Percival v Rosenberg

[1999] WASCA 31

PERCIVAL -v- ROSENBERG [1999] WASCA 31

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 31
Court:	THE FULL COURT (WA)
Case No:	FUL:176/1997	Heard:	9 JUNE & 27 AUGUST 1998
Coram:	KENNEDY J WALLWORK J OWEN J	Delivered:	25/05/99
No of pages:	31	Judgment Part:	1 of 1
Result:	Appeal allowed.  Retrial ordered limited to issues other than failure to warn.
PDF Version

Parties:	PATRICIA PERCIVAL IAN ROSENBERG
Catchwords:	Negligence Breach of duty Oral and maxillofacial surgeon Failure to warn of material risk in proposed surgery Finding of trial Judge reversed Action remitted for determination of remaining issues in case
Legislation:	Nil
Case References:	Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344. Devries v Australian National Railways Commission (1993) 177 CLR 472. Rogers v Whitaker (1992) 175 CLR 479. Abalos v Australian Postal Commission (1990) 171 CLR 167 Anderson v Bowden, unreported; FCt SCt of WA; Library No 970674; 4 December 1997 Arndt v Smith (1997) 148 DLR (4th) 48 Bank of South Australia v Ferguson (1998) 151 ALR 729 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047 The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997 Bootle v Kettlewell (1993) Aust Torts Rep 81-250 Breen v Williams (1996) 186 CLR 71 Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Chambers v Jobling (1986) 7 NSWLR 1 Chappel v Hart, unreported; CA SCt of NSW; No 40438 of 1994; 24 December 1996 Commonwealth of Australia v Connell (1986) 5 NSWLR 218 Dininis v Kaehne (1982) 29 SASR 118 Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996 Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Fazlic v Milingimbi Community Inc (1980) 32 ALR 437 (FedCt) (1982) 150 CLR 345 (HC) Gibson v Smith, unreported; FCt SCt of WA; Library No 970317; 19 June 1997 Glavonjic v Foster [1979] VR 536 Gould v Vaggelas (1985) 157 CLR 215 Gover v South Australia (1985) 39 SASR 543 H v Royal Alexandra Hospital for Children (1990) Aust Torts Rep 81-000 Hribar v Wells (1995) 64 SASR 129 Jones v Hyde (1989) 85 ALR 23 Jones v The Queen (1989) 166 CLR 409 Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McCann v Parsons (1954) 93 CLR 418 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Newell v Lucas [1964-5] NSWR 1597 Overseas Tankship (UK) Ltd v Miller Steamship Pty Co [1967] 1 AC 617 Palmer v The Queen (1992) 66 ALJR 270 Pateman v Higgin (1957) 97 CLR 521 Plenty v Argus [1975] WAR 155 R v Bateman (1925) 94 LJKB 791 Reibl v Hughes (1981) 114 DLR (3d) 1 Roe v Minister of Health [1954] 2 QB 66 Rowe v Edwards (1934) 51 CLR 351 Scheggia v Fasano [1980] VR 664 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 SS Hontestroom v Owners of SS Sagaporack [1927] AC 37 State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996 Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 1 March 1996 Taylor v Johnson (1983) 151 CLR 422 Thomas v O'Shea (1989) Aust Torts Rep 80-251 Thomas v Van den Yssel (1976) 14 SASR 205 Tzouvelis v Victorian Rail Commissioners [1968] VR 112 Voulis v Kozary (1975) 180 CLR 177 Warren v Coombes (1979) 142 CLR 531 Watts v Rake (1960) 108 CLR 158 Webb v Bloch (1928) 41 CLR 331 Westpac Banking Corporation v Spice (1990) 12 ATPR 41-024 Willcox v Sing [1985] 2 Qd R 66 Wilsher v Essex Area Health Authority [1987] QB 730; [1988] AC 1074

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PERCIVAL -v- ROSENBERG [1999] WASCA 31 CORAM : KENNEDY J

WALLWORK J
OWEN J

HEARD : 9 JUNE & 27 AUGUST 1998 DELIVERED : 25 MAY 1999 FILE NO/S : FUL 176 of 1997 BETWEEN : PATRICIA PERCIVAL

Appellant (Plaintiff)

AND

IAN ROSENBERG
Respondent (Defendant)

Catchwords:

Negligence - Breach of duty - Oral and maxillofacial surgeon - Failure to warn of material risk in proposed surgery - Finding of trial Judge reversed - Action remitted for determination of remaining issues in case

Legislation:

Nil

Result:

Appeal allowed. Retrial ordered limited to issues other than failure to warn.

(Page 2)

Representation:

Counsel:

Appellant (Plaintiff) : Mr E M Heenan QC & Mr P A Monaco
Respondent (Defendant) : Mr D J Martino

Solicitors:

Appellant (Plaintiff) : Godfrey Virtue & Co
Respondent (Defendant) : Clayton Utz

Case(s) referred to in judgment(s):
Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344
Devries v Australian National Railways Commission (1993) 177 CLR 472
Rogers v Whitaker (1992) 175 CLR 479

`
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Anderson v Bowden, unreported; FCt SCt of WA; Library No 970674; 4 December 1997
Arndt v Smith (1997) 148 DLR (4th) 48
Bank of South Australia v Ferguson (1998) 151 ALR 729
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047
The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997
Bootle v Kettlewell (1993) Aust Torts Rep 81-250
Breen v Williams (1996) 186 CLR 71
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Chambers v Jobling (1986) 7 NSWLR 1
Chappel v Hart, unreported; CA SCt of NSW; No 40438 of 1994; 24 December 1996
Commonwealth of Australia v Connell (1986) 5 NSWLR 218
Dininis v Kaehne (1982) 29 SASR 118

(Page 3)

Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996
Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fazlic v Milingimbi Community Inc (1980) 32 ALR 437 (FedCt) (1982) 150 CLR 345 (HC)
Gibson v Smith, unreported; FCt SCt of WA; Library No 970317; 19 June 1997
Glavonjic v Foster [1979] VR 536
Gould v Vaggelas (1985) 157 CLR 215
Gover v South Australia (1985) 39 SASR 543
H v Royal Alexandra Hospital for Children (1990) Aust Torts Rep 81-000
Hribar v Wells (1995) 64 SASR 129
Jones v Hyde (1989) 85 ALR 23
Jones v The Queen (1989) 166 CLR 409
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McCann v Parsons (1954) 93 CLR 418
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newell v Lucas [1964-5] NSWR 1597
Overseas Tankship (UK) Ltd v Miller Steamship Pty Co [1967] 1 AC 617
Palmer v The Queen (1992) 66 ALJR 270
Pateman v Higgin (1957) 97 CLR 521
Plenty v Argus [1975] WAR 155
R v Bateman (1925) 94 LJKB 791
Reibl v Hughes (1981) 114 DLR (3d) 1
Roe v Minister of Health [1954] 2 QB 66
Rowe v Edwards (1934) 51 CLR 351
Scheggia v Fasano [1980] VR 664
Sheen v Fields Pty Ltd (1984) 58 ALJR 93
SS Hontestroom v Owners of SS Sagaporack [1927] AC 37
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996
Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 1 March 1996
Taylor v Johnson (1983) 151 CLR 422
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Thomas v Van den Yssel (1976) 14 SASR 205
Tzouvelis v Victorian Rail Commissioners [1968] VR 112
Voulis v Kozary (1975) 180 CLR 177
Warren v Coombes (1979) 142 CLR 531
Watts v Rake (1960) 108 CLR 158
Webb v Bloch (1928) 41 CLR 331
Westpac Banking Corporation v Spice (1990) 12 ATPR 41-024

(Page 4)

Willcox v Sing [1985] 2 Qd R 66
Wilsher v Essex Area Health Authority [1987] QB 730; [1988] AC 1074

(Page 5)

1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Wallwork J, with which I am generally in agreement. I desire only to add some brief observations.

2 In the leading case of Rogers v Whitaker (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ made the following statements:

"[W]hile evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his own life" (F v R (1983) 33 SASR at 193)." [at 487]

"[E]xcept in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended (Chatterton v Gerson [1981] QB 432 at 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice." [at 489]

"The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it." [at 490]

3 Applying these observations, in my view, the respondent was in breach of his duty to warn the appellant of a risk of TMJ problems developing if the operation proposed by the respondent were to be undertaken. The learned trial Judge was in error in not so finding. It is of significance that the surgery was essentially elective, and that neither the consent form, nor the standard information pamphlet, conveyed any warning of the nature required.

4 The finding of the learned trial Judge that the respondent had not been in breach of his duty to warn the appellant of the risk in this case did not depend upon the credibility of the appellant, in respect of which he

(Page 6)

had formed an adverse view. His Honour's finding that, "even if the [appellant] had been warned of the slight possibility, and certainly it was very slight, of complications she would have proceeded with the surgery in any event", stands in a different category. This finding was made in spite of the appellant maintaining that she would have declined the osteotomy had she been fully and adequately warned of the risk of complications. Senior counsel for the appellant has pointed to a number of factors which indicated that a proper warning would have deterred the appellant from agreeing to the operation. Some of them are as follows. The appellant had prior unsatisfactory experiences of surgery, which had left her apprehensive about outcomes and thorough in her approach to the consideration of other procedures. She undertook slow, deliberate and extensive investigations and preparations leading to her decision to undergo the procedure. The procedure was elective and non-essential, and other options, only slightly less satisfactory, were available. Her evidence was that she was not motivated by concerns to change her cosmetic appearance, but by her desire to prevent the development of jaw problems later. Her entire background and training inclined her to be meticulous and thorough when considering any proposal. The advice she was given was not simply inadequate in failing to warn, but was expressly reassuring in representing that a full return of function would occur within a week or months. With respect, his Honour's consideration of these important aspects was simply dismissive to the extent that any consideration was given to them, although each required careful attention. Any adverse finding on this issue should not have been made, as it appears to have been, essentially on the basis of the credibility of the appellant.

5 The matter should be remitted for retrial in the District Court by another Judge of that court, on the footing that the respondent was in breach of his duty to the appellant to warn her of the risk. It is appreciated that this is inconvenient and unsatisfactory for both parties, but it is, in my view, inevitable in the circumstances of the case.

6 WALLWORK J: The appellant appeals from the dismissal of her claim for damages arising from alleged negligence on the part of the respondent. Because counsel for the appellant has asked the Court to depart from certain findings of fact of the learned trial Judge, it is necessary to set out the details of some of the evidence in the case.

7 The appellant had sued the respondent, an oral and maxillo facial surgeon, arising from a sagittal split osteotomy which she underwent on 6 December 1993. Following that operation the appellant had undergone a

(Page 7)

further procedure which was carried out by the respondent on 25 February 1994 in an effort to mobilise the appellant's temporomandibular joints.

8 The appellant had claimed that primarily as a result of the operation, her life had been badly affected due to pain and other maladies which she had suffered since the operation. She claimed amongst other things that the respondent had not warned her of all the possible complications which could arise from the surgery.

9 Due to an underdeveloped jaw, before the operation the appellant did not have proper occlusion. The operation was undertaken to prevent any future damage which might otherwise be caused to the appellant's temporomandibular joints.

10 Before the operation was carried out, the appellant was advised by the respondent that after the operation she could expect to have a certain degree of pain and some area of anaesthesia affecting the lower lip and possibly the tongue and face. She was advised that there was a risk involved which was related to her undergoing the general anaesthesia. She claimed that she was advised that she would suffer maximum inconvenience for a period of approximately two to three weeks after surgery with a complete return to normal function after some weeks or months.

11 About three weeks after the operation and after the restraints had been removed which had been immobilising her upper and lower jaws, the appellant claimed that she had suffered intermittent sharp grating pains in the regions of both temporomandibular joints. She was unable to masticate.

12 In February 1994, an examination revealed that both condyles were severely hypoplastic and there was dysplasia on the right. The right condyle was osteoporotic. The left hypoplastic condyle was severely retruded indicative of an anteriorly displaced disc. There were signs of degenerative arthritis. The joint on the right side was narrowed on both sides and movement was severely restricted. The respondent then suggested that the appellant undergo an active mobilisation of the temporomandibular joints under general anaesthetic. The appellant claimed that again she was not alerted to any risks or possible complications and that relying on the defendant's assurances and expertise she had submitted to the proposed procedure.

13 Following that procedure the appellant claimed that she had suffered excruciating pain which had been exacerbated whenever she attempted to

(Page 8)

open her mouth. She later underwent further treatment. Eventually the respondent had indicated that he had no further treatment to suggest which would improve her condition.

14 The appellant had then undergone other treatment but continued to suffer residual symptoms including intermittent painful areas surrounding her temporomandibular joints, difficulty in opening her mouth in the morning, gross restriction in her eating ability and difficulties with speaking. She claimed that she had suffered an acute post-traumatic emotional reaction which had led to depression, frustration, irritability, despair, anxiety, insecurity and uncertainty. She claimed that she had lost the normal enjoyment of life in a whole range of sporting, recreational and social activities. She had difficulties with eating and was embarrassed at spilling foods and liquids when eating or drinking. She claimed that various types of movements exacerbated the pain.

15 The appellant claimed that the respondent had been negligent in that prior to the operation he had ignored, disregarded and failed to take note of the minor complaints which she had related in regard to her pre-operative condition. There were other particulars of negligence which I will not detail at this time, but amongst them was an allegation that the respondent had failed to alert and warn her of the risks of the surgery and in particular against the complications which subsequently ensued. It was alleged that had the appellant been alerted to the risks involved in the surgery and the manipulation of her joints after the surgery, she would not have consented to either of the procedures. It was claimed that there had not been "informed consent" on her part.

16 The appellant has a number of qualifications including the degree of PhD. After obtaining that qualification she had obtained a teaching post at Edith Cowan University. She claimed that due to the complications following her operation, she had had to speak softly and also to space out her lectures. She had had to obtain help from assistants. Ultimately her contract had been terminated.

17 In his defence the respondent pleaded that prior to the operation, the appellant's back teeth had met, but the front teeth had not. The back teeth on the right-hand side were being damaged. The respondent admitted that he had known that the appellant had experienced muscle ache along the jawline, but he denied that he was aware, or had been made aware, that her jaw had locked on a previous occasion.

(Page 9)

18 The respondent said that his pre-operative examination had indicated that there was some clicking of the left temporomandibular joint. He had advised surgery in an attempt to rectify the appellant's malocclusion and said that he had given a detailed explanation to the appellant of the proposed surgery. He denied that he had been notified that the appellant had suffered sharp grating pains in the region of both temporomandibular joints after the restraints had been removed as alleged by the appellant. He denied that his treatment of the appellant had been carried out without the proper consent of the appellant or that there had been any negligence on his part.

19 Concerning the alleged lack of warning given to the appellant, the appellant explained at the trial that before her operation she had picked up an Orthognathic Surgery Information pamphlet at the respondent's surgery whilst she had been waiting for an appointment with the respondent. She said someone had left it behind. It was in the waiting room. She had picked it up and kept it. She said she had not had a discussion with the respondent about that document.

20 The appellant said that before the operation she had had no problems with her temporomandibular joints apart from one incident of locking which she had mentioned to Dr Mezger, an orthodontist, and the respondent.

21 At the time of the trial the appellant was on sick leave. She said she had been unable to cope with her work at the University. She had a position as an untenured senior lecturer at the University but she had not been able to carry out her duties. She said she had tried desperately to continue teaching but the pattern had been one of slow deterioration. During the previous year her post-graduate supervision job had been taken away from her. This had been one of the most humiliating experiences of her life. She said her contract had been terminated at the end of the year, whereas in the past it had always been rolled over. She did not have tenure. She did not want to be too negative but she did not think she could get another job. She could make her own bed but the washing and ironing and all that type of work at home was done by a cleaning lady. Her husband did most of the preparation of the meals. She had had to let her garden go, which she had looked after before the operation. She did not like to drive because she took so many painkillers.

22 The appellant denied that on 6 February 1993, before the operation in December 1993 the respondent's nurse had handed her the Orthognathic

(Page 10)

Surgery Information pamphlet. She said she was absolutely 100 per cent sure that she was not given it.

23 In cross-examination the appellant said: "When I asked him [the respondent] if it could cause a worsening of the symptoms, he said no." (My words in brackets).

24 At the close of his reasons for judgment the learned trial Judge said:

"...it very rapidly became apparent that the plaintiff was most anxious to tell the story in a way in which she thought would benefit her case and to play down anything that she thought might be to the contrary and at the end of the cross-examination I can only say that this view was reinforced and I was far from satisfied that the plaintiff was a reliable witness. This impression was gained after examining the plaintiff for quite a long time when she was in the witness box in examination-in-chief and re-examination over a period of some days and there were particular instances where I considered her evidence to be unreliable and this has actually been later confirmed having seen and heard witnesses who have given evidence concerning particular aspects of Dr Percival's evidence which will be referred to later in the judgment.

In his reasons for judgment the learned trial Judge referred to Professor Goss' report of 2 February 1996 in which the Professor had said:

"However, there is a risk of TM joint problems from orthognathic surgery and given that the problem did eventuate then under the current informed consent conditions, Dr Rosenberg should have mentioned the risk."

25 Concerning problems after orthognathic surgery, the Professor said:

"However, some individuals do have problems. The general incidence of minor changes would certainly be less than 10 per cent, and the incidence of problems similar to Dr Percival's is considerably less. There are no accurate figures of this but certainly it would be one amongst many hundreds of thousands."

26 The Professor said that the appellant had suffered a severe negative outcome. When asked whether he had seen similar outcomes in comparable surgery, the Professor said:
(Page 11)

"In comparable circumstances, namely a patient who has a mild degree of temporomandibular joint disorder, who has a facial osteotomy and ends up with severe temporomandibular joint problems, I have seen two in the last decade, and with Dr Percival that makes three."

27 When asked further about the risks the Professor said:

"On that basis if you take three out of 20,000 then you end up, I guess, with an incidence of one in six thousand. So I think one can confidently say that the incidence of this problem was certainly measured in one in thousands and my best guess is somewhere between one in two and a half and one in six."

28 Another witness, Dr Punnia-Moorthy, who was then a full-time senior lecturer consultant in oral and maxillo facial surgery at the University of Sydney, and had been for the past ten years, said in a report of 10 October 1995:

"However, in older individuals with reduced tissue adaptive capabilities and in the presence of pre-existing (sic) joint abnormalities, trauma to joint structures and alteration of condylar positions could lead to significant TMJ problems. I feel that the TMJ factor in this case is due to a combination of these factors. In my view it is prudent to warn the patient of likely TMJ problems in the presence of clicking and condylar abnormalities prior to jaw surgery, such as sagittal split osteotomy of the mandible."

29 When asked what he would have told the appellant had he been treating her in late 1993 and contemplating a sagittal osteotomy for a malocclusion, Dr Punnia-Moorthy said:

"The standard complications of nerve damage, a relapse, possibility of infection. In her case I think I would have warned her about possible complications of the temporomandibular joint as well."

When asked why that was, he said: "Because you cannot be certain what the outcome will be."

30 In cross-examination Dr Punnia-Moorthy said:

"The level of explanation, I suppose, is what I am trying to get at. I gave an example of a 17 year old with a minor clicking of

(Page 12)

the joint and a, say, 43 year old with a previous history of musculoskeletal disorder, x-ray showing some changes, got clicking and pain like that; obviously, in that individual, if that person is asking for surgery or coming for surgery, one would spend more time explaining what can go wrong with the joint."

31 I note that the appellant was 43 years of age at the time of the operation.

32 Dr Jackson, a consultant radiologist, gave evidence concerning the pre-operation (November 1993) x-rays. He said:

"May I preface this by saying that the OPG x-ray is not specific for TMJ problems, but they do give a hint if there is some derangement there, and these certainly do. They warrant a follow-up and proper temporomandibular x-rays...The indications there are the symmetry of the condylar heads, which is abnormal, but you can't really go beyond that."

33 Dr Jackson said that the appropriate follow-up would be local tomograms which he had performed on two occasions in the following year. The first was in February 1994. They revealed a disease in both sides of the joints."...On the left side I said the condyle was hypoplastic which means that it was underdeveloped. I also said there was retrusion of the condyle in the mandibular fossa which itself is highly suspicious of a displaced disc, cartilage."

34 The learned trial Judge noted that in answer to a question from himself, Dr Jackson had said that the problems with the plaintiff's mouth had been developing over many years.

35 Dr Jackson was asked when, from the various x-rays that he had seen, an informed observer would have first noticed signs of disc displacement in the appellant. Dr Jackson said:

"Usually the patient would notice clicking. The clicking may be painful or may not be painful. It frequently is painful. If it is untreated at that stage it frequently becomes displaced anteriorly where it does not reduce. Then she complains of 'I can't open my mouth fully, I can't bite on an apple, I can't get it open wide enough for that sort of procedure'. Then the disc is permanently displaced anteriorly at that stage."

(Page 13)

36 Dr Jackson said that all one could determine from the 1993 OPGs is that there was something abnormal about the temporomandibular joints. He said: "It is not a very good indicator of temporomandibular joint pathology per se but you get a feeling or understanding there is something wrong that needs or should have follow-up."

37 Dr Delcanho, a dental surgeon with a Master of Science degree in oral biology and a post-graduate certificate in orofacial pain and dysfunction, in one of his reports which the learned trial Judge referred to, said that: "Furthermore, in view of the likely pre-existing TMD, it is my opinion that the possible consequences of orthognathic surgery, that is aggravating a pre-existing TMD should have been discussed with your client and a signed informed consent obtained."

38 Dr Delcanho was asked by the respondent's counsel: "What do you say the client should have been informed of?" Dr Delcanho answered:

"That she had some signs of a TMD - temporomandibular disorder and that her undergoing surgery could have a deleterious effect upon those jaw structures...It would worsen it...It could worsen the symptoms that she was already - she had already had in the past and worsen the signs that were found at the examination. She already had a clicking joint and she had restricted opening ability etc."

39 Dr Williamson, a specialist in maxillofacial surgery, gave evidence that an examination of the x-rays or OPGs showed a similar appearance to the pre and post OPGs which he said would be expected, as they were only taken a number of months apart and he considered the appearance of the condylar head showed some sort of arthritic change both pre and post-operatively.

40 Dr Williamson in the course of his evidence-in-chief was referred to Chapter 19 of a book which he described as the bible for our orthognatic surgery and was asked: "Are there passages in this which highlight the risk, small though it may be, of adverse effects of sagittal split osteotomy?" Dr Williamson answered: "There are, but it does say that the literature is divided in its opinion." Dr Williamson was then referred to page 662 under the heading of "Relationship of Malocclusion to TMG Joint Pain Dysfunction" and also page 684 where there was a paragraph entitled "TM Joint Problems Related to Surgical - Orthodontic Treatment." He was also referred to page 685 of that literature. That was tendered in evidence and was exhibit 38.

(Page 14)

41 Counsel for the appellant at the trial, produced reports from Professor Lavant and Professor Reade, being exhibits 39 and 40 respectively.

42 His Honour noted that in Professor Lavant's report of 18 September 1996 he was of the opinion that the plaintiff should have been warned of what he referred to as "additional risks" to the jaw joints. His Honour noted that the Professor had said that joint surgery was outside his field and that he had suggested a more useful contribution could be made by Professor Reade.

43 His Honour referred to Professor Reade's reports which were three in number and said:

"...as you would expect in the circumstances, very proper and very conservative, but without hearing the Professor give evidence-in-chief and/or cross-examination, his evidence does not assist me in the conclusions I have to arrive at."

44 On appeal, counsel for the appellant pointed out that Professor Goss had described Professor Reade as follows:

"Professor Reade is now essentially retired from public life although he is in private practice. His official position I guess would be Emeritus Professor in Oral Medicine. It should be noted that although Professor Reade headed the Department of Oral Surgery he was more physicianly than surgical...that was in Melbourne, yes."

45 Professor Goss had been asked whether Professor Reade had enjoyed a high reputation. His answer was "Yes, indeed". Professor Goss also said that Dr Lavant was "the Associate Professor responsible for directing oral and maxillofacial surgery training in the public facility in Melbourne and thus he holds a similar position in Victoria to that which I hold in South Australia."

46 In his report dated 8 October 1996 which was admitted into evidence, Professor Reade had said:

"It is well recognised that a pain-dysfunction disorder can be worsened by procedures that acutely overload disturbed (sprained) jaw joints. Events such as long dental appointments, general anaesthetics, surgical procedures on the jaws and accidental trauma to the jaws can acutely overload jaw joints

(Page 15)

and can cause a sprain/strain or worsen a pre-existing joint disorder. In summary I would have said that your client was suffering from temporomandibular pain-dysfunction disorder when she sought advice regarding management. Surgical and orthodontic procedures were undertaken, but the pain-dysfunction disorder was considerably worsened."

47 On the appeal, amongst other things, counsel for the appellant complained, that apart from not giving adequate reasons for not accepting the very expert evidence which the appellant had called at the trial, the learned trial Judge had wrongly assessed the evidence of the appellant.

48 In his reasons for judgment the learned Judge, when discussing a claim by the appellant concerning the restoration of her garden which had become hopelessly overgrown, said:

"But in any event I find that the plaintiff and her husband have deliberately allowed this garden to deteriorate to the extent that it has for the purpose of this trial and no compensation for the resurrection of the garden should be allowed."

49 Counsel for the appellant complained that that proposition had not been put or cross-examined on at the trial. In fact the learned Judge had noted in his reasons that the appellant's husband had not been subject to any cross-examination.

50 In the respondent's evidence at the trial, he said that when he had first examined the plaintiff, he had found light clicking in the left temporomandibular joint. He also said: "She did mention to me that she does - whilst I was examining the muscles, I think she mentioned to me, she mentioned that she did have achiness of the muscles on occasion." The respondent said that after he had viewed the usual ordinary x-rays there was no real problem with the appellant's joints and he had not considered the click as pathological.

51 The learned trial Judge noted that to the direct question "Did you warn Dr Percival before she underwent the operation that she might develop temporomandibular joint problems as a result of the osteotomy?", the respondent had replied: "I did not." In answer to the question: "Why not?", he had replied as follows:

"Well, when she came to me at the time, she was referred for the treatment of malocclusion not treatment of the temporomandibular joints. Dr Percival herself did not alert me

(Page 16)

or tell me about problems related to the joints either in my history sheet nor in our discussions and my clinical findings, which are routine, of the joints did not alert me to the fact that these joints were pathological other than that they had hypoplastic condyles. So it did not occur to me that I should go into a detailed discussion of possible joint problems in that context."

52 His Honour noted that when asked about lock-jaw, the respondent had replied: "If a patient mentions - what is jaw-lock a sign of - jaw-lock is - usually it's a sign of an anterior dislocated disc which is not reducible. That's specifically jaw-lock. Limitation of movement does have other reasons." When asked what one episode of jaw-lock indicates the respondent had said: "To me it would mean nothing really. I don't feel that's a sign of pathology within the joint."

53 The respondent said that the explanatory document, exhibit 4, had been given to the appellant by his nurse. He said it was the practice that the nurse would give it to the patient and that had happened at the examination appointment. He was then present. He said he could remember the pamphlet being given to the appellant. The respondent said that he had told the plaintiff that it was an information pamphlet and that she should study it very well and subsequently ask him any questions at the surgery discussion appointment. When asked if he remembered saying that to the appellant he said: "I say it to all patients, every patient." When asked did he remember saying it to this patient, the respondent said: "I said it to this patient." When asked if he had a recollection of that in his mind, the respondent said: "I have a recollection in my mind."

54 The learned Judge said that under cross-examination the respondent had said that prior to the operation of 1993, nobody had discussed with him any temporomandibular problems. He had agreed that he had not warned the appellant of any problems developing, for the reason that his examination had not shown that any problems did exist, or would exist as a result of the operation. The respondent did not consider in the circumstances and following his normal practice, that he should have warned all concerned.

55 The respondent said in evidence that before the osteotomy, he had known that the plaintiff had a hypoplastic condition of both condyles. He said there had been a suspicion of osteoporosis in one of the condyles which was not a contra-indication to surgery: "I would not have suspected and do not agree that there was osteoarthritis or osteoporosis in those

(Page 17)

joints even though we have discussed the MRI". He said he had not suspected osteoporosis. He was asked: "And the fact of the matter is that you believe that the symptoms of temporomandibular disorder identified in Dr Percival prior to the surgery were minor and insignificant?" He answered: "Yes".

56 The respondent said that something must have changed after the operation, "and what would have changed is there might have been some alteration in the position of the condyle which now had overcome her adaptive ability to control, but her joints pre-operatively were joints that had adapted and did not alert me to pathology". Something had happened between November 1993 and May 1994 to cause the appellant's TMJ disorder to become severely symptomatic, painful and restrictive. When asked: "Now it is the case, isn't it, that bilateral sagittal osteotomy and/or manipulation under general anaesthesia with arthrocentesis can cause a deterioration of a quiescent TMJ disorder?" The respondent said: "Yes, that's possible". The respondent went on to say: "Again I would correct. The manipulation and arthrocentesis, that is a minimally invasive procedure." He was then asked: "You knew that at least the sagittal osteotomy had the potential to produce such a result before November 1993?". The respondent answered: "Yes, that can result." He was then asked: "And in fact it is well documented that it can result?" He answered: "Yes." The respondent said that if Dr Goss' figures were taken, the chances of the procedure causing a deterioration were one in two and a half thousand who would present with such severe symptoms afterwards. He said his knowledge was that "Yes, there can be symptoms and problems after an osteotomy of five per cent or less", but he had not told the appellant of that.

57 In his evidence at the trial the respondent accepted that there was an ethical standard in dentistry to explain to a patient the risks associated with surgical or other therapeutic procedures. He agreed that TMJ was always a potential for concern and that an oral maxillofacial surgeon would be able to assess subtle signs of a TMJ disorder for patients. However, he said that the appellant did not present as, or complain of, a TMJ problem. Nonetheless he had detected signs of what he took to be a minor TMJ disorder.

58 The respondent accepted that in Dr Delcanho's clinical list of features of temporomandibular disorders, pain or tenderness in the muscles of mastication was one symptom, and that the appellant had related such a history to him. He accepted that limitation of jaw movement was important, but in the appellant's case he said that that had been due to

(Page 18)

hypoplastic problems throughout the joint, not just the condyles. He said that he did not believe the limitation of jaw movement in the appellant's case was significant. He did not believe the clicking was significant. He said that the pain in the muscles of mastication might have no bearing on the joints whatsoever. He denied that a picture of TMD had been presented in her case. He said he had not been alerted to the fact that anybody else had noted signs of temporomandibular joint disorder. They had not communicated that to him.

59 The respondent agreed that neither the explanatory memoranda, nor the consent form which he said had been given to the appellant, had contained any warning that the bilateral sagittal osteotomy might activate a quiescent TMJ joint.

60 The learned trial Judge found that the respondent's evidence had been entirely in contrast to that of the appellant. His Honour said:

"I have already made observations about the plaintiff's evidence and have no hesitation in saying that I accept the defendant's evidence totally and in particular, wherever it conflicts with the plaintiff's evidence, I have no hesitation in accepting the defendant's evidence thereon."

61 The respondent's nurse Miss Jeffries, said that she could not say that she actually remembered physically giving the relevant information sheet to the appellant, but there would be no reason why she would not have done so, because it was the actual routine for the respondent. The sheets were right there sitting in front of them. The sheets were taken out for the proposed surgery for the patient when they came into the room. It was put to her that the appellant had denied being given the explanatory memorandum. Miss Jeffries said: "I can't say I have a picture in my mind of my physically giving her the information sheet but I am confident in my capability that I would not miss out something as important as that because that was my job and I am very conscientious in my work."

62 The learned trial Judge held that Miss Jeffries' evidence was frank and open and that it was patently apparent that she had been telling the truth. His Honour accepted her evidence which he said, completely supported that of the respondent on that issue.

63 Professor Norman, the Clinical Professor at the University of Sydney and the departmental head of maxillofacial surgery at St George's Hospital gave evidence. He was an author of a text book on the temporomandibular joint which was used throughout Australasia.

(Page 19)

64 Professor Norman said in evidence that in his opinion the respondent had not needed to go any further in warning the appellant of anything extra because as far as he could see on the evidence there was nothing the respondent had to warn the appellant of. The Professor said that he believed that prior to the surgery, the appellant might have had minimal symptoms of temporomandibular joint disorder according to the notes and reports that he had been allowed to read, but not of a major nature. He said those indications had been minor clicking and discomfort. He referred to a reported single episode of "perhaps almost locking but not quite locking." He said that if the symptoms were minor or trivial he did not believe that any further investigation was required and certainly it was not his practice to prosecute any further investigation at that time. He said that a scan had been carried out at Royal Perth Hospital which had shown that the appellant was not osteoporotic. He also said he did not believe that there was any evidence in the notes he had been given that the appellant had osteoarthritis. He believed that the appellant's principal problem was an eluxating or dislocating disc or cartilage which she had accommodated with the jaw in the retruder position, but when the jaw was placed in a good position with a balanced bite and good meshing of the teeth, that tipped the scales and she could no longer return the cartilage to its normal position. He said he believed the root cause was the underdeveloped or hypoplastic mandible. He said he preferred the term underdeveloped and that, concordant with the smaller jaw was a smaller condyle. He accepted that before surgery in November 1993 the appellant had a small mandible and an adaptive quiescent disorder in the temporomandibular joint. It was put to him that in the appellant's history of an occasional clicking of a minor nature, some aching in the masticatory muscles, an inability to open the jaw fully to bite on, for example, an apple, and on the appellant's evidence one episode of jaw fixation or jaw locking and that collectively those symptoms were suggestive of a temporo mandible joint disorder. He said:

"I could only say that one sparrow doesn't make a summer and trivial symptoms of that nature don't add up to an internal derangement in my not inextensive experience."

65 Professor Norman said that the symptoms were trivial and did not point to an internal mechanical derangement. He said there had been no reason for the defendant to believe that the plaintiff had an internal derangement. The symptoms were of a trivial nature.

66 Professor Norman said that he would have done as the respondent had done and arranged the radiographs which he had arranged. He said

(Page 20)

that in this case there had been an x-ray report which said that the mandible and the TMJs were normal, signed by a consultant radiologist from a first class practice.

67 Professor Norman agreed that there were a series of risks of poor outcomes or complications associated with bilateral sagittal osteotomy of the jaw. He said there was always a risk that in pushing the ramus fragment, the fragment containing the ball of the joint, into the socket with fairly firm pressure, that it is possible to further displace a disc that is already tenuous and already eluxating but reducing. He said it was not common but it was possible. When asked whether in conducting this form of surgery, there might be a small risk that there would be some disruption or derangement of the temporomandibular joint, the Professor said:

"This is possible, and the converse that the function of the cartilage may very well be improved, probably in most cases is as a consequence of putting the jaw in a better position and the teeth in a better position, so that the teeth are meshing and the load is distributed."

When asked about warning of the risk Professor Norman said:

"It has never been, and certainly wasn't in 1993, my practice so to warn if there was no salient feature of temporomandibular joint disturbance or internal derangement such as severe pain, long history of clicking, repeated locking, joint crepitus."

He was then asked "So you would not have done it?". His answer was "No, I wouldn't and didn't, and neither did my co-workers."

68 The learned trial Judge concluded that in no way could it be suggested from the Professor's evidence-in-chief that he thought that the respondent should have advised the appellant any further than he did in all the circumstances. With respect to the cross-examination his Honour considered that this only strengthened the impression he had of the Professor as a very professional surgeon and very frank witness. All in all his Honour considered that the cross-examination had only reinforced the evidence that the Professor had given in chief.

69 Dr McNamara, who is a prosthodontist and who had a doctorate in temporomandibular disorders, treated the appellant on referral from the respondent. He gave evidence that he supported the respondent's procedures. He would not agree that on the x-rays the condyles were osteoporotic. He could not see any basis for Dr Jackson offering that

(Page 21)

opinion. He agreed that the left condyle appeared to be retruded. When he was asked if he accepted that the condyle was retruded, he said "That's what - the thing that I am not accepting." He agreed that a quiescent TMJ dysfunction involving an internal displacement can be aggravated by anything - by biting an apple. He agreed that there had been a pre-existing condition, but said the biggest thing for the appellant had been that there had not been enough aggressive post-surgical treatment. It had not been aggressive enough and it had been "non-compliant".

70 His Honour came to the conclusion that from Dr McNamara's evidence it was quite obvious that he was perfectly satisfied with the operation and procedures carried out by the respondent.

71 Dr Lazar, a registered specialist prosthodontist since 1988 and a senior lecturer at the WA Dental School said that prior to the operation, the appellant had given a history to him which indicated she had had TMJ problems in the past (being in the order of 15 to 20 years prior), and that these TMJ problems "were treated, under control, and really not an issue, or non-existent at the time of my examination or the time of my history taking". When asked how he would describe the appellant's TMJ condition from the symptoms reported, he said he would say that there were no TMJ problems at all, or at worst, they had adapted to her condition. They had adapted to the appellant's bite and they had improved from the previous problems of her TMJ. Dr Lazar said the appellant might have been prone to TMJ problems but he did not believe that at the time he had examined her she was having any TMJ problems. He agreed that Dr Metzger had written to him saying: "As you are aware she has some TMJ problems and I believe you are treating these." However he said "I don't agree with that. There was no basis why he said that. He just made a statement." When referred to a text which said that "The chance that TMJ joint pain dysfunction can arise as a result of surgical orthodontic treatment is always of concern", Dr Lazar said he did not agree with that: "When I say that, I mean in my experience of the patients I have seen and treated, no other patient having surgical orthodontic treatment has undergone TMJ problems of any magnitude."

72 His Honour accepted Dr Lazar's evidence. His Honour said that Dr Lazar had confirmed that none of the doctors, Dr Mezger, Dr Rosenberg or himself had considered that there was any TMJ problem prior to the first operation which had been conducted by the defendant because the evidence before them did not disclose it.

(Page 22)

73 Concerning the obligation to warn, his Honour referred to the High Court decision of Rogers v Whitaker (1992) 175 CLR 479 at 489 where, when referring to the consent to treatment, their Honours said:

"The choice is in reality meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession."

74 His Honour referred to their Honours' discussion at 491 where it is said:

"But it could be argued within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient's position would be likely to attach significance to the risk, and thus required a warning."

75 In this case the learned Judge found that the appellant had not been referred to the respondent by any of the specialists for any temporomandibular problem, nor had any of them considered that she had any temporomandibular problem. Further that the appellant did not mention any temporomandibular problem or any concern about one to the respondent (apart from what he agreed she did tell him) "despite what she may have said in evidence to the contrary".

76 His Honour found that the appellant had been supplied with "the requisite information sheets" before surgery and at the time was advised to ask any questions concerning the same. He found that the respondent had done everything that was proper in the circumstances and that the x-rays had disclosed no abnormalities other than that "the condyles were small". His Honour concluded that all the evidence of the specialists who had examined the appellant before the operation agreed with the respondent's conclusions, as did those of Professor Norman whose evidence his Honour accepted unreservedly.

77 His Honour found that there was on the evidence no material risk, "not only that the defendant could see but any of the other specialists who saw the plaintiff before the operation". He did not accept the evidence of Professor Goss "in one aspect where he considered that a warning should

(Page 23)

have been given in the circumstances as he saw them". His Honour found that none of the other specialists who had seen the appellant and examined the x-rays before the operation had come to a conclusion that there was, or could be, any temporomandibular problem. The operation had dealt with the problem with the appellant's jaw and was not concerned with a temporomandibular problem. His Honour concluded:

"It follows that in the circumstances the defendant, prior to the operation, was not negligent in his interpretation of any of the plaintiff's complaints following a thorough examination, or of his interpretation of the x-rays and therefore it follows that there was no known problem to him that could develop that he could communicate to the plaintiff. It follows that he was not negligent in not warning the plaintiff of any material problem that might develop."

78 His Honour also found that he was quite satisfied in the circumstances that even if the appellant had been warned of the very slight possibility of complications, she would have proceeded with the surgery in any event.

79 It can be seen from an analysis of his Honour's reasons, that from a finding that neither the respondent or the other specialists who saw the appellant before the operation "came to a conclusion that there was or could be any temporomandibular problem", the learned Judge concluded that on the evidence there was "no material risk" "to use the words of Rogers v Whitaker". His Honour also concluded that the case "was very rare indeed." His Honour was also influenced by the fact that the operation had been for a problem with the appellant's jaw "and was not concerned with a temporomandibular problem." His Honour concluded "that there was no known problem to him that could develop that he could communicate to the plaintiff."

80 In my view and with due respect to his Honour, he applied the wrong test.

81 In Chappel v Hart (1998) 72 ALJR 1344 at 1355 Gummow J said:

"This Court decided in Rogers v Whitaker that a medical practitioner has a duty to warn a patient of a material risk inherent in a proposed procedural treatment and that 'a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical

(Page 24)

practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it'."

82 Dr Punnia-Moorthy had said in evidence when discussing the risks which were known in 1993 of undergoing sagittal osteotomy for the correction of a malocclusion:

"The possibility of joint problems. That can happen in an asymptomatic case who never had joint problems before, although the incidence of that is probably about less than 10 per cent."

83 Dr Williamson said:

"Complications may include an exacerbation of the condition if it is already present, if it has been picked up as far as pre-operative examination is concerned. There may be asymptomatic problems. You mentioned clicking earlier which may have no other clinical symptoms, and that then may be exacerbated by the procedure."

84 Dr Williamson was asked: "So in the presence of clinical signs of some kind of TMJ disorder would you expect an oral and maxillofacial surgeon to appreciate that there were some risks of poor outcomes of proceeding with a sagittal split osteotomy?" The answer was: "An oral and maxillofacial surgeon should be aware of that, the risk being small." Dr Williamson went on to say in answer to a question whether there were any contemporary published accounts in textbooks or the literature pointing out that risk:

"There were a number of publications when I did my search in 93 and 1990, for example, and a number in 1994...I guess to use an euphemism, the bible for our orthognathic surgery would be Bell Proffit and White. They were first published in 1980. There is a 1991 edition specifically for orthodontists and it does have a chapter devoted to TMJ problems associated with orthognathic surgery."

85 The respondent had agreed in evidence that the operation could cause a deterioration of a quiescent TMJ disorder and that he had known that before November 1993. He was asked: "And in fact it is well documented that it can result?" He said "Yes". When asked to assess the risk he said: "If you want to take Dr Goss' figures, it was one in two thousand, one in
(Page 25)

two and a half thousand, that would present with such severe symptoms afterwards." He went on to say: "My knowledge is that yes, there can be symptoms and problems after an osteotomy and five per cent is ... five per cent or less." The respondent said that he had never told the appellant of that.

86 Dr McNamara, when asked whether he accepted that patients who have internal derangement of their TMD joints where it is quiescent, can have that condition aggravated by dental surgery, such as a bilateral sagittal osteotomy said: "Yes, or by extracting a wisdom tooth, doing fillings, anything.

87 Professor Goss said in one of his reports:

"However, there is a risk of TM joint problems from orthognathic surgery and given that the problem did eventuate then under the current informed consent conditions Dr Rosenberg should have mentioned the risk."

88 In his 1994 article Dr Delcanho said:

"Seemingly in the 1990s, simple recognition of overt TMD signs and symptoms in patients complaining of jaw pain is not the only problem, rather dentists must also be able to assess subtle signs of a TMD in patients presenting for routine dental work who may be unaware of those signs. Such a subtle non-painful sub-clinical TMD could possibly be aggravated due to trauma to jaw structures that may occur in routine dental treatment procedures."

89 On another page of that article Dr Delcanho said:

"The screening examination on this group picks up the 'quiet' TMD signs of which the patient is unaware. Although these patients have no pain and are currently adapting to any dysfunction, an incipient disorder exists and so they represent an 'unknown risk' group. Dental treatment for these patients may have either beneficial or aggravating effects and therefore carries some risk of elevating the subclinical signs to clinically symptomatic status."

90 Dr Delcanho concluded his article by saying:
(Page 26)

"The recognition of TMD is now considered a professional responsibility on the part of the practising dentist and requires looking beyond morphological relationships of the teeth and jaws. Every patient should undergo a simple screening process to differentiate the completely healthy patient from the patient with one or more signs of a TMD. Of medico-legal importance in such cases is the documentation of baseline parameters of the patient's jaw functional status and the obtaining of informed consent before embarking on any dental treatment. This is of special significance where complex treatment plans involving occlusal relationships are envisaged. The predictability of extensive restorative orthodontic or surgical treatment often rests upon the stability of the jaw position which itself is highly affected by the presence of TMD."

91 Exhibit 38 from the textbook Tucker & Proffit which was published in 1991 has considerable reference to this problem and in the article at 684 it is said:

"This means that there is some chance a patient who had no problems before treatment will develop them post-surgically, quite independently of his or her surgical-orthodontic treatment."

In the second column on the same page it is said:

"Several factors related to surgical correction of dentofacial deformities can be associated with postoperative TM joint pain. Limitation of motion postsurgically is observed at least transiently in all patients who have mandibular ramus surgery and in a significant number long-term. Immobilisation of the jaws during healing is a major contributor to postsurgical limitation of movement and may contribute to other effects as well. The effect of immobilisation through the use of maxillomandibular fixation and the associated need for post-operative physical rehabilitation to restore normal function after orthognathic surgery has been described. Prolonged muscle immobilisation may be responsible for short-term functional problems and may actually have significant long-term implications. In addition, jaw immobilisation can produce degenerative changes within TM joints."

92 Finally at 686 the authors say:
(Page 27)

"The final occlusal result can predispose to TM joint pain/dysfunction problems. In this regard the significant factors are not different from what would be looked for in untreated patients: interferences that produce a lateral shift on closure, balancing interferences in lateral function, or a locked occlusion anteriorly, forcing the mandible distally in function. In the absence of postsurgical orthodontics, such imperfections in the occlusion are likely to be present. A major goal of the post-surgical state is to eliminate them. The best indicator of the success with which this can be done is the low incidence of post-treatment TM joint problems, less than 5 per cent in current reports."

See also the references at 662 and 663 of the same chapter.

93 In my view the submission of the appellant's counsel that the preponderance of the evidence was that there was some risk of complications developing due to TMJ problems was correct. His submission was that the appellant should have been given a warning because there was a known risk and also because the appellant had a history of minor TMJ problems which had revealed a risk of aggravation of them.

94 In the reasons for judgment in Chappel, Kirby J said that the complication in that case was "very rare indeed". It had not occurred in the 100 to 150 operations performed by a Professor who had given evidence. However it was a recognised possibility. It was said that the injury in that case was such an extremely rare occurrence that it was not even mentioned in some clinical textbooks.

95 In the present case the relevant risk was known to the respondent and to the other expert witnesses.

96 At 30 of the judgment in Chappel, Kirby J said:

"However, the requirement to warn patients about the risks of medical procedures is an important one conducive to respect for the integrity of the patient and better health care. In Australia it is a rigorous legal obligation. Its rigour is not challenged in this appeal. It must be accepted that, by establishing the requirement to warn patients of a risk to which they would be likely to attach significance, or of which they should reasonably be aware, the law intends that its obligations be carefully observed. Breaches must be treated seriously."

(Page 28)

97 The question of the risk in this case was not dependent on it being known to the operating surgeon or the other experts concerned that there were pre-operative signs of a TMD disorder. On the overwhelming evidence it was a risk which existed because of the likelihood of some patients having complications after the operative procedure. Once there is a risk which is generally known to the profession, there is a duty to warn. It was not necessary to establish that the respondent should have been alerted to any disorder which existed in the appellant's jaw joint.

98 It was put for the respondent that although the appellant had been given the pamphlet and had received a letter from the respondent, she had not raised any matters which had resulted in the respondent warning her of possible complications. That has been held in Rogers v Whitaker not to be determinative of the relevant question.

99 Applying the law as discussed in Chappel (supra) and Rogers v Whitaker (supra), the learned trial Judge erred in finding that the respondent was not required to warn the appellant of the risks of TM joint problems and symptoms arising after the procedures which the appellant underwent.

100 The learned trial Judge rejected the proposition that the appellant would have not had the surgery had she been warned of the possible risks. However, in my view the submission of the appellant's counsel that in coming to an adverse view of the appellant's credibility the learned trial Judge did not take into account the important matter of the severe effects which the complications have had upon the appellant, both physically and mentally, is correct. His Honour did not discuss the ramifications of those matters. Further, his Honour's error in his approach to the appellant's credibility is apparent from such comments as: "I find the plaintiff and her husband have deliberately allowed this garden to deteriorate to the extent that it has for the purpose of this trial and no compensation for the resurrection of the garden should be allowed." Approximately three quarters of a page further on, his Honour commented that the appellant's husband had not been subject to cross-examination. As counsel for the appellant put it, the question of this alleged deliberately allowing the garden to deteriorate for the purpose of the trial was not put to the appellant or her husband.

(Page 29)

101 Counsel made the valid point that had the appellant been properly warned in the circumstances, she may not have been carrying the obvious depression, the chronic anxiety and the collapse of her career which had occurred. The appellant may not have been as prone to make alleged extravagant statements. As counsel submitted, the reasons for judgment should have identified and articulated the actual disabilities which the appellant had and attempted to dissect how they were contributing to her performance and behaviour.

102 In the circumstances, and in applying the law in the previously decided cases, in my view the Court should allow the appeal and hold that it has been established that the respondent was negligent in failing to warn the appellant of the risk of TM joint problems and symptoms arising after the procedures which the appellant underwent. There will have to be a retrial on the issues which follow from that including the question of whether or not the appellant would have had the operation had she been appropriately warned of the risks involved.

103 The questions raised in appeal grounds 5(a), 5(b), 5(c), 5(e)(ii), 5(f), 5(g), 5(h)(i), 5(h)(ii) and 5(j) are answered above. The matters raised by the remaining grounds of appeal are either matters to be answered at a retrial or matters which do not require to be further discussed. For example, it was put for the respondent that the problems which have eventuated have arisen due to the appellant not undergoing conservative treatment which was recommended for her condition and that that might be an explanation for the failure of her condition to respond as it should. That proposition would require an assessment of the evidence at a retrial.

104 OWEN J: I have seen, in draft form, the reasons for decision that Wallwork J intends to publish. I agree with his Honour's reasons and with the orders that he proposes. I wish only to add a brief comment on one aspect of the appeal. It relates to the duty to warn.

105 It must be borne in mind that, at least at this stage of the proceedings, the gravamen of the appellant's complaint against the respondent is the failure to warn of risks of treatment rather than a criticism of the actual performance of the surgical procedure. In Rogers v Whitaker (1992) 175 CLR 479 the Court held that a medical practitioner has a duty to warn a patient of a material risk involved in treatment which the patient is contemplating. A risk is "material" if in the circumstances of the particular case, a reasonable person in the patient's position would be

(Page 30)

likely to attach significance to it or if the medical practitioner is or should be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. It is for the court and not a "reasonable body of opinion within the profession" to decide which risks are material. This is because the ultimate question is whether the practitioner's conduct conforms to the standard of reasonable care demanded by the law. It is also because the decision whether to proceed with contemplated treatment is not solely a matter of medical judgment. This is especially so in the case of elective surgery as compared with a situation brought about by necessity or an emergency.

106 The somewhat amorphous nature of standards of care in the law of negligence presents special difficulties in this area. When is a risk material in the relevant sense? The test requires the doctor to consider the attitude of a reasonable person in the patient's position. It also requires the doctor to place himself or herself in the position of the patient and to reflect on whether the information about risk is of a kind that such a patient would wish to be apprised of it. The answer may differ from patient to patient. The test contains both objective and subjective elements. Accordingly, it is beset by problems that are often encountered wherever a legal concept (for example, provocation in the criminal law) embraces both objective and subjective elements. They do not always sit happily together. And as the dissenting judgment of Hayne J in Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344 at [142] demonstrates, applying mathematical formulae to assess the magnitude of the risk is not likely to be helpful. Some commentators have described the development of the law as set out in Rogers v Whitaker and Chappel v Hart as being the result of an evolution from "medical paternalism" to "medical conservatism": see, for example, Olbourne N, "The Influence of Rogers v Whitaker on the Practice of Cosmetic Surgery" (1997-98) 5 JLM 334 at 342. The application of the relevant standard will have to be worked out on a case by case basis. In so doing care will have to be taken to ensure that in guiding the evolution away from "medical paternalism" the law does not place an unreasonable burden on members of the medical profession.

107 In this case the appellant was contemplating orthognathic surgery. The gravamen of the appellant's case is that the respondent failed to warn her of the risks of the surgery and of the complications which subsequently ensued. For the reasons given by Wallwork J I believe there was a sufficient evidentiary base to support a finding that the risks were material in the relevant sense and that the respondent was under a duty to

(Page 31)

warn her of them. In failing so to find the learned trial Judge fell into error.

108 Of course, the mere finding of failure to warn of a material risk will not necessarily result in liability being sheeted home to the medical practitioner. It must also be established that breach of duty was productive of damage. Here the issue is whether the appellant would have refrained from undergoing the surgery had the appropriate warning been given. The trial Judge said: "I am quite satisfied in the circumstances that even if the [appellant] had been warned of the slight possibility, and certainly it was very slight, of complications she would have proceeded with the surgery in any event". In reaching that conclusion the trial Judge was heavily influenced by his assessment of the appellant's credibility. Wallwork J has dealt with the critical issues relating to the trial judge's adverse findings against the appellant's credibility. There is nothing that I can usefully add to his Honour's examination of those issues. In accordance with the well recognised principles enunciated in cases such as Devries v Australian National Railways Commission (1993) 177 CLR 472 I think this is one of the rare cases in which the appellate tribunal is required to intervene notwithstanding that the impugned findings are based on credibility.

109 The action should be remitted to the District Court for further consideration in the manner and to the extent suggested by Wallwork J.