Rogers v Whitaker

[1992] HCATrans 126

~ ~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl35 of 1991

B e t w e e n -

CHRISTOPHER ROGERS

Appellant

and

MAREE LYNETTE WHITAKER

Respondent

MASON CJ
BRENNAN J

DAWSON J

TOOHEY
GAUDRON J

McHUGH J

Rogers(2) 1 28/4/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 APRIL 1992, AT 10.18 AM

Copyright in the High Court of Australia

MR P.G. HELY, OC: If the Court pleases, I appear with

MR G.O'L. REYNOLDS, for the appellant. (instructed

by Blake Dawson Waldron)

MR D.A. WHEELAHAN, OC: May it please the Court, I appear

with my learned friends, MR S.L.	WALMSLEY and
MR E.A. DAY, for the respondent.	(instructed by
Henry Davis York)

MASON CJ:	Mr Hely?
MR HELY:	Might I hand up copies of the outline of our

submissions?

MASON CJ: Thank you.

MR HELY:  If the Court pleases. Your Honours, it is

submitted that the central issue which arises in

this appeal is whether the judge having found that

there were two responsible bodies of medical

opinion, as to whether the risk of sympathetic

ophthalmia should or should not have been disclosed

in the clinical situation with which the defendant

was confronted, whether it was open to the judge to

prefer one body of opinion to the other, or whether

he should have inquired and whether he failed to

inquire, whether no reasonably competent

practitioner could have acted as the defendant did.

The terms of the Bolam test are summarized in

the judgment of the trial judge at page 830,

lines 15 to 20, where His Honour sets out the

formulation from Bolam of the standard of care, and

on page 831, between lines 5 to 12, he sets out the

other classic passage from Bolam indicating how

performance of that standard is to be measured.	We
submit that to put the matter in that way focuses
attention upon three matters, each of which is of
importance.

The first is that there may be more than one

bodies of opinion which may qualify as responsible
even if each is in conflict with the other.

Secondly, that in the matter of professional

expertise, it is no part of the court's function to

give effect to any preference it may have for one

body of opinion over another provided that it is

satisfied that each qualifies as responsible.

McHUGH J: What about applying the Bolam test to, say, deep

sleep therapy which, from say about the 1920s until

it was finally condemned, was followed by a

considerable body of medical men?

MR HELY:  Perhaps there are two questions to which the

Court has to advert. The first question is whether

Rogers(2) 28/4/92

there is any conflict in the medical evidence as to
the soundness of that practice. If there is a
conflict the Court has to resolve it. Second, the

Court has to determine, in the light of all of the

evidence before it, whether that practice is a

practice which reflects responsible medical

opinion, but once it comes to the conclusion that

it does, the fact that there might be more than one

practice or conflicting practices is beside the

point. It is no part of our case that the Bolam test abdicates to the profession the standard of care.

McHUGH J: But that must be the effect of it, must it not?

MR HELY:  We would submit not because, ultimately, it is for

the Court to determine whether the body of opinion

which favours a particular course satisfies the

description of "responsible". If, on the totality of the evidence, the Court comes to the conclusion

that it does not, then the practice is rejected.

McHUGH J:  How does the Court determine whether it is a

responsible body of medical men?

MR HELY:	By consideration of the totality of the evidence. One cannot give a concrete answer to that question
in the abstract. Each case must depend upon its
own circumstances. A court could take into account, for example, some of the factors referred
to by Mr Justice King in F v R in coming to a
conclusion upon that question, provided the court clearly has before it the relevant question and not the question as to whether it prefers one body of opinion to another.
MASON CJ:	You are putting this principle forward as one not

confined to medical expertise but as one which

extends to all questions of conflicting

professional opinion?

MR HELY: Yes, if the Court pleases.
MASON CJ:	Is there any reason why it should be confined to conflicting professional opinion?
MR HELY:	Not to conflicting professional opinion but to

conflicting opinion in any calling which involves

particular skill and expertise. The magic lies not

in the word "professional" but in knowledge,

experience and learning.

McHUGH J: But on this theory in a criminal case, there

would be no case to go to the jury if an accountant

or somebody else had done something which accorded

with opinions or a practice accepted by a

Rogers(2) 3 28/4/92

responsible body of men or women in his or her

profession.

MR HELY:  There would be a case to go to the jury, because

the jury still has to determine whether what is

proffered as a responsible professional in fact

satisfies that description. This was made by

Lord Diplock in Sidaway's case, (1985) 1 AC 871,

and the particular passage is at page 895. Between

the letters A and B, His Lordship said this:

In matters of diagnosis and the carrying out of treatment the court is not tempted to put

itself in the surgeon's shoes; it has to rely

upon and evaluate expert evidence, remembering

that it is no part of its task of evaluation

to give effect to any preference it may have

for one responsible body of professional

opinion over another -

and I emphasize the next passage -

provided it is satisfied by the expert
evidence that both qualify as responsible

bodies of medical opinion.

Similarly, in the speech of Lord Bridge at

page 900 - - -

BRENNAN J: That first citation does not take you as far as

you need to go here, does it, because it seems to

be restricted to matters of diagnosis and the

carrying out of treatment.

MR HELY:  I would submit not, because the whole thrust of

His Lordship's speech is that one does not

compartmentalize the three aspects of medical

treatment. Each is to be tested by reference to

the same principle. That comes from page 893,

particularly between the letters D and F. Just
before line G, His Lordship says:

In modern medicine and surgery such dissection

of the various things a doctor had to do in

the exercise of his whole duty of care owed to

his patient is neither legally meaningful nor

medically practicable.

BRENNAN J: But does he say anywhere about giving

information to patients?

MR HELY:  At line H - - -

MASON CJ: There is something in E, is there not? Whether

it goes far enough is a different matter, but he

says:

Rogers(2) 4 28/4/92

This general duty is not subject to dissection

into a number of component parts to which

different criteria of what satisfy the duty of
care apply, such as diagnosis, treatment,

advice (including warning of any risks of

something going wrong however skilfully the

treatment advised is carried out).

MR HELY:  Yes, thank you, Your Honour.

TOOHEY J: What justification is there for applying the

Bola.m test to giving of advice, when there is no conflict of medical opinion as to the

subject-matter to which the advice might relate?

MR HELY:  The question is whether advice involves the

exercise of medical expertise. If it does involve

medical expertise, we would submit that the same

factors that would cause one to apply Bola.m to

diagnosis and treatment would also cause one to

apply them to advice.

TOOHEY J: Well then, given a consensus of medical opinion

as to what the subject-matter is to which the

advice might relate, where is the medical expertise

in the actual giving of the advice?

MR HELY:  Your Honour, because it involves, I suppose, first

these things: one needs to have recourse to medical

evidence to determine the foreseeability of the

risk; one would indeed have regard to medical

evidence to determine the incidence of the risk;

one would need to have regard to medical evidence

to determine the seriousness of the risk; one would

need to have regard to medical evidence to

determine the desirability of the procedure which

is in contemplation; one would need to have regard

to medical evidence to determine the likely impact

upon patients of disclosure of risks of various

classes. All of those matters, we would submit,

involve medical expertise.	One is really
confronted with a situation in which a doctor is

facing a total clinical situation, not

compartmentalized into separate parts, but simply a

total situation consisting of what he sees, what he

is told, what he feels and what he is asked.

BRENNAN J: But in this situation here, there was no doubt

about the nature of the procedure which was under

discussion; namely the operation upon the defective

eye. No medical disagreement as to the possibility

of sympathetic ophthalmia. Perhaps some difference as to the statistical likelihood of its occurrence, but in substance the nature of the risk was common

ground. Where is the medical expertise as to

whether that advise should be communicated to the

patient?

Rogers(2)	28/4/92
MR HELY:	The medical expertise is whether it is appropriate

to disclose to patients a risk of injury which, to

use the expression of one of the plaintiff's

doctors, "was almost negligible", and to use an

expression of one of the appellant's doctors, "was

negligible".

TOOHEY J: But, Mr Hely, are you not blurring two questions

in that submission: one, the situation of the

doctor who contemplates the risk, but decides for

good reason that the risk should not be

communicated to the patient, for instance, because

it is disproportionate to the reaction that the

particular patient might have; and the other

question of whether the doctor adverts at all to

the risk.

MR HELY:  Your Honour, can I endeavour to deal more with

Your Honour's question this way. There is no doubt

that the appellant knew of sympathetic ophthalmia;

there is no doubt that he knew of the circumstances

in which it would occur. As he put it, it is one

of those very rare diseases that one always has

towards the back of one's mind, but what he said

was, that in the total clinical situation with
which he was confronted, including the questions

that were put to him by the patient; including the

patient's desire for the operation; including his

assessment held to be non-negligent, that the

operation would be beneficial to the patient, that

it just did not come to mind to mention it to her.

So that what we submit is that he is confronted

with, as I endeavoured to put it, a total clinical

situation, and whilst he knows of the prospect, it

just did not come to mind to mention it to the

plaintiff, having regard to those factors.

McHUGH J: But was he cross-examined about his reasons for

not disclosing it, after he knew how concerned she

was that something might happen to her good eye?

He even wrote a note about it.

MR HELY:  The proposition that he knew how concerned she was

about the prospect of damage to her good eye, is,

we would submit, a proposition which is not

established by the evidence.

McHUGH J: Well, he wrote a note, did he not?

MR HELY:  I cannot recall having come across a note.

Mr Reynolds reminds me that there was a note in the

hospital notes, roughly to the effect of what

Your Honour puts to me. I am not conscious of

having come across any such note to which the

appellant was party or privy.

Rogers(2) 6 28/4/92

McHUGH J: But I thought the doctor himself said that she

questioned him about, "Don't operate on my wrong

eye, and have an early night's sleep".

MR HELY: That evidence was, in effect, in the hospital - it

is extracted at page 114, between lines 5 to 20.

It is a conversation which took place between the appellant and the respondent in the hospital on the
evening prior to the operation, and we would submit

that it does not rise above our conversation which one would perhaps expect to occur, where a patient

is seeking reassurance, in effect, that the wrong

leg will not be cut off, and we would submit that

it does not rise above that.

One of the, perhaps, problems in this case is

that the judge does not make any specific finding

as to just what the communications between the

appellant and the respondent were upon this topic.

Both the appellant and the respondent gave

different versions of their conversations, and to

the extent to which they conflicted the judge

preferred the evidence of the appellant.

It might, perhaps, be appropriate for me to

take Your Honours briefly to what the appellant's

evidence was on that question because it does help

to place the clinical setting in context. If one

goes to page 804 between lines 15 and 25, one sees

part of a conversation which took place at the

initial consultation in which the respondent - - -

McHUGH J:	I am sorry, what page is that, Mr Hely?
MR HELY:	Page 804, lines 15 to 25 where one sees

conversation directed towards the respondent's

expectations from medical treatment. On page 806,

between lines 25 to 30, is the defendant's

statement of what he expected to be able to do for

her. The question of the possibility of

complications arises on page 807, and could I

interpolate and remind Your Honours that the

respondent was a person who had worked for some

years as a nurse's aid, so that she was not totally unfamiliar with the hospital environment. At about

line 15, after a discussion of raised pressure, the

appellant said:

I suppose you realise there are complications

that can follow surgery.

The defendant said that he could not

remember the exact words of the reply by the

Plaintiff to this observation but it was to

the effect "What would they be?"

Rogers(2) 28/4/92

Then he gives an answer which is restricted to

complications which could ensue with respect to the

eye once the operation was to be conducted.	It is
given in terms of complications which are more

likely. It is significant, perhaps, to note that

the appellant, having stated in terms what he

considered to be more likely complications, there

is no reaction by the respondent seeking further

information upon that topic.

Then, on page 810, at the second consultation,

at about line 15, the respondent says:

There's a couple more things I want to know .....

Plaintiff: Have you operated on any other

eyes like mine?

Defendant: Yes I have. Similar - not exactly

the same, but similar.

Plaintiff: Well, how did they go?

And that is responded to.

Plaintiff: What's the worst thing that has

happened to those eye?

That is to say, the eyes upon which he has

previously operated, and he gives a response. At

page 811, between lines 20 and 35, he gives

evidence as to what he told the respondent with the

benefits that she could expect to derive from the

surgery: better management of:

intraocular pressure ..... she would be able to

get some vision -

one could -

see whether she had the capacity for good

vision -

and -

her worst cosmetic deficit was the pupil.

BRENNAN J:	Was that intraocular pressure in both eyes?
MR HELY:	Yes, Your Honour.
BRENNAN J:	So that there was a conscious aversion to the

effect of the operation on the bad eye in relation

to the pressure in the good eye?

Rogers(2) 28/4/92

MR HELY:  No. I would submit that there is nothing that

would suggest that the operation could have any

adverse consequences in so far as pressure on the

good eye was concerned. It was simply a fact that

she had pressure on both eyes, it had to be lowered

before the operation could be conducted, and the fact that pressure in each of the eyes indicated

that she was, at least, a glaucoma suspect with

respect to both eyes.

BRENNAN J: What about page 808, line 5?

MR HELY: This was directed towards this question: she was

a glaucoma suspect and she was a glaucoma suspect
in relation to each eye. Assuming that glaucoma

had developed in relation to her good eye, and

there was the possibility that she might need

surgery upon that eye at some stage in the future.

That was the context in which that was mentioned.

Could I come then to page 812, between

lines 30 and 40, whether her doctor addresses the

question as to whether this surgery was purely
cosmetic or, perhaps, to use a dangerous word

"elective", and he says that he did not regard it

as being purely cosmetic because of the raised

pressure in both eyes. Page 814, lines 15 to 20, I

have already taken the Court to and that is the
conversation which took place in the hospital on

the night prior to the operation. Page 821 line 20

to page 822 line 5 is the cross-examination upon

this question of the respondent being an inquiring

patient:

she had a healthy interest in her disease.

Q. And she had a healthy interest in not only

the disease but what it was you had planned

for her, to treat or correct it -

and that is it.

Whilst I am looking at evidence, to complete

this topic, if I could just ask the Court to go to

page 823, commencing at line 15 and continuing to

page 824, line 5, where the doctor gave evidence as

to his reasons for not disclosing to this patient

or discussing with this patient the prospect of

sympathetic ophthalmia. We would submit the

purpose of taking Your Honours to that evidence was

to submit that this does not support a contention

that the appellant ought to have appreciated that

the respondent had a concern with respect to her

good eye.

GAUDRON J: But you would hardly need evidence for that,

Mr Hely, in these circumstances. No doctor would

Rogers(2) 9 28/4/92

be in the position to assume that she had no

concern with respect to her good eye.

MR HELY:  Could I answer Your Honour's question this way.

What one is confronted with is a very rare disease where the prospects of it being contracted are

remote and where, if contracted, the prospects of

blindness are negligible, or almost negligible.

She did not present to the doctor in a physical

sense as a patient in whom there was any heightened

likelihood of this disease occurring, nor does she

present to the doctor as a person who was saying to

him, "Please tell me all the possible complications

which can flow from this procedure, however

remote." It is he who raises the question of

complications. He tells her what the most likely

complications are and, in substance, there the

matter rests. We would submit in those

circumstances that one just cannot draw the

conclusion that he was being asked to tell her of

every serious thing that could conceivably go

wrong, no matter how remote. What response he

should give to that clinical situation is

essentially a matter involving medical expertise

and judgment.

DAWSON J: It is the last part that gives some trouble.

What is the underlying rationale of the Bolam

principle?

MR HELY:  The underlying rationale of the Bolam principle

is, I suppose, that in matters involving or

touching and concerning medical or other expertise,

one firstly needs education and, secondly, the

principal matter which one will take account of is

what proper practice in those circumstances

requires.

DAWSON J: It is that the Court cannot choose between

competing views in the area of medical expertise.

MR HELY:  The Court cannot choose between competing

responsible views.

DAWSON J:  The Court can say whether someone ought to have

proffered some information quite easily.

MR HELY: Well, again, it depends upon the situation in

which the Court is invited to come to a conclusion

upon that question. May I take a case from the

present? Assume that there was a dispute, or that

there were two bodies of responsible medical
opinion, as to whether a particular condition could

involve a particular consequence and each of those

bodies of opinion was perfectly responsible. those and, for that reason, he did not warn the

Rogers(2) 10 28/4/92

patient of the possibility of that consequence

coming to pass. We would submit that, in those

circumstances, once the Court comes to the
conclusion that there are two bodies of opinion

that qualify as responsible, it is not for the

Court to determine which is the better view.

DAWSON J: But it is that example which differentiates this

case. That is not this case.

MR HELY:  In this case there were certainly two different

views.

DAWSON J: As to whether she should be told, but not in

relation to the information which it was possible

to proffer.

MR HELY: True. There was dispute at the periphery, if you

like, as to just what the likely statistical

incidence of the disease would be and whether it was

complicated by previous trauma, and there was some

dispute between the experts as to the further
question as to whether, if the disease were
contracted, it was likely to lead to blindness. But
subject to those matters, I agree, there was no

dispute as to the underlying condition.

TOOHEY J:  I must say, Mr Hely, the illustration you just

gave us, if anything, seems to me to point up the

difficulty of applying the Bolam test, because one

can understand a doctor having a view as to the

non-likelihood of a particular consequence but

being aware of the existence of an opinion by

responsible medical practitioners that such a

consequence is at least possible, if not likely, it

is hard to see that the obligation to alert the

patient to that possible consequence is answered by

saying, "I myself do not believe it to be a likely

consequence of the surgery I am about to perform".

MR HELY:  But is that different, with respect, from a case

such as Maynard's case, where the physicians were

confronted with a situation in which the diagnosis

was possibly tuberculosis or possibly something

else. If it was tuberculosis, one form of

treatment was indicated; if it was something else,

a different form of treatment having serious

consequences potentially was indicated. They

recognised that, upon one view it could be
tuberculosis; upon another, it could be the more
serious condition. They opted for the more serious

condition and treated it accordingly and the worst

happened. We would submit there is no difference

in principle between those two situations.

Rogers(2) 11 28/4/92

BRENNAN J: That is a formation of a clinical judgment,

though, is it not, a clinical judgment which leads

to treatment?

MR HELY:	Yes.
BRENNAN J:	Is not the Bolam principle merely an application to a particular kind of fact situation of the
ordinary test of reasonable care?
MR HELY:	Yes, it is.

BRENNAN J: Well, then, it is a question of fact.

MR HELY: Ultimately.

BRENNAN J: And if it is a question of fact, if you have got

two competing views responsible in an area of

expertise, it may not be possible to say that one

of those views is unreasonable.

MR HELY:	Once you accept that the two competing views are held by responsible practitioners, we submit that
one cannot come to that conclusion.
McHUGH J:	But they may be wrong having regard to the

standards which the law imposes. Now, one

principle that the law of negligence imposes is

that the standard of care varies with both the

degree of risk and the degree of damage. A risk

which may cause trivial damage may be disregarded

but a risk, no matter how small, which can have

catastrophic consequences may require a precaution

to be taken.

MR HELY:	Your Honour, in effect, puts to me Shirt's case.
McHUGH J:	No, I put to you Paris v Stepney Borough Council,

which is a case of blindness, an employer and

employee case.

MR HELY: True, but that involves the consequence that there

is a duty to volunteer all serious risks no matter

how remote, and even if the consequences of serious

harm are negligible. If that was the proper

approach to the question, the trial judge could not

have come to the conclusion, which he did, that

there was no duty to disclose had there been no

questioning.

McHUGH J: That is another question, and you have got a

finding in your favour on that point.

MR HELY:  Yes, but, Your Honour, we would submit, that the

question is not answered by that sort of approach

because if one says to oneself, "Could he have

disclosed?", then obviously he could have.

Rogers(2)	12	28/4/92
McHUGH J:	No, I was not putting it in this context.	I was

putting it as showing the inherent weakness of

Bolam. Bolam says, in effect, the medical

profession prepares the dossier which comes before

the court. What I was putting to you is that

there are legal standards which have got to be

applied.

MR HELY:  I accept that there is a legal standard that has

to be applied and I accept that the matters which

Your Honour puts to me may be relevant to the questions as to whether the practice relied upon is

responsible. But what I do submit is that when one

has come to a conclusion that the practice is one

which is adopted by responsible professionals, one

cannot convict a person of negligence simply

because there is a different and contrary practice.

McHUGH J:  That is probably the case in most cases. You get

doctors disagreeing and in most cases it might be near impossible to hold doctors negligent, or any other professional.

MR HELY: But, Your Honour, if one looks at page 847,

lines 15 to 20, one has the benefit of a factual

finding that there was:

in the present case, as is conceded, a body of

responsible -

if I could underline that word -

professional opinion that the questions asked
by the Plaintiff did not require an

explanation of the risk of sympathetic

ophthalmia.

GAUDRON J:  I must be missing something, but does Bolam go

beyond the standard of care? It does not go to the

existence of a duty of care, does it? That is a

legal question.

MR HELY:  Your Honour, the existence of a duty of care is a

legal question.

GAUDRON J: And are we concerned with anything in this case

other than the existence of a duty, because once

that is answered, everything else flows.

MR HELY:  The existence of a duty of care is conceded and it

was common ground that the duty of care was to act

in a way in which a reasonably careful specialist

would have acted in comparable circumstances.

GAUDRON J: Well, is there not another question of was there

a duty to disclose?

Rogers(2) 13 28/4/92

MR HELY:  But that is just an aspect of the same question.

What did the exercise - - -

GAUDRON J: That is the aspect of duty, not the standard of

care.

MR HELY:  But so far as performance of the duty is

concerned, or breach, the question is, what did the

exercise of reasonable care require in the

circumstances. Bolam says that if you gave got two

bodies of responsible professional opinion,

indicating in different directions, if you act in

accordance with one of them, that you cannot be

said to be negligent.

GAUDRON J: Well, it depends where you cut into the problem,

does it not?

MR HELY:	It very often does, if Your Honour pleases.
GAUDRON	J: But for my part, I find it quite extraordinary

to treat the duty to disclose, if there be one, as

just an aspect of duty to treat, as it were, with

care; manage and treat.

MR HELY:  What the patient goes to the doctor for, is, in

effect, the three aspects of medical service.	Each
of them involves matters of medical expertise	and
we would submit there is no reason for
compartmentalizement, and that is what	the
House of Lords decided in Sidaway, and	we would
submit that it is perfectly consistent	with
principle.

GAUDRON J: It may be consistent with the historical

development, which ordinarily stopped short of

imposing a breach of duty to disclose in a variety

of situations, but that has changed over time, has

it not?

Well perhaps, but if what Your Honour puts to me

MR HELY:

is the case, the judges finding that there was no

duty to volunteer in these circumstances would not be defensible. He has made that finding and it is

a finding of fact, and I would submit we are

entitled to the benefit of it.

GAUDRON J: Well, the existence or non-existence of a duty

is not ordinarily seen as a pure finding of fact.

MR HELY:  I am sorry; I did not mean to suggest that it was.

If I did, I would wish to withdraw that and to

apologize for having said it, but Cook v Cook, I

think, makes clear that the ambit of the duty and the standard of care are, to some extent, closely

interrelated, and we would submit that the duty of

care is simply what a reasonably competent surgeon

Rogers(2) 14 28/4/92

would have done in these circumstances, and the

question is whether no reasonably competent surgeon
could have done as the defendant did, given two

bodies of responsible professional opinion pointing

in different directions, and given that the

question is ultimately one of reasonableness and
not perfection of conduct, we would submit that
that just negatives the possibility of a finding of
negligence.

Could I take Your Honours briefly to the decision of the House of Lords in Maynard v West

Midlands Regional Health Authority, (1984) 1 WLR
634. That was a case in which the most likely

diagnosis of a plaintiff's illness was tuberculosis and there was the possibility of Hodgkin's disease,

carcinoma, and other dreadful things.

Because Hodgkin's disease was fatal unless remedial steps were taken in its early stages -

the doctors decided to perform a particular

procedure which involved risk of damage. That

damage ensued, and it was later found that what the

plaintiff was suffering from was tuberculosis and

not the rarer conditions.

Lord Scarman, at page 638, between E to H,

particularly at about F, says this:

It is not enough to show that there is a body

of competent professional opinion which

considers that there was a wrong decision, if

there also exists a body of professional

opinion, equally competent, which supports the

decision as reasonable in the circumstances.

It is not enough to show that subsequent

events show that the operation need never have

been performed, if at the time the decision to

operate was taken it was reasonable in the

sense that a responsible body of medical
opinion would have accepted it as proper.	I

do not think that the words of Lord President

Clyde in Hunter v Hanley can be bettered:

"In the realm of diagnosis and treatment -

and I concede that this case says nothing on the

question of advice -

there is ample scope for genuine difference of

opinion and one man clearly is not negligent

merely because his conclusion differs from

that of other professional men ... The true

test for establishing negligence in diagnosis

or treatment on the part of a doctor is

Rogers(2) 15 28/4/92

whether he has been proved to be guilty of

such failure as no doctor of ordinary skill

would be guilty of if acting with ordinary

care. "

I would only add that a doctor who

professes to exercise a special skill must

exercise the ordinary skill of his speciality.

Differences of opinion and practice exist, and

will always exist, in the medical as in other

professions. There is seldom any one answer

exclusive of all others to problems of

professional judgment. A court may prefer one

body of opinion to the other: but that is no

basis for a conclusion of negligence.

And on page 639, if I could invite Your Honours'

attention to what His Lordship said, between the

letters F and H, it emphasizes that what one is

talking about is reasonableness and not preference

for one body of professional opinion over another

and, prima facie, if a person is acting in
accordance with a responsible body of professional

opinion, he cannot be said to be unreasonable or he
cannot be said to be acting unreasonably, in so

doing. Then, on page 640 - perhaps that does not

take it any further.	I will not trouble Your
Honours with that.

BRENNAN J:  Mr Hely, I can understand this quite clearly if

it is a question of professional opinion, but I do

not see the slightest indication of professional

opinion as touching the problem of whether Dr A

would have this as a risk that would come to his
mind in dealing with a patient, and Dr B would not.

One thinks that it is an important and significant risk to be warned against, the other does not.

Where is the professional expertise that starts to

touch that question?

MR HELY:

I would submit that it comes in in two ways;

first, the ultimately relevant question is not

whether it should have come to mind, but whether it should have been mentioned. When I said whether it should have been mentioned, I am immediately and

properly corrected. If I could restate that as
being whether any reasonably competent doctor would

have mentioned it in the circumstances.

BRENNAN J:  You see, you have immediately assumed the question I am putting to you. Of course that might

be the test if Bolam applies, but Bolam applies
because it is a question of professional opinion.

Where is the professional opinion in the issue of giving the advice?

Rogers(2) 16 28/4/92

MR HELY:  Your Honour put to me that the question is:

should the matter have come to mind? I was

submitting for Your Honour's consideration that the relevant question is perhaps not that question, but

whether it should have been mentioned.

BRENNAN J: Yes, whether it should have been mentioned.

MR HELY:  Whether it should have been mentioned, we would

submit, depends upon an assessment of incidents,

consequences and the total clinical situation with

which one is confronted, and that is a matter, we

submit; upon which medical opinion is both

receivable and relevant.

MASON CJ: But what is the assumption? Is the assumption

that no sufficiently specific request for

information has been made?

MR HELY:  The assumption is that essentially, I suppose, as

a matter of ethics, if a sufficiently specific

request for information has been made, then

ordinarily it will be provided. The second

assumption is that if a sufficiently express

request for information is made, that may cause one

to mention matters which one would otherwise, in

the exercise of one's judgement, think it not

appropriate to mention. The specificity of the

request causes one to do something which, but for

that request, one would not do.

McHUGH J:  Mr Hely, I cannot help but think that one of the

problems that has arisen from Bolam is that Bolam

and the cases that follow it such as Sidaway

reflect the language of assumpsit and not the

language of negligence. They talk about ordinary

skill and care, which is the language of assumpsit

for those who held themselves out as carrying on a

profession or a trade, whereas the language of

negligence is that of reasonable care. This action

was fought in the Court of Appeal on the basis of
negligence.	I know that people say that there is
no distinction between contract and negligence.	I
am not so sure myself that that is correct.

MR HELY:  Certainly the matter that Your Honour puts to me

was not the basis on which the House of Lords dealt

with it in Sidaway. They dealt with it upon the

basis that they were confronted with a pure

question of negligence.

McHUGH J: Except Lord Diplock himself spoke about the case

being grounded in assumpsit, and he makes a

surprising reference to Slater v Baker in which he

said that the suggestion that an injury caused by

surgery could be the basis of an action in

trespass, was rejected with scant sympathy by the

Rogers(2) 17 28/4/92

Court of King's Bench in Slater v Baker. With

great respect to His Lordship, Slater v Baker says

almost the opposite.

MR HELY:	I have to confess I have not read Slater v Baker.
McHUGH J:	In fact in Slater v Baker Their Lordships were

seeking to justify the use of assumpsit instead of
trespass. That is by the way, but there is the
question of language. There is not much mention of

reasonable care in the English judgments. It is

all talk about ordinary skill and ordinary care,

and one can understand the Bolam principle in that

context.

MR HELY:  But Bolam talks in terms of what does reasonable

care require, and what reasonable care requires is
the exercise of skill in accordance with the
standards of responsible and competent members of

the profession.

McHUGH J:  I know, you get one result from that, but if you

say it is question whether medical practitioners

have exercised reasonable care you may get

different views.

MR HELY:  I would submit not.

McHUGH J: Take a thing like stress, only a few years ago

most medical people used to say stress caused heart

disease, now the best opinion seems to be the

opposite.

MR HELY:  But it does not mean that the first opinion, when

originally formed, was negligent, and nor does it

mean that the second opinion may not be supplanted

by the first opinion in due course. One is just

not talking in terms of things which are

sufficiently concrete so that one can say that one is right and one is wrong, all one can say is that

one reflects a responsible view taken at the time.

We had put to Your Honours that the Bolam test

question of the determination of the appropriate standard of care, and we said that for these reasons, firstly, if there is a conflict between the expert evidence as to what responsible practice required, then the court can resolve that conflict.	does not involve the surrender to the profession in opinion which approved the defendant's conduct could be said to be responsible. But then we
submitted that where all of the expert witnesses
agreed that the doctors' actions were reasonably competent, it is not open to the tribunal of fact
to find negligence in matters involving
professional expertise unless the practice was

Rogers(2) 18 28/4/92

obviously wrong. We need to support the

proposition that one cannot dismiss a unanimous

view as to proper practice unless it was obviously

wrong.

BRENNAN J:  You used the word there "involving" professional

expertise -

MR HELY:	Yes, Your Honour.
BRENNAN J:	- - - a term of somewhat ..... connotations.
MR HELY:	I trust Your Honour will forgive me.
BRENNAN J:	I was just wondering if you should direct us to

the best case you have got which suggests a broad

connotation for that term.

MR HELY:  The two best cases that I have got are Sidaway in

the House of Lords, and Blyth in the Court of

Appeal.

BRENNAN J: Right.

MR HELY:  Does Your Honour wish me to take Your Honour to

Blyth?

BRENNAN J:	No, thank you.
MR HELY:	They are my two best cases.
BRENNAN J:	The passage is cited at the top of page 2?

MR HELY: Essentially.

BRENNAN J: Yes.

MR HELY:  What I wanted to put on that question for

Your Honour's consideration is this, that one only

comes to this question of obviousness where there

is no conflict between the medical evidence and

what one is deciding is whether one should, in

effect, reject a unanimous body of professional

evidence which supports one opinion as responsible.

The plaintiff, bearing the onus of proof, cannot

overcome that evidence unless his evidence is very

strong.

It is reasonable for a professional to adopt a

practice unless the plaintiff's evidence shows that

that practice is obviously wrong, so that when one

is talking in terms of a practice being obviously

wrong, one is not so much imposing a legal

standard, or a strict legal principle, but the
expression reflects the practical working out of
the onus of proof in the face of strong evidence

upon the issue, given that the test is one of

Rogers(2) 19 28/4/92

reasonableness. So that, whilst the courts have

said in a different context that expressions such

as "obvious folly" are inappropriate to the law of

negligence, we do submit that the propositions as

to "obviously wrong" referred to in the cases that

I have referred to are an accurate reflection of the consequences of the working out of the onus of proof in a context where the issue is one of reasonableness.

In paragraph 7 of our submissions, we have

directed Your Honours' attention to certain

findings of the trial judge and to parts of the

evidence which provide the context in which this

matter has to be considered. I will not read those

to Your Honours, and could I come to the judge's

reasons for his decision which, for this purpose,

effectively commence at page 881 at about line 12.

He poses, as the relevant question, what:

was in 1984 the proper practice to be

adopted -

and we would submit, with respect, that His Honour

misdirects himself in putting the matter in that
way because the question is not, "Which of two

practices is proper?", the question is, "Is the

defendant acting unreasonably if he proceeds in

conformity with one of them?". His Honour

indicates what he thought was proper practice in

the particular circumstances.

We would submit that His Honour has fallen into perhaps three errors. The first error is

that, having found there were two bodies of

responsible medical opinion, he prefers one to the

other. The second error, which is perhaps just an

incident of the first, is that contrary to the
injunction in Maynard's case - I am sorry, the

second error is that if it be thought, and we would

submit it cannot be thought, having regard to

His Honour's findings that he has rejected one of

those practices as responsible, he has done so

without considering whether it was obviously wrong.
The third error, which we submit he has made, which is perhaps a reflection of the first, is that

he has determined for himself what he thought the

proper practice was, rather than inquiring whether

no reasonably competent specialist could have acted

in conformity with that practice.

Could I just, by way of example, ask Your

Honours to look at a short passage in the judgment

of the Full Court of the Supreme Court of South

Australia in F v R, (1983) SASR 189. That was a

case in which there was a tubal ligation, referred

Rogers(2) 20 28/4/92

to from time to time in His Honour's judgment as a

"tubal litigation", and the question was whether
the doctor was under a duty to disclose to the

plaintiff the prospect that that operation would

not be a success. The conclusion was that the

failure of the medical practitioner to inform the

woman of the remote possibility of the operation

being unsuccessful was not negligent.

If I may direct Your Honours' attention to

page 196, at about point 7, His Honour said:

It is for the Court to decide what a careful

and responsible doctor would explain to the
patient in the circumstances, and I do not
regard as decisive the opinions of the medical

witnesses on the point or the existence of a

practice of non-disclosure in a section of the
profession. If the Court thought that that
practice involved a failure to exercise

reasonable care towards the patient, I would regard it as its duty to give effect to that

view. Indeed I am of opinion that the better

practice, and that which accords best with the

rights and interests of the patient, is that

adopted by those doctors who do warn of the

possibility, however, slight, of subsequent

pregnancy. But that is not to say that in

following the non-disclosure practice, the
appellant was in breach of her duty of care to

the patient. In the totality of the

circumstances which I have discussed, and

bearing in mind that the appellant was acting

in pursuance of a considered judgment as to

what was in the best interests of her patient

and of a practice followed by a substantial

part, probably the greater part, of those

medical practitioners practising in this area

of medical practice, I consider that her

failure to volunteer the information as to the

possibility of future pregnancy was not in

breach of the legal duty of care.

So we would submit that the approach which

His Honour adopted, in the circumstances in the

present case, was the antithesis of that approach
and what he did was to express a preference for one
body of professional opinion rather than another,
instead of addressing himself to the correct

question.

GAUDRON J: Before you leave that case, or are you leaving

it completely?

MR HELY:  Not now, Your Honour.

Rogers(2) 21 28/4/92

GAUDRON J:  On the same page, Mr Hely, His Honour says that

the position might have been different if she had

sought information and, of course, that same

thought permeates the judgment at first instance in

this case.

MR HELY:  Of course.

GAUDRON J: That suggests that the duty does not arise so

much out of treatment and consultation, as out of

the demand for information.

MR HELY:	I would submit that - - -
GAUDRON J:	I am at a loss to understand, if you put it in relation to professional expertise, how the seeking
of information changes the position.
MR HELY:	The way in which I seek to put it is that the

seeking of information and, indeed, if you like,
the nervousness of the patient and a lot of other
matters, are simply part of the clinical situation

with which the doctor is confronted, and he has to

respond to that total situation.

GAUDRON J:  It must be on that argument that you can deny

information.

MR HELY:  The courts recognize that in some circumstances

you can.

GAUDRON J:  You can lie?

MR HELY: In some circumstances, yes.

GAUDRON J: What is the rationale? I fail to understand how

in law the duty can differ, assuming that you are

permitted to lie, provide wrong information, how
the duty can differ according, not to the state of
mind or the assessment of the statement of mind of

the patient but according to whether or not she -

there seems to be a lot of she's in this area - is

sufficiently articulate and well informed as to ask

the right questions?

MR HELY:  I would submit that that is not the basis on which

the cases proceed. The question was, ultimately,

one of reasonableness and one has to simply decide

what is reasonable given the total situation.

GAUDRON J: What you say, the standard of care varies or may

vary depending upon the inquisitiveness of the

patient?

MR HELY:  No, the standard of care, in effect, remains

constant, but the inquisitiveness of the patient is

simply one of the factors that one builds into the

Rogers(2) 22 28/4/92

equation in determining what is a reasonable

response to the situation with which one is

confronted.

GAUDRON J: Yes, but it is not critical because you may lie.

MR HELY: Your Honour puts to me the question of lying which

is, of course, an extreme illustration but if I can

respond to it, let me take as an extreme case, as I

would respectfully submit Your Honour's question

is, assume to tell the truth would kill the

patient. That must, in that very extreme

situation, justify withholding the truth.

GAUDRON J: But, I mean, why does one need to justify

withholding the truth on this approach?

MR HELY:  Because what one is exercising is reasonable care

having regard to the patient's welfare.

GAUDRON J:  I am sorry, it is probably my difficulty, I just

cannot see how the duty changes, depending upon

whether you ask the right question or either the

duty or the standard changes.

MR HELY:  I do not submit that either the duty or the

standard changes, but I do submit that it is simply

one of the factors that one takes into account in

determining what is a non-negligent response. I

cannot, I think, put it any differently from that.

Might I take Your Honours to the decision of the

Court of Appeal in this case.

BRENNAN J: Before you go to it, could I just ask you one

other question, Mr Hely. When you have got a

problem of diagnosis and treatment as being alleged to be the negligent cause of damage, you have got a

direct causal relationship between what is done or

omitted to be done on the one hand, and the damage

on the other - you have got a ruptured blood vessel

or whatever it might be - but when you are talking

about advice, it is a different causal

relationship, is it not?

MR HELY:	Yes.
BRENNAN J:	So you are looking at a question of whether or

not a consent to something which has in fact

produced, without any supervening negligence, an

unfortunate result is to be traced back to the

failure to give the information.	Why does Bolam
have anything to say to that?

MR HELY:  Because there are the two questions, breach of

duty and causation, one does not get to questions

of causation unless one first comes to an

Rogers(2) 23 28/4/92

affirmative conclusion on the question of breach of

duty.

BRENNAN J:  I suppose that raises another question. Does

one ever come to a question of breach of duty unless one answers the question of causation? After all, it is the damage which gives rise to the

cause of action. What has caused the damage?

MR HELY:  The judge found in the circumstances of the

present case that had this lady been informed of

the risks, she would not have undertaken any

operation, and in that sense that provides the

causative link. But we would submit that it gives

no assistance or throws no light on the anterior

question of breach of duty.

BRENNAN J:  The breach of duty must be defined in terms

which affect the giving of the consent because that

is the causal link, is it not?

MR HELY:  Yes. Whether it is expressed in terms of giving

consent or submitting to the operation, yes.

BRENNAN J:  In other words, it is the attitude of the

patient which is the nexus between what happens in

the consulting room and the damage that ultimately

ensues.

MR HELY:  As Your Honour puts to me, it is the fact that she

consents to and undergoes the operation.

BRENNAN J:  Where is there room for some professional

expertise in the question of whether or not this

patient should consent to this operation? It is a

question for the patient.

MR HELY:  The question of whether the patient should consent

is a question for the patient. The question as to

whether in the total clinical situation with which

the doctor was confronted he should have discussed

with her the question of sympathetic ophthalmic, we

submit, is a different issue.

BRENNAN J:  Why is it that you come back to a total clinical

situation? What is there about that global term

which takes away from the analysis that what is

important is whether or not the patient has been

given sufficient information to make a proper

consent?

MR HELY:  I would submit that the true question is not

whether the patient has been given sufficient

information to make a proper consent but whether,

in giving such information as the doctor did, he

was exercising reasonable care. And whilst ever

one introduces the question of "reasonableness" or

Rogers(2) 24 28/4/92

"reasonable care", one is not talking in terms of

objective sufficiency but of what the exercise of
reasonable care would require in the particular
circumstances. It is not, in effect, an absolute

question or a necessarily objective question; it is

simply what the exercise of reasonable care

required in the particular circumstances.

BRENNAN J: Yes.

MR HELY:  Would it be convenient to come to the decision of

the Court of Appeal?

MASON CJ: Yes.

MR HELY: Perhaps if I could come first to the judgment of

Mr Justice Mahoney. His consideration of the

question commences, perhaps, at page 932, at about

line 25, where he discusses the Bolam principle.

At page 933, at about line 10, he says that:

the Bolam principle does not apply, of course,

in relation to matters which do not involve

(as I shall describe it compendiously) medical

expertise.

We would not quarrel with that proposition. At

about line 15, he says:

if it is clear to the medical practitioner
that the patient wishes to be told, then

(subject to what I shall say) the doctor is in

breach of his duty to her if he does not tell

her that which she wishes to know.

We submit that that puts the matter too highly, for

the reasons that I put in response to His Honour

Justice Brennan's question, that the issue is not

an entitlement to be told; the issue is an

obligation to exercise reasonable care in telling.

At about line 20, His Honour looks at the

justification for the principle. At page 934,

between lines 10 and 15, he points out that:

What he -

the doctor -

is asked to deal with may involve not judgment

or prediction but a matter of settled fact.

Could I interpolate that that may well be so, but it is a comment which has no practical application

to the circumstances of the present case because on

no view of the evidence could it be suggested that

Rogers(2) 25 28/4/92

the respondent was seeking information of a

statistical kind.

Page 935, at the top of the page, His Honour came to the conclusion that:

specific justifications apart, I do not see

the Bolam principle as applying to matters

which, in this sense, do not involve medical

expertise.

Whilst His Honour, I think, never expressly says so

in terms, the whole flavour of his judgment is that

he did not regard the circumstances of the present

case as involving questions of medical expertise,

and therefore he thought that the Bolam principle,

whatever its other application, it had no relevant
application in the circumstances of the present

case. And I have already put to the Court the

submissions which we make on that matter.

Your Honours, at page 936, lines 15 to 20, His Honour says this:

This is, in my opinion, a case in which the plaintiff made clear to the defendant her

desire for relevant information.

Your Honours, that observation, and observations

like it, cannot, in our respectful submission,

arise above the evidence upon which they are based.

We do not challenge the primary evidence, because

on this question it consists substantially, if not

entirely, of the evidence of the defendant himself.

But, we would submit, that, to put the matter in

the way in which His Honour has put it, is

certainly to oversimplify to the point of leading

into error the effect of the evidence which the

trial judge accepted.

McHUGH J: What about the concurrent findings of fact, (a)

and (b), which appear at pages 948 and 949?	Do you
accept those?

MR HELY:  We certainly do not dispute, as we cannot

dispute, the primary findings of fact.	I have
taken Your Honours to those.	We do submit,

depending upon how one reads what is at the pages

Your Honour has directed my attention to, that they

rise above, and are not supported by, the primary

facts.

McHUGH J: These are concurrent findings; these are the

findings of the trial judge on which the members of

the Court of Appeal agreed.

Rogers(2) 26 28/4/92

MR HELY:  But concurrent findings of fact is, of course, the

source of the problem for me, but it is not, I

respectfully submit, an insuperable problem. This findings of primary fact, as to whether these

inferences that one draws from those facts are

justified or not justified. That, I would

respectfully submit, is consistent with the

decision of this Court in The Commonwealth v

Introvigne, (1982) 150 CLR 258, in particular at page 262 in the judgment of Mr Justice Gibbs, and at page 274 in the judgment of the present

Chief Justice.

At page 262, really it is the totality of

Mr Justice Gibbs says on that page, and in the

judgment of His Honour Mr Justice Mason, at

page 274, at about point 3, His Honour the

Chief Justice deals with the same question. So we

would submit that, whilst what Your Honour puts to
me is indicative of a problem, it is not an

insuperable problem; certainly not in a case where

the primary findings as to what was said, cannot be

open to dispute, and the inferences that one draws

from those findings, are inferences that this Court

can draw, as well as a trial judge, paying proper

respect to the views of the trial judge and of the

Court of Appeal.

I am reminded that in the decisions of the

House of Lords in Maynard and Whitehouse,

Their Lordships express views which are in

conformity with the views expressed by this Court

in the case to which I have just taken the Court.

If I could come then to the judgment of

Mr Justice Handley, in which Mr Justice Priestley

concurred, I should say this to Your Honours: at

page 950, at line 20, this statement appears:

The appellant did not challenge any of the

primary findings on this issue -

that is to say, the negligence issue. I did not

appear in the Court of Appeal but my instructions
are that a submission was put to that court to the
effect of the submission I put to Your Honours that
those findings have to be construed in the light
of, and constrained by, the actual primary findings

of fact.

If I could come then to page 953, His Honour

says that:

The doctor's duty to exercise reasonable care in explaining proposed surgery to the patient,

and in answering the patient's questions is

Rogers(2) 27 28/4/92

not a separate and distinct duty apart from or

in addition to the duty to exercise reasonable

care in diagnosis and treatment.

To that extent, Their Honours appear to accept the

proposition enunciated by Lord Diplock and comes to page 960, at about line 10, Their Honours

says that this is a:

case which is not governed, and which ought
not to be governed by the Bolam test.

At 964, line 26, continuing over to the top of 965, Their Honours say that, in effect, there is

a distinction between advice and diagnosis and

treatment which, we would respectfully submit, is

inconsistent with what they had earlier said at

page 953.

At 955 and following, Their Honours advert to

Shirt's case and one can see from a reading of the

whole of the judgment that what Their Honours did

was, effectively, to apply that case to the

reference to the warning of Sir Garfield Barwick in

Maloney v Commissioner for Railways, (1978) 52 ALJR

292 at 292-293. That case is not on Your Honours'

list of authorities unless my learned friends put

it on.

MASON CJ: Well, we have it.

MR HELY:  It is simply the statement that:

Rogers(2) 44 28/4/92

It is easy to overlook the all important

emphasis upon the word "reasonable" in the

statement of the duty.

It is a trite proposition but -

Perfection or the use of increased knowledge
or experience embraced in hindsight after the
event should form no part of the components of

what is reasonable in all the circumstances.

The second proposition that we wanted to

submit is provoked by paragraph 5 of my learned

friend's written submissions, that Mrs Whitaker was

a patient who asked searching questions about the

possible side effects of an elective operation. finding, which is recorded in the decision of the

Court of Appeal on page 949, at the paragraph

numbered B, our submission is that what is in

paragraph 5 of the written submissions is an

exaggeration or distortion of what appears on

page 949, which itself has to be confined by and is

an exaggeration of the primary evidence upon which

it is based.

What His Honour says in paragraph (b) is that

it is incessant questioning as to a range of topics

amongst which was included at the topic of risks,

that is, consistent with the proposition, perhaps,
that 100 questions were asked, one of which related

to the matter of risk. And, if one looks at the

principal evidence upon which these inferences are
based, we would respectfully submit that it

supported that conclusion.

The third thing that I wanted to put to

Your Honours is that Mr Justice McHugh's

hypothetical question, "What will happen, doctor?",

is closer to the facts of this case than the more

extreme version put by my learned friend.	"What
will happen, doctor?", necessarily involves a

medical judgment as to what response one should

give to the plaintiff from the whole range of

responses which are open upon that topic. "If such

a question is not a question, tell me every risk,

no matter how remote", and what it seeks is

information from the doctor as to the likely

consequences of the operation. One such

consequence is not blindness, the prospects of

which are negligible, or almost negligible. "What

will happen, doctor?" is not terribly remote, if I

may say, even though we respectfully submit it,

from the passive question which this patient asked

in response to the doctor's warning, "What are

they?".

Rogers(2) 28/4/92

The next matter that I wanted to put to

Your Honours was that the Privy Council decision in Edward Wong, we submit, throws no illumination upon

the present problem. That was a decision by a
specialist tribunal of lawyers upon the conduct of

lawyers able to come to a conclusion, without the

assistance of expert evidence, that the practice

that was relied upon was obviously wrong. There

was simply no evidence before the board in that

case that the practice was responsible or anything

of that nature.

Those are the submissions that we would seek

to put· in reply, if the Court pleases.

MASON CJ:  Thank you, Mr Hely. The Court will consider its

decision in this matter and will adjourn until

10.15 am tomorrow.

AT 12.49 PM THE MATTER WAS ADJOURNED SINE DIE

Rogers(2) 46 28/4/92