Negligence—Breach of duty—Medical practitioner—Duty to warn of possibility of adverse effect of proposed treatment—Extent of duty.
Decisions
MASON C.J., BRENNAN, DAWSON, TOOHEY AND McHUGH JJ. The appellant, Christopher Rogers, is an ophthalmic surgeon. The respondent, Maree Lynette Whitaker, was a patient of the appellant who became almost totally blind after he had conducted surgery upon her right eye. The respondent commenced proceedings against the appellant for negligence in the Supreme Court of New South Wales and obtained judgment in the amount of $808,564.38. After an unsuccessful appeal to the Court of Appeal of New South Wales ((1) (1991) 23 NSWLR 600), the appellant now appeals to this Court.
2. There is no question that the appellant conducted the operation with the required skill and care. The basis upon which the trial judge, Campbell J., found the appellant liable was that he had failed to warn the respondent that, as a result of surgery on her right eye, she might develop a condition known as sympathetic ophthalmia in her left eye. The development of this condition after the operation and the consequent loss of sight in her left eye were particularly devastating for the respondent as she had been almost totally blind in her right eye since a penetrating injury to it at the age of nine. Despite this early misfortune, she had continued to lead a substantially normal life: completing her schooling, entering the workforce, marrying and raising a family. In 1983, nearly forty years after the initial injury to her right eye and in preparation for a return to the paid workforce after a three year period during which she had looked after her injured son, the respondent decided to have an eye examination. Her general practitioner referred her to Dr Cohen, an ophthalmic surgeon, who prescribed reading glasses and referred her to the appellant for possible surgery on her right eye.
3. The respondent did not follow up the referral until 22 May 1984 when she was examined by the appellant for the first time. The appellant advised her that an operation on the right eye would not only improve its appearance, by removing scar tissue, but would probably restore significant sight to that eye. At a second consultation approximately three weeks later, the respondent agreed to submit to surgery. The surgical procedure was carried out on 1 August 1984. After the operation, it appeared that there had been no improvement in the right eye but, more importantly, the respondent developed inflammation in the left eye as an element of sympathetic ophthalmia. Evidence at the trial was that this condition occurred once in approximately 14,000 such procedures, although there was also evidence that the chance of occurrence was slightly greater when, as here, there had been an earlier penetrating injury to the eye operated upon. The condition does not always lead to loss…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Rogers v Whitaker [1992] HCA 58
Case
[1992] HCA 58
Decision Date
CaseChat Overview and Summary
In *Rogers v Whitaker*, the High Court of Australia considered an appeal from a judgment of the Supreme Court of New South Wales. The case concerned a claim for damages for negligence brought by the respondent, Mrs Whitaker, against the appellant, Dr Rogers, an ophthalmic surgeon. Mrs Whitaker alleged that Dr Rogers had been negligent in performing a surgical procedure on her eye, resulting in a loss of vision.
The central legal issue before the High Court was the standard of care required of a medical practitioner in performing a surgical procedure. Specifically, the court had to determine whether the standard of care was to be judged by the practices of other medical practitioners or by reference to what a reasonable body of medical opinion considered to be appropriate. The court also considered the question of causation, namely whether the alleged negligence of Dr Rogers had caused the loss of vision suffered by Mrs Whitaker.
The High Court held that the standard of care owed by a medical practitioner is not determined by the practices of other practitioners but by what is reasonable in the circumstances. The court affirmed that a medical practitioner must exercise the degree of care and skill that a reasonably prudent medical practitioner would exercise in the same circumstances. This standard is objective and not determined by the prevailing practices of the profession, although evidence of such practices may be relevant in determining what is reasonable. The court found that Dr Rogers had failed to exercise the required degree of care and skill, and that this negligence had caused Mrs Whitaker's loss of vision.
The High Court dismissed the appeal, upholding the decision of the Supreme Court of New South Wales and affirming the award of damages to Mrs Whitaker.