Rogers v Whitaker

[1991] HCATrans 281

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S79 of 1991

B e t w e e n -

CHRISTOPHER ROGERS

Applicant

and

MAREE LYNETTE WHITAKER

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 OCTOBER 1991, AT 12.43 PM

Copyright in the High Court of Australia

Rogers 1 4/10/91

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

MR G.O'L. REYNOLDS for the applicant. (instructed

by Blake Dawson Waldron)

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

with my learned friend, MR E.A. DAY for the

respondent. (instructed by Henry David York)

BRENNAN J: Yes, Mr Hely.

MR HELY:  If the Court pleases, the context in which this

application comes before you is that there was a

finding, not challenged on appeal, that there was

no negligence on the part of the doctor in

recommending or carrying out the operation on the

plaintiff's right eye. The disease contracted by

the left eye, sympathetic ophthalmia, is an

extremely rare occurrence. Statistically it

occurred in about 1 in 14,000 cases of operations

of this type.

BRENNAN J:  Is that right? I thought it was more frequent

when there was a penetrating injury.

MR HELY:  There is some support for that. I am told that in

the Court of Appeal it was agreed that the

appropriate statistic to adopt was the 1 in 14,000

statistic.	I will just check the reference to
that.

BRENNAN J:  My recollection is wrong. One in 14,000, I

thought, somewhat more in the case of a penetrating

injury. Page 166.

MR HELY:  Yes, page 166, lines H to J. That is the finding

of the Court of Appeal. One additional factor not

referred to by the Court of Appeal, of which
account perhaps has to be taken, is that it is not
every case of sympathetic ophthalmia which leads to

blindness. Blindness results in but a further

fraction of the cases in question. Hence, if one

has to describe the risk in terms of the risk of

blindness, one has to use a statistic far greater

than the 1 in 14,000 statistic.

The next fact which forms part of the context

is that the applicant's evidence was that

sympathetic ophthalmia was one of those

exceptionally rare diseases which is always just at
the back of one's mind, but the clinical situation

with which he was confronted just did not cause it

to come to mind.

BRENNAN J:  I do not understand what that means, Mr Hely.

MR HELY: Perhaps if I could take Your Honours to the

evidence first. It is on page 44. One, I would

Rogers 4/10/91

submit, has to perhaps scan the whole of that page

and up to and including page 45, line D. Perhaps

if I could, having directed attention to that

passage, give a specific answer to Your Honour's

question. It, I submit, means this: firstly, it
is a condition of which I have heard; second, it is

a condition which one comes across in the rarest of the cases; third, in those very rare cases where it

is encountered, it is in the context of recent

trauma to the eye, that is to say something which

happened in the last two or three days, not

30 years ago.

BRENNAN J: But this was going to be a further trauma to the

eye by the surgery.

MR HELY:	To a different eye.
BRENNAN J:	No, the same.
MR HELY:	I am sorry, to the same eye, yes, Your Honour.
BRENNAN J:	It is nothing to the point that 40 years ago she

had this penetrating injury. She had not got

sympathetic ophthalmia from that, but here is a

complication known to follow trauma to the eye upon

which he was about to operate.

MR HELY:  But in those circumstances where it had previously

been encountered it was encountered in the case of

a recent previous trauma so that what gives rise to

the problem is successive traumas.

BRENNAN J:  He was about to inflict the trauma by the operation.

MR HELY:  Yes. And that operation may cause one to think

about sympathetic ophthalmia if, at the time it was

conducted, there had in the recent past been

another trauma to the eye. So that it is the act

of operating on a previously and recently

traumatized eye which is the usual case in which

this problem can be encountered.

The next fact that I submit forms part of the context is that the applicant, although an

experienced surgeon in his field, had never met or

spoken to a surgeon in the United States or

Australia who had himself encountered a case of

sympathetic ophthalmia. There was a body of

responsible professional opinion that such
questions as were asked by the patient did not

require or call for an explanation of the risk of

sympathetic ophthalmia. Page 68 J to M contains

that finding.

Rogers 3 4/10/91

TOOHEY J: Is that finding made in the light of the

statistical material, Mr Hely, or what is it that

leads to the conclusion that the questions asked by

the plaintiff did not require an explanation?

MR HELY:  Evidence of his peers as to whether they would or

would not have explained this condition in response

to the questions of the type that were being put to

the applicant.

TOOHEY J: That only pushes the area of inquiry one step

along. Why would not those doctors have explained

to a patient who asked the sort of questions that

the present respondent asked? If it was not
related to the unlikelihood of such a condition

developing, what else could it be related to?

MR HELY:  The type of question that was put to the doctor

was in the nature of a generalized inquiry. The

evidence of doctors was that if that type of

generalized inquiry was made of them in the case of

a patient such as this, it would not come to mind

to mention to that patient the risk of sympathetic

ophthalmia.

TOOHEY J: As to the unlikelihood of it occurring or what?

I still do not quite understand the basis of the

answers that were given.

MR HELY:  I suppose if there is a generalized question put

to a doctor, the number of conditions which would

require mention in response to that generalized

question could be quite numerous. It is not just
sympathetic ophthalmia but it is the risk of
anaesthetic death and the risk of any other serious

matter that can occur during the course of surgery.

BRENNAN J:  Was there any other condition that was likely to

have occasioned blindness?

MR HELY:  Page 99 E to H there is a reference to this

matter. I have had extracted from the evidence in

a summary form the evidence that was before the

trial judge on the type of contingencies that could occur producing serious consequences, many of which

were more likely to occur than sympathetic

ophthalmia.

TOOHEY J: That is really what I was inquiring from you

earlier. Was it because of the unlikelihood of

such a condition developing that it did not come to

the mind of the doctor to mention it to the

patient. Perhaps the answer is slightly more

complicated. It is the unlikelihood and the

greater likelihood of other conditions.

Rogers 4 4/10/91

MR HELY:  So far as this particular doctor is concerned, he

says that in effect because of its rarity, because

the type of situations in which it is likely to

occur were different from the situation with which

I was confronted, whilst I had it at the back of my

mind it just never came to the forefront of my mind

as being something which was relevant to the

clinical situation that I was being asked to deal

with.

BRENNAN J:	Mr Hely, looking at these contingencies that you have handed up, leave aside the particular
condition of sympathetic ophthalmia, for the most
part these are contingencies which relate to things
that can go wrong with the eye that is being
operated on.  Was anything said to the patient,
without using technical terms, that there was the
slightest risk of bilateral blindness?
MR HELY:	No.

BRENNAN J: Well, it is not a question of sympathetic

ophthalmia or bilateral occipital cortical

infection or anything else, it is was she told that

she could possibly go blind.

MR HELY:  No, she was not.

BRENNAN J: That is what you have to address, is it not?

MR HELY:  Yes. I was not meaning to, by the submissions I

had so far put, intending to shirk that position,

but yes, that is what I have to address. Would

Your Honours prefer me to continue to do so now or

at 2.15?

BRENNAN J:  Perhaps you could do that later in the day.

There is one question that I propose to ask you, and perhaps I could mention it now so that you can

give it some thought, that is whether Bolam's case

has anything to say about giving information to

patients or whether it relates solely to questions

of prognosis, diagnosis and treatment.

MR HELY:  Can I say two things in relation to that: first,

it was itself a failure to warn case; and second,

that is in effect the special leave issue which we

seek to put forward for the Court's consideration.

BRENNAN J:  We will adjourn till 2 o'clock.

AT 12.58 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Rogers 4/10/91

UPON RESUMING AT 2.03 PM:

MR HELY:  In response to a question that Your Honour

Mr Justice Brennan put to me before lunch could I

direct attention to page 176 between the letters D

and E which indicates that:

On the great balance of the expert evidence -

sympathetic ophthalmia -

was the only complication which threatened the

sight of her good eye -

Then to page 162 between the letters D and E which

contains the relevant particularization by the

respondent as to how it put its case. I direct

attention to those matters, not because they are of

great moment in the determination of this

application but because I think something which I

said to Your Honour in response to Your Honour's

question before lunch was slightly inaccurate.

Bolam was a case in which the negligence

alleged against the doctor was both negligence in
the manner of his treatment and negligence in

failure to warn. There was evidence before the

court that it was the practice of the doctors

called by the defendant in that case not to warn

their patients of the risk of treatment which they

believed to be very small unless they were

specifically asked. The witnesses who were called

by the plaintiff considered that it would not be

right not to warn of the risk of treatment and in

that context the court held that with respect to

the failure to warn the question was whether the
doctor had fallen below a standard of practice

recognized as proper by a competent body of

professional opinion and the fact that there was

another body of competent professional opinion that

took a different point of view was beside the

point.

Now, in this case the Court of Appeal accepted

that in matters of diagnosis and treatment the

Bolam test was applicable. They declined to apply

that test to the case of advice, explanation or

warning, and what might be called the special leave

point is whether the Bolam test applies to that
part of the doctor's activities as consists of
explaining to a patient the risks involved in

surgical procedures or of warning him of those

risks.

Rogers 6 4/10/91

This issue was considered by the House or

Lords in Sidaway v Board of Governors of the

Bethlem Royal Hospital and perhaps I could hand up

copies of that decision. That was a case in which

the patient relied solely on the failure of the

surgeon to disclose to her or to explain to her

risks inherent in the operation. It was not a case

in which there was any specific request for

information, hence so far as the facts of the case
are concerned it is restricted to the question as
to whether the doctor owes a duty to volunteer.
Different opinions upon that question were

expressed by different members of the House. Could

I go first to Lord Diplock at page 893. Between

the letters D and E His Lordship says that a

doctor's activities should not be dissected into

different components such as diagnosis, treatment

and advice with different criteria being applied to

each in terms of what is required to satisfy the

duty of care. He says it is a distinct duty and a

single standard applicable to each of the medical

functions. Then on the same page, letter H, he

says that the Bolam principle is:

applicable to every aspect of the duty of care
owed by a doctor to his patient in the

exercise of his healing functions -

as a doctor. So that, for present purposes,

His Lordship says there is a single duty. One does

not compartmentalize it and the criteria applicable

to each aspect of it are the same and the Bolam

principle is applicable. If what His Lordship says

represents the law for this country then we would

submit that in the light of the finding to which I

took Your Honours before lunch at page 68, this

appellant would be entitled to succeed. At

page 895, Lord Keith expressed his agreement with

Lord Bridge and at page 900, between the letters C and D His Lordship says that the Bolam test is the

test which is primarily applicable in the case of

alleged negligent failure to warn, subject to a

qualification which appears towards the bottom of

that paragraph that:

disclosure of a particular risk was so
obviously necessary to an informed choice on

the part of the patient that no reasonably

prudent medical man would fail to make it.

And the examples which he gives between the letters

F and G helps to illustrate the type of situation

which His Lordship had in mind. That, of course,

cannot be the case here because there was a finding

from the trial judge that but for the inquiry, it

would have been reasonable not to disclose. So the

position at which one stands at the moment is that

Rogers 4/10/91

three members of the House of Lords favour the

application of the Bolam principle to cases of

advice subject to an exception which, for present

purposes, is immaterial.

Lord Justice Scarman took an entirely

different approach. His Lordship thought that the

American doctrine of informed consent should be

incorporated into the law of England and his

conclusion on this aspect of the matter appears at

page 889G to the bottom of that page.

Lord Justice Templeman, who does not refer specifically to Bolam, on page 904 at about the

letter B, indicates that he does:

not subscribe to the theory that the patient

is entitled to know everything nor to the

theory that the doctor is entitled to decide

everything.

Between the letters F and G he talks in terms of

the duty of the doctor to provide sufficient
information to the patient to enable the patient

"to make a balanced judgment". What is, of course,

in any particular case suff~cient information is

itself a matter of professional skill and judgment

and whilst His Lordship does not refer to Bolam we

would submit that it is consistent with what he

says that he is adopting a Bolam-type approach.

DAWSON J: Is there anything in the speeches there which

deals with the situation where the patient has

impliedly requested to know all risks?

MR HELY: There are statements to the effect, if I could

just summarize them, that if a patient asks a

question, no doubt the doctor will tell him what he

wants to know. He will answer truthfully.

DAWSON J: That takes it outside the Bolam test.

MR HELY: That is the question which, I submit, this Court

has to determine.

BRENNAN J: And the Bolam test is there in order to provide,

as it were, some touchstone for the determination
of the question whether the doctor has failed to
take reasonable care in the circumstances of the

case, is it not?

MR HELY:  Yes.

BRENNAN J: And one of the relevant circumstances of the

case is the relationship between the patient and
the doctor, so far as relates to the patient's

inquiry into the risks of the treatment proposed.

Rogers 8 4/10/91

MR HELY:	Yes.
BRENNAN J:	So that really it is not a question of whether

Bolam is a general principle of law which the questions can take the case outside of, it is a

question of looking at Bolam as one factor and the

actual circumstances of the case as another.

MR HELY:  Except that we have a finding here at page 68 that

in the particular circumstances of this case,

taking into account the specific questions that

were asked by the patient of the doctor, that there

was a body of responsible professional opinion that

the questions asked of the plaintiff did not

require an explanation.

DAWSON J: But that is taking it a long way, is it not?

MR HELY:  I submit that I am taking it no further than is

proper.

DAWSON J:  You cannot have expert evidence as to whether the

questions require an answer, surely. I mean, it

cannot be a matter of professional practice; it

must be a matter of decision in the individual

case.

MR HELY:  One talks in terms of a clinical situation and I

suppose a clinical situation consists of what one

sees, what one feels, what one is told and what one

is asked. When a doctor is in that clinical

situation the question is whether proper

professional practice, taking into account all the

components of the clinical situation, requires him

to warn of sympathetic ophthaimia or whether it

does not.

DAWSON J: That is carrying it on. I mean, the Bolam test

really applies to treatment. It is extending it in
a way that could be questioned to the giving of

advice, but then when it is extended to the

situation as to whether a question asks about

particular things or not, well, that is taking it a

long long way, is it not?

MR HELY:  To which my respectful response is, firstly, Bolam

was a case of advice as well as treatment. Second,

the Bolam principle was applied both to treatment

and to advice. Third, the House of Lords in

Sidaway says one does not compartmentalize these

functions. Fourth, the majority of the House of

Lords in Sidaway applied Bolam to the case of

advice. Fifth, the decision of the Court of Appeal

in Blyth, if I could hand up copies to the Court,

if I could take Your Honours to page 21 to the

second-last line on that page:

Rogers 9 4/10/91

The question of what a plaintiff should be

told in answer to a general enquiry cannot be

divorced from the Bolam test any more than

when no such enquiry is made. In both cases

the answer must depend upon the circumstances,
the nature of the enquiry, the nature of the

information which is available, its

reliability, relevance, the condition of the

patient, and so forth. Any medical evidence

directed to what would be the proper answer in

the light of responsible medical opinion and

practice - that is to say, the Bolam test -

must in my view equally be placed in the
balance in cases where the patient makes some

enquiry, in order to decide whether the

response was negligent or not.

Then if I could just take it a little further.

DAWSON J:  I was just going to say for my own part, I find

that very difficult to accept. It is not a matter

of medical expertise or even practice as to how one

goes about answering questions. It is not

something on which you - - -

MR HELY:  If I could just continue for the next part where

he refers to Sidaway and concludes that Sidaway

suggests to him:

that the Bolam test is all-pervasive in this

context.

My more specific response to Your Honour's question

is really that it is a question of professional

skill, professional knowledge and professional

judgment how should a medical person react when he

is confronted with a total clinical situation.

BRENNAN J:  Mr Hely, I can understand readily the

proposition that it is a total clinical situation

in this sense that one might, for example, picture

on being made aware of the possibility of a most	a patient who is overly anxious and would perhaps,	remote risk,· shy away from treatment which is
almost essential for the patient's welfare, and in
that sense one can readily understand that the
Bolam test in a sense is all pervasive. But it is
only all pervasive in the sense to which it is
directed towards the appropriate medical treatment
of that patient. If questions are asked seeking information for the purpose of making an informed and rational decision and the manner of the asking of the questions and the circumstances of the case are not such as to indicate that the giving or withholding of information has any therapeutic
significance, then it is difficult to see why Bolam
would apply in such a case.

Rogers 10 4/10/91

MR HELY:  I put entirely to one side the therapeutic

privilege question, but it is still a question of
professional skill and knowledge or the level of

appropriate professional skill and knowledge as to

whether what one sees and what is asked of one

should evoke a particular response.

DAWSON J:	Why is that, Mr Hely?
MR HELY:	Because one is not being asked a pure question of

fact in the sense of statistics.	One is not being
asked, what do the statistics - - -

DAWSON J:  One is being asked for information, and I could

understand that it is a matter of professional

knowledge to be in possession of that information,

but I really, except in the circumstances to which

His Honour referred, do not see why it is a

question of professional expertise as to whether

one should proffer that information in answer to a

question.

MR HELY:  Because computation of risk in the medical arena

is itself part of medical expertise. One has to

take in information from a number of sources and to
assess its relevance in relation to the situation

with which one is confronted.

DAWSON J: I do not understand that, if I may say so. If

the patient is asking about risk and really wants

to know any appreciable risk at all, then is it a

matter of professional expertise to say, I will
tell her where the risk is 1 in 10,000 but I will
not tell her where the risk is 1 in 14,000. I do

not see any professional expertise in that.

MR HELY:  It is not a case in which there is a deliberate

decision taken not to tell her unless she presses

the right button. The question is whether what she

says and what he sees ought to induce in his mind

that this is, in the sense that Your Honour used

it, an appreciable risk.

DAWSON J: That is where I do not see where professional

expertise comes in. Knowing what the risk is, yes,

that is certainly so, but the response to the

questioning does not seem to me to involve any

expertise of a professional kind.

MR HELY:  One has to translate the abstract or the general

to the circumstances of a particular case. One

really has to draw upon one's medical knowledge and

experience to work out what is an appropriate

response to the situation with which one is

confronted and how one should, in the particular
circumstance, go about drawing upon that medical

knowledge and experience is a matter upon which

Rogers 11 4/10/91

one - is to be tested by reference to the standards

of one's fellows.

DAWSON J: What if you draw the conclusion from the

questioning that the patient wished to know any

possible risk?

MR HELY:  One has to judge, I suppose, what is conveyed by

that question. In a context such as the present, where there are only a couple of instances in the journals of this type of injury being caused by

sympathetic ophthalmia and where there was a

30-year gap between the initial trauma and the
operation, and it is also a situation in which the
doctor has not, either on his own account or in
discussions with his Australian and American

colleagues, come across anybody else who has

encountered such a case - - -

DAWSON J: I appreciate that, and one might come to the

conclusion that it was not negligent in the
circumstances to advise of this possibility, but I

do not see how the Bolam test helps you in that

situation.

MR HELY:  I would submit that the Bolam test does help,

firstly, because unless this Court declines to

follow them, the House of Lords and the Court of

Appeal in England say it does help.

DAWSON J: Subject to the nature of the questioning of the

particular patient.

MR HELY:  Yes.

Second, that wherever one is concerned with matters that have within them an element of

professional skill and judgment one has to have

recourse to some such test as the Bolam test in order to determine whether the practitioner has

acted as a careful practitioner would in comparable

circumstances. That is what the Bolam test is

intended to provide in a practical sense, whether

that which one would expect of reasonably competent his conduct in the particular circumstances meets fellows. The Bolam test was applied by the Court

of Appeal in New Zealand, consisting of five

members, in Smith's case, where there was a

specific inquiry of a doctor to which he responded
in effect with a pat on the head or a pat on the

back and said, "Don't worry, she'll be right." There was evidence from a group of responsible

practitioners that that was not appropriate

professional conduct and upon that basis he was

convicted of negligence.

At page 200 of the appeal book, really

continuing across to page 205, we have endeavoured

to put forward in a summary way the cases in which

Rogers 12 4/10/91

Sidaway has been followed in England to indicate the circumstances or the cases in which Bolam has

been applied in England and Scotland; on 202 to 204

we have referred to what we would respectfully

submit can be discerned as two lines of authorities

in this country pulling in opposite directions; on

205 we have referred to what might be called

expectations on the part of academic writers that

the High Court should give an authoritative

determination on this issue. We refer to these

matters simply to indicate that the matter is one of general public importance upon which there are differences of opinion and where the intervention of this Court is needed in order to settle what the

law is.

Could I come then to the decision of the Court

of Appeal. Mr Justice Priestley concurred in the
decision of Mr Justice Handley on page 168 between

the letters A to J. Mr Justice Handley appears to

accept as correct Lord Diplock's statement that one does not compartmentalize the various components of

a doctor's function and apply different criteria to

different components. But when one comes to

page 175, I to K, he comes to the conclusion that

this case is not governed by the Bolam test, and at

page 179, F to T, His Honour says that there is a

real distinction between diagnosis and treatment on

one hand and warning of the risks on the other, a

distinction which was apparently denied back at

page 168, B to K, to which I first took

Your Honours.

We would submit that it is unsatisfactory that

the Court of Appeal - or at least those members of

it who are directly affected by this submission -

should on the one hand be apparently purporting to

apply Sidaway and yet, on the other hand, denying

one of its essential features.

BRENNAN J:  Can I ask you to look at page 176 again and the

paragraph commencing at line L, "I confess to being

quite unable" et cetera, His Honour goes on there

to say that he:

cannot accept that the standard of care

required of the appellant by law can be

conclusively determined by the evidence given

by some of the experts -

et cetera. Is not His Honour saying there that all

things being equal, the view of professional opinion may be conclusive but where you have

special inquiries being made and not the slightest

justification for refusing to answer them, that

those facts take it beyond the resolution of the

Rogers 13 4/10/91

problem simply by reference to professional

opinion?

MR HELY:  I would submit not. If one goes to page 180

His Honour refers to Shirt's case and at M to P

applies it to the present situation. What, in our

submission, His Honour has really done is to put

the medical opinion to one side altogether and seek

to resolve the problem by the application of

Shirt's case to the facts as were found, without

recourse to or assistance from the medical opinion.

What His Honour has done in effect, or in its result, has been to prefer one responsible body of

medical opinion to another and if Bolam correctly

states the law that, in our respectful submission,

is impermissible.

BRENNAN J: That really raises two questions, does it not:

the first is whether by reason of the circumstances

to which His Honour refers at pages 176 and 177
Bolam is a conclusive test in the circumstances of the individual case; the second question - and it

seems to me as at present advised to be a distinct

one - is whether Wyong Shire v Shirt has anything

to say to the resolution of this case.

MR HELY:  Our submission is that Wyong Shire v Shirt has got

nothing to say as to the resolution of this case,

with all due respect to the Court of Appeal.

BRENNAN J: Even if one accepts that, there still leaves the

question of whether or not, as a matter of fact,

the non-response of the defendant to the inquiries

made by the plaintiff was negligent.

MR HELY: Yes, but if that is to be determined

BRENNAN J: And then we come back to the Bolam problem.

MR HELY:  We come back to the Bolam problem. My respectful

submission is that if Bolam is the law for this

country, and if special leave to appeal was

granted, then this appeal must be upheld. If Bolam

is not the law, then it would equally seem to

follow that it must be dismissed.

BRENNAN J: But am I right in saying that when you say "if

Bolam is the law" you do not restrict the operation of Bolam by reference to the peculiar circumstances of this case to which His Honour refers at pages

176 and 177?

MR HELY:  One takes into account the peculiar circumstances

of the case and one inquires as to how a careful

surgeon would respond to those peculiar

circumstances. One takes evidence from responsible

surgeons as to how they would respond to those

Rogers 14 4/10/91

peculiar circumstances and one comes up with the

finding on page 68 that I have taken Your Honours

to more often than perhaps I should. There is a

unanimity, as I understand it, in the evidence

given by medical practitioners on both sides, that

whatever their own practice, there is a responsible

body of professional opinion that would conclude

that in the particular circumstances of this case

there was no requirement for disclosure.

BRENNAN J: Now, what does that mean, "did not require"? Is

that a mixed question of fact and law because, if

so, that does not answer the Bolam test at all.

MR HELY:  I would submit that it is always very difficult to

construe, but this appears to be a finding of fact

made by concession.

BRENNAN J:	I suppose it depends on the language used by the doctors who gave the evidence.
MR HELY:	That is not something that one can examine with

any satisfactory result on a special leave

application.

BRENNAN J:  No, but it would be a regrettable thing if

special leave were granted and one found on appeal

that the questions asked of the medical

practitioners were along these lines, "Having

regard to those questions asked by the patient in

this case, doctor, do you think that the defendant

was bound to answer by informing her of so-and-so?"

MR HELY:  I am told that that is not the form that the

questions took. Unfortunately there is nothing in

the application book to which I can refer as an

example of the type of questions that were put

because they have - - -

BRENNAN J: Would it be possible for your junior to turn up

at least one question asked of one of the expert

witnesses which reveals whether or not he was asked

whether there was a body of professional opinion
which, having regard to questions of this kind,

would lead the doctor not to answer.

MR HELY:  Can I respond to Your Honour's question in two

ways: firstly, I suppose, one would have to have

regard to the type of questions that were put in

cross-examination which may or may not be

structured differently from the type of questions

that were put in-chief. Would Your Honour hear

from Mr Reynolds as to his recollection of the type

of question?

BRENNAN J: Have we a transcript?

Rogers	15	4/10/91
MR HELY:	I am sure we can find one.	It is just that it

might take a little time to go through it and

consult it. He tells me that he has a clear

recollection of the course that the questioning

took at trial.

BRENNAN J: Yes, we will hear him.

MR REYNOLDS:  Your Honours, I think the question went along

these lines in the cross-examination. I do not

remember the questions that were put to our experts

in-chief but the question that was asked in cross-

examination was along these lines, and almost

exactly along these lines: doctor, will you agree

with me that there are, or there were in 1984,

reasonably competent and responsible practitioners

who would only have mentioned the risk of

sympathetic ophthalmia in the circumstances like
that in this case in the situation where the

patient asked, "Is there any risk of anything

happening to my good eye as a result of an

operation on my bad eye?". Effectively, it was put

in that form or something very similar to it and in

each case all of the expert witnesses for the

plaintiff agreed with that proposition. They came

from a variety of different States and a variety of
different countries. They all agreed, in effect,

in answer to that proposition that there were

reasonably competent and responsible practitioners

that they knew who, in circumstances like this,

would only have mentioned the risk of sympathetic

ophthalmia if that particular specific question had

been asked. That is the form of the question.

BRENNAN J: Thank you.

MR WHEELAHAN:  Mr Hely is asking me for a concession,

Your Honour.

MR HELY:  No, just a straight answer to a simple question.

MR WHEELAHAN:	I think it is pretty accurate, Your Honour.
BRENNAN J:	I think you can proceed, Mr Hely, and we will

call on Mr Wheelahan later.

MR HELY:  I apologise to Your Honour. That is all I can say

in response to Your Honour's specific inquiry.

Could I come then to the next aspect of the Court

of Appeal's decision to which I would seek to

direct attention.	If I could just complete the
matter I had almost left.	I had directed attention

to the fact that Mr Justice Handley and

Mr Justice Priestley appear to approbate and to

reprobate when it came to the adoption of Sidaway.

At page 147, in the judgment of

Mr Justice Mahoney, between the letters Q and V,

Rogers 16 4/10/91

His Honour took the view that Bola.m, as interpreted by Sidaway, was not as general as the defendant

there submitted and if it would apply in those

general terms, he thought that it should not be

followed. The specific reference that His Honour

makes to pages 893 to 894 is to the judgment of

Lord Justice Diplock where he says that Bola.m

applies to all aspects of the doctor's duty. And

to the extent to which Sidaway is authority for

that proposition it was Mr Justice Mahoney's

opinion that Sidaway should not be followed.

I had already taken Your Honours to page 180,

N to P, where Mr Justice Handley sought to resolve

Shirt's case. concerned with quite a different question. It is

the present problem by reference to

not concerned with the question as to whether one should disclose a foreseeable but remote risk but whether one should take steps to guard against it.

The type of reasoning process which this Court

adopted in the second of those situations, we would

submit, is of no or no necessary relevance when one

comes to consider the first.

At page 174, P to s, Their Honours accept as

applicable the Bola.m test in determining whether
the doctor has achieved the requisite level of

professional competence; whether his standard of

skill and knowledge is that which is to be expected

of a person in his position. The doctor in this

case said that the clinical situation with which he

was confronted did not bring sympathetic ophthalmia

from the remoter reaches of the back of his mind to

the front of his mind. Whether it should have, in

our respectful submission, is a matter which bears

upon his skill, knowledge and ability which must be

determined in accordance with Bola.m principles. So

that we would submit that one cannot, just because

it is a request for information or just because it

is a generalized inquiry, assert that Bola.mis

inappropriate as the test because it is necessarily

bound up within it.

Mr Justice Mahoney, at page 148T indicated,

continuing over to page 149D, that responses to

questions may, in many circumstances, involve the

application of matters of judgment, prediction,

experience and the like. He contrasted that, at

page 149 M to Q with a mere request for factual

information such as statistics and the like where

no question of judgment, experience, skill or

knowledge is involved. We would submit that in the

context of the current case what the doctor's
response to the situation with which he was
confronted should have been necessarily involved

matters of skill, judgment, knowledge and

Rogers 17 4/10/91

experience and that it is appropriate that those

matters should be resolved by reference to the

Bolam test.

Whether that test should or should not be

the law of this country is a matter upon which

opinions may legitimately differ. There is a

respectable body of judicial opinion, if I could
borrow a phrase, which suggests that it is

appropriate, and we would submit that it is proper

that that question should be determined by this

Court and that this case is an appropriate vehicle

for the resolution of that issue.

Those are our submissions, if the Court

pleases.

BRENNAN J: Thank you, Mr Hely.	Yes, Mr Wheelahan.
MR WHEELAHAN:	Your Honours, the respondent in the case was

aged 47 when she first encountered the applicant

and she had been blind in one eye for four years. She was advised to undergo surgery which, on any

view, was purely elective; in respect of which

there was no adverse consequence whatsoever if she

did not undergo it; that the surgery carried with

it a risk, albeit small, of sympathetic ophthalmia;

that if that risk eventuated it was conceded by

every medical practitioner that it was the worst

result in ophthalmic surgery; every doctor asked,

Your Honours, conceded that had she asked the right

question she should have been told of the risk of sympathetic ophthalmia and therefore, the risk of

blindness. The question from the present

applicant's point of view was resolved in this way:

this lady of no particular sophistication or

education did not have the capacity to ask the

right question and therefore was not entitled to

the information so vital to her choice.

Your Honours, Mr Bolam never asked a question of the treating surgeon. Mrs Sidaway never asked a

question of her treating surgeon. All those

judgments in Bolam and Sidaway related to

specifically the question of volunteering unsought

information. Your Honours, my learned friend has taken you to some passages in Sidaway; may I take

you to but a few more.

Lord Diplock discussed, and he gave the

leading judgment for the majority, the question of

whether or not, if asked, there was a different

consideration. Of course, Their Lordships were not

dealing with such a factual proposition. At

page 891 line B His Lordship said:

Rogers 18 4/10/91

There is no evidence in the instant case

that the patient asked the neuro-surgeon a

single question about whether there were any
risks involved in undergoing the operation

that he was proposing for her, or if there

were, what were the consequences of those

risks or the chances of their occurring. So

there are eliminated from our consideration

matters of clinical judgment of the neuro-

surgeon as to how to conduct a bilateral

discussion with the patient in terms best

calculated not to scare her off from

undergoing an operation which, in the exercise

of the paramount duty of care he owed to her

individually to exercise his skill and
judgment in endeavouring to heal her, he is

satisfied that it is in her interests to

undergo despite such risks as may be entailed.

His Lordship went on, and critically from my

respectful point of view, Your Honours, at

page 895D and more particularly at the paragraph

beginning immediately after the letter C:

No doubt if the patient in fact

manifested this attitude by means of

questioning, the doctor would tell him

whatever it was the patient wanted to know;

but we are concerned here with volunteering

unsought information -

So, Your Honours, His Lordship indicates that if

the patient exhibits an interest in the outcome of
the procedure by putting specific questions, he is

entitled to a frank and full answer.

Lord Bridge, at page 898B says, in the last

five or six lines:

I should perhaps add at this point, although

the issue does not strictly arise in this

appeal, that, when questioned specifically by

a patient of apparently sound mind about risks

involved in a particular treatment proposed,

the doctor's duty must, in my opinion, be to

answer both truthfully and as fully as the

questioner requires.

Your Honours, Lord Templeman dealt with the

same matter at page 902D:

Mrs Sidaway could have asked questions. If

she had done so, she could and should have

been informed -

et cetera.	And it continues on in the rest of that
paragraph.	At page 903A His Lordship continues:

Rogers 19 4/10/91

Mrs. Sidaway must show and fails to show that
Mr. Falconer was not entitled to assume, in

the absence of questions from Mrs. Sidaway - The theme runs throughout every speech in the House

of Lords that if the patient exhibits an interest in the outcome of the procedure by questioning of

the medical practitioner, she is entitled to a full

and frank disclosure. In this matter,
Mr Justice Handley in the Court of Appeal records
the findings of the trial judge in dealing with

Mrs Whitaker's attitude and they are set out at

page 163 at line R. The trial judge found - and of

course it was not the subject of any challenge:

that the plaintiff was, to the defendant's

knowledge, keenly interested in the outcome of

the suggested procedures including any

complications so far as they affected her

eyes - albeit she did not think of damage to

the left eye as a result of the operation on the right eye apart from that which might be

caused by unintended or accidental

interference with her left eye;

(b) that the plaintiff incessantly questioned

the defendant as to, amongst other things,

possible complications, to the point of

irritating him;

(c) that the defendant was aware of the risk

of sympathetic ophthalmia -

and he was aware of the synergistic effect of a

surgical procedure following a previous penetrating

injury to the eye. That was found by the trial

judge as a result of interrogatories that were

tendered in the trial. It did not increase greatly
the risk of sympathetic ophthalmia but increase it

by a small proportion it did.

So, Your Honours, in response to my learned

friend's submissions in this regard we say that

this is not ·a case covered by Bolam per se, it is a
different matter. Bolam was concerned with
volunteering unsought information; Sidawaywas
concerned with the same. We have here in Australia

the decision of F v R in the Supreme Court of South

Australia where Chief Justice King wrote the

principal judgment which was the majority judgment

in that case which conforms with the proposition

that found favour with the Court of Appeal in this

particular case. We say that in cases where a

patient demonstrates a need to understand, a need

to be given information so that that patient can

make a vital decision as to his or her welfare, she

is entitled to full and frank disclosure and this

Rogers 20 4/10/91

case is therefore different from Bolam and that

test does not apply, nor should it.

There are no other matters that I wish to take

the Court to.

BRENNAN J: Thank you, Mr Wheelahan. Yes, Mr Hely.

MR HELY:  Would Your Honours permit me to say one thing in

reply to the submissions that my learned friend has

just put. There are dicta in the House of Lords

that refer to when a question is asked, giving a

full and complete answer, and the law of negligence

does not talk in terms of giving a full and
complete answer to a question which is put of one.

The law of negligence talks in terms of exercising reasonable care and skill in giving that answer.

Whether reasonable care and skill has been

exercised is, for reasons I have already put, to be

determined in accordance with the Bolam principle.

It would be quite wrong, in my respectful

submission, for the Court to approach this matter

upon the basis that there is some deliberate refusal to give information unless the right

question is asked. For the reasons I have already
put, it is a question of what the proper response

and the non-negligent response is to the total

clinical situation.

If the Court pleases.

BRENNAN J: Mr Hely, the special leave you seek is designed

clearly enough to establish the Bolam test as a

general test to be applied throughout Australia in

cases of medical negligence relating to advice.

MR HELY:  Yes, Your Honour.

BRENNAN J: Is there any reason why, if special leave were

granted, it should not be on terms of costs.

MR HELY:  Would Your Honour permit me just a moment to seek

instructions on that?

BRENNAN J: Yes.

MR HELY:  If the Court thinks it appropriate to impose a

condition to that effect, my instructions are to

accept it.

BRENNAN J: Mr Hely, the Court is minded to grant special

leave on terms that the appellant should bear the

costs of the respondent in any event. Are those

terms acceptable?

MR HELY:  Yes, if the Court pleases.

Rogers 21 4/10/91

BRENNAN J: Accordingly special leave will be granted on

those terms.

MR HELY: If the Court pleases.

MR WHEELAHAN:  May it please the Court.

AT 3.03 PM THE MATTER WAS ADJOURNED SINE DIE

Rogers 22 4/10/91