risk and so forth, had played themselves out.

KIEFEL J:   So this is a failure to diagnose?

MR GRAHAM:   It is a “failure to diagnose” case and, we say, as I will ‑ ‑ ‑

KIEFEL J:   What does that cause?

MR GRAHAM:   What does that cause?  It causes, in this case, as distinct from other cases but similar to what occurred in Chappel v Hart and other medical negligence cases that routinely occur, what happened was that it changed the time, place and circumstances of treatment. 

KIEFEL J:   It created a period of time.  We are talking about delay.  The delay was productive of nothing and the risk did not alter, so what did it cause?

MR GRAHAM:   It caused the stroke and because that has already been laid to rest, factual causation, it caused the stroke.

KIEFEL J:   I do not think Justice Basten was necessarily of that view, was he?

MR GRAHAM:   No, he would have liked to entertain factual causation again.  Indeed, his argument in large part was based upon factual causation which he was not entitled to consider because it was not an issue on appeal.

KIEFEL J:   But your view of factual causation relies on the “but for” test, does it not?

MR GRAHAM:   It does.

KIEFEL J:   That is not the whole of factual causation.

MR GRAHAM:   Never was at common law and remains not the case under the Civil Liability Act.

KIEFEL J:   The only thing that changed in the time between the breach of duty and the occurrence of the harm was the method of treating, was it not?  That has nothing to do with the defendant?

MR GRAHAM:   It did.  The defendant’s breach changed the time and the occurrence of treatment just as in Chappel v Hart the circumstances were different between the two points in time.  But let us accept, your Honour, that the risk that was going to be run after receipt of advice was the same at the two points in time.  What has been held against the applicant in the courts below and I hear your Honour questioning me in this Court is that cases where there is no change in risk between two points in time, that is, that the breach only changes the time, place and circumstances of treatment, cannot succeed.  Now, if that were true, then cases like Chappel v Hart would never have succeeded.

BELL J:   The difficulty is that Chappel v Hart was a failure to warn.  The patient was deprived of the opportunity of determining whether or not to run the risk.  This is a failure to diagnose and engage as what the primary judge and the Court of Appeal considered to be a different rule of responsibility for the purpose of the scope of liability inquiry and that you need to get over before one comes to the other issues, it seems to me.

MR GRAHAM:   Yes, we accept that, your Honour, and it plainly is not a “failure to diagnose” case and was never possibly advanced in that way.

BELL J:   So it is not helpful to keep referring to Chappel v Hart.  Rather, you need to address the question which I think is dealt with by your opponent at application book 140, paragraph 11 where it is pointed out that the primary judge concluded that the harm suffered by the applicant was not harm of the kind from which the relevant rule of responsibility was intended to protect the applicant.  Now, that was reasoning that, as is pointed out, Justice Leeming suggested cut to the heart of the matter.  What is wrong with it?

MR GRAHAM: What is wrong with it? A number of things. The first is that it is an unduly narrow construction of the duty to diagnose and the second and more fundamental one which accords with what a court must do under section 5D(1)(b) and that is engage in normative reasoning considering policy and value judgments and that is that the duty – such a duty in those terms does not accord with the practice of medicine or the reality of the practice of medicine or the primary importance of diagnosis to the doctor/patient relationship.

Your Honour has asked whether or why I place, or we place, so much reliance on Chappel v Hart.  It is not because it is a “failure to warn” case but it is a case that shows by analogy to this case that once you have the factual causation issue determined, you must look at policy normative reasoning.  That does not involve increase in risk at all.  It involves questions of the allocation of responsibility, community expectations and setting standards of conduct.  We say pretty basic concept that when you see a doctor, your Honour, the purpose is you want to have a diagnosis.  Everything depends upon a diagnosis and in ‑ ‑ ‑

KIEFEL J:   But one can accept, as was the case here, that there was negligence in a failure to diagnose.  The policy question is whether or not liability should be sheeted home when the inherent risk, of which the plaintiff suffered, came to pass.  In the circumstance where there is no obvious connection between the failure to diagnose and the risk coming to pass, there is only a question of delay which itself is productive of nothing.  The risk has not altered.  The only thing that has changed is the method of treatment which, of itself, could not really be sheeted home to the defendant.  On what basis could liability possibly be imposed?

MR GRAHAM:   On the basis that it is, as a matter of policy and normative reasoning, just that that occurs.

KIEFEL J:   Why?  The connection is – even if you have what you call a factual causative connection which, at best, is very slender, why would this defendant be held liable on any sort of logical analysis?

MR GRAHAM:   Because that is in the nature of the scope of liability and the duty to diagnose.  It gets back to that.

KIEFEL J:   Why is he responsible?  That is what you have to – why should he be responsible?

MR GRAHAM:   One must ask the question, what is the purpose of diagnosis?  This Court considered the purpose of warnings and advice in Rogers v Whitaker and Chappel v Hart.  This case is about the duty to diagnose.

KIEFEL J:   I am sorry, but the liability question is why should he be held responsible for the occurrence – the harm that resulted?  Not just negligence, it is the question which follows.  Given his negligence, why should liability be sheeted home?  Negligence itself is not enough.

MR GRAHAM: No, one has to look at the purpose or the rationale behind the duty that is called into question. That is what is required under section 5D(1)(b). Diagnosis facilitates information being provided to a patient about choices to be made. Treatment may occur or ‑ ‑ ‑

KIEFEL J:   This is not a “failure to warn” case.

MR GRAHAM:   It is repeated against the applicant that it is not a “failure to warn” case.  To uphold that rigid compartmentalisation of the duty of the doctor is to create an artificial boundary to the practice of medicine and it gets back to the policy behind what is the duty to diagnose.  If you do not diagnose something, then it remains undiagnosed.  You do not get the benefit of someone telling you this is wrong with you, these are the treatment options.  You can have treatment now or you can have treatment later.  The consequences of those are X, Y and Z.  You cannot decide to undergo treatment until you have a diagnosis.  It is wrong, we say, to just jump ahead and say the purpose of diagnosis is to enable treatment.  It is to enable timely treatment but it is also to enable advice and information to be provided.

KIEFEL J:   Speaking of compartmentalisation, I take it that your reliance upon a duty to warn is somehow applicable in this case as to overcome the provisions of the inherent risk section and operate where duty to warn arises.

MR GRAHAM:   No, your Honour, no, it is not.  The inherent risk provision and the construction afforded to it by Justice Leeming, with whom Justice Ward and Justice Basten agreed, we say, is wrong and we do not need to invoke section 5I(3) in relation to warnings or risk warnings to succeed on that point.

KIEFEL J:   Why do you say Justice Leeming was wrong?

MR GRAHAM:   Justice Leeming did a number of things.  The first one which we say constitutes a radical change to the law and that is you can use section 5I as a shortcut to liability.  You can go to it as if it is a statutory imprimatur to a separate question and we all know, your Honours, the problems with separate question determinations.

KIEFEL J:   That is true, but this is a provision which can, in a case such as this, produce an insurmountable hurdle.  Why, as a matter of efficiency, would the Court not go directly to it?

MR GRAHAM:   It may be an insurmountable hurdle if you accept the construction given to it by the Court of Appeal.

KIEFEL J:   The words seem tolerably clear.

MR GRAHAM:   With respect, your Honour, it is wrong, as Justice Leeming said, that the words of that provision reflect the elements of the tort involved.  They do not.  Nowhere in the words of section 5I is there reference to duty of care or breach but duty of care or the nature of damage.  How does it work, your Honour, if it is not negligence but, say, a statutory cause of action and questions of power are involved or whether and if a fiduciary duty is also embraced by the definition as seems to be open on the construction given to it by Justice Leeming.  It cannot and does not refer to all of the elements of the tort of negligence.

KIEFEL J:   Putting all of that aside, you accept that the plaintiff suffered from an inherent risk and that risk materialised?

MR GRAHAM:   No, we do not accept that there was an inherent risk and that was argued at first instance and was in the submissions in the Court of Appeal.  We say, to put it as simply as I can, an inherent risk is something that it is impossible to avoid because the language in section 5I(2) is of a risk that “cannot be avoided” – cannot ‑ ‑ ‑

BELL J:   “Exercise of reasonable care and skill”.

MR GRAHAM:   Yes, your Honour, but the reference to “cannot” must mean that it is impossible to.  Hence, if it is possible to avoid it, then it cannot be inherent.  There are inherent ‑ ‑ ‑

KIEFEL J:   How do you say it could be avoided here?

MR GRAHAM:   One, the defendant could have made the diagnosis so that the treatment would have occurred earlier.

KIEFEL J:   It remained the same.

MR GRAHAM:   No, that is not correct.  That falls, with respect, your Honour, into the same trap that occurred in Chappel v Hart.  The focus on the risk is to ignore what happened and the correct comparison between the two points in time.  The correct comparison is whether the harm would have been suffered, not whether the risk would have been run. 

The other aspect of why it was possible is because in every medical procedure or treatment there will be a risk of an adverse outcome.  There must be steps that can be taken and are routinely taken to avoid risks of procedures.  A true inherent risk would be something like a congenital or an anatomical anomaly which means as soon as the surgeon was going to make the incision in an area of body, there was an artery there that you could not have predicted because it was an anatomical inherent aspect of the patient’s anatomy, so that it was going to occur in any event.

In this case, the evidence was of no negligence on the part of the operating surgeons but it also was the evidence that exercise of reasonable care can avoid the micro‑catheter or the balloon rupturing the wall of the aneurysm.  It is not a risk that it is impossible to eradicate and the effect of Justice Leeming’s decision is as the trial judge said, it basically allows for the extinction or for liability to be extinguished if someone proves that the harm can be caused without negligence.  That ignores the particular circumstances of the case. 

Justice Leeming specifically rejected the trial judge’s construction of section 5I as having to apply to the particular circumstances of the case.  He construed the section as being at large, in general, a generic risk.  So, it is open for a defendant in these sort of cases and this applies to obvious risk cases as well because Justice Leeming’s ‑ ‑ ‑

BELL J:   Before we move to obvious risk cases, let us get back to the circumstance that the primary judge, together with each of the members of the Court of Appeal, was against you on 5D and that is a considerable hurdle.

MR GRAHAM:   Yes.  We accept that it is a hurdle but we also accept – we also say, your Honour, as I said at the outset, it is a matter of general importance.  Indeed, Justice Leeming said so at application book 110 that despite what this Court determined in Wallace v Kam which, we say, was on a very narrow issue about there being two – well, you know the facts, your Honour, that the interplay between 5D(1)(a) and 5D(1)(b) still remain to be sorted out by this Court and he also adopted what Justice Windeyer said in an earlier case at application book 117 that there still remains what he described as “conceptual messiness” about that various ‑ ‑ ‑

BELL J:   “Conceptual messiness” is often best clarified by a case that crisply raises the point.

MR GRAHAM:   This case, your Honour, without there being factual disputes and in circumstances where the facts about no change in the increase in risk between the two points in time raises questions as a suitable vehicle just as Chappel v Hart was. I say that, of course it is a “failure to warn” case but it is the policy process of analogous reasoning that is at the heart of section 5D(1)(b) and it remains at the heart of this case as well.

KIEFEL J:   I see the time is up.  Thank you, Mr Graham.  We will not need to trouble you, Mr Kirk.

The respondent was negligent in failing to diagnose, in 2003, that the applicant suffered from an aneurysm in her right cerebral artery.   The condition was diagnosed in 2006.  The applicant suffered injury during the course of treatment for it.  The injuries resulted from a materialisation of a risk inherent in the surgical treatment.  The Court of Appeal held that the defendant was not liable under the Civil Liability Act 2002 (NSW). Because of the provisions of sections 5I and 5D essentially the risk eventuated and was not attributable to the defendant.

The proposed appeal does not enjoy sufficient prospects of success to warrant a grant of special leave.  Special leave is refused with costs.

AT 9.59 AM THE MATTER WAS CONCLUDED