Rooke v Minister for Health - [2009] WASCA 27

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROOKE -v- MINISTER FOR HEALTH [2009] WASCA 27

CORAM: WHEELER JA
BUSS JA
MILLER JA

HEARD: 13 NOVEMBER 2008

DELIVERED : 30 JANUARY 2009

FILE NO/S: CACV 14 of 2008

BETWEEN: MICHAEL ANTHONY ROOKE
Appellant
AND
MINISTER FOR HEALTH
First Respondent
ROBERT FITZPATRICK
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
Citation  :ROOKE -v- MINISTER FOR HEALTH & ORS [2008] WADC 6
File No  :CIV 2907 of 2002

Catchwords:

Medical negligence - Failure to warn - Postoperative sensitivity - Dupuytren's contracture - Duty of trial judge to give reasons - Causation - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr B L Nugawela
First Respondent           :     Mr P D Quinlan
Second Respondent      :     Mr P D Quinlan

Solicitors:

Appellant:     Vertannes Georgiou
First Respondent           :     SRB Legal
Second Respondent      :     SRB Legal

Case(s) referred to in judgment(s):

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rooke v Minister for Health [2008] WADC 6
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

WHEELER JA: This is an appeal from a decision of a District Court judge dismissing the appellant's claim for damages. It was a "failure to warn" case, arising out of a surgical procedure involving the appellant's left hand. Her Honour found that there had been a duty to warn of a particular risk, which was pleaded. She did not find that the failure to warn, as pleaded, had been made out: see Rooke v Minister for Health [2008] WADC 6, at [93]. She also found that the appellant would, in any event, have undergone the surgery at the date at which he did, even if he had been warned in the manner pleaded: [98] and [102]. As to causation, that is, as to whether the alleged injury had been demonstrated to have arisen out of the surgery, her Honour observed that:
On the available evidence the plaintiff [appellant] is faced with considerable difficulty, which has not been overcome in my view, in establishing a nexus between his alleged current functional restrictions and the surgery ... [102]
There are two general criticisms made of her Honour's reasons, which are related. First, it is said that, in relation to a number of important matters, her Honour's conclusion is no more than a bare "ipse dixit". Black's Law Dictionary (5th ed) defines that as a "bare assertion resting on the authority of an individual". In addition, it is noted that her Honour's judgment was delivered a little over a year after the conclusion of the trial. A delay of that order, it is submitted, means that statements of a general character which might otherwise be accepted as encompassing a detailed consideration of the evidence, or perhaps as arising out of the trial judge's advantage in observing the demeanour of witnesses, must be treated with more reserve.
Her Honour's conclusions are, however, to be understood against the background of the detailed summary of the evidence which she carried out. The structure of her Honour's reasons was to summarise the evidence of each of the witnesses in some detail, then, in a section entitled "Findings on the evidence", her Honour turned to consider each of the three major issues, being whether there had been a failure to warn, whether the appellant would have undergone the procedure in any event, even if warned, and whether the procedure was causally related to the appellant's disability. I accept that there are potential difficulties with structuring reasons in that way. It is sometimes the case that a summary of evidence given in a chronological way, witness‑by‑witness, may not isolate the important features of it.
However, in this case, her Honour was at pains, in the case of each witness, to describe relevant inconsistencies internal to a witness's evidence and, where given, explanations for those inconsistencies. For example, in the course of summarising the appellant's evidence, her Honour described at some length the activities and training undertaken by the appellant in his voluntary work with the State Emergency Service (SES) and with the Fire and Emergency Services Association (FESA). Since the work might, on its face, appear to be inconsistent with the claimed disability involving the palm of the appellant's left hand, her Honour noted the ways in which the appellant said, in the course of his evidence, he was able to avoid using his left hand.
Her Honour did not specifically note that those explanations were difficult to accept, but they plainly lacked some credibility. For example, her Honour noted that the appellant became an "urban search and rescue representative" with FESA, a task which would involve searching and rescuing people who may be trapped in collapsed buildings. The training course involved physical practical work such as crawling through unstable surface rubble and placing persons on stretchers so as to remove them to safety. The appellant's explanation was that to participate in such a course, one did not need to be physically fit and that he was simply able to lift the stretchers using his right hand.
When her Honour then came to make findings on the evidence, some 10 pages of her reasons were devoted to referring briefly to the relevant legal principles, which do not seem to have been in dispute, and highlighting what she regarded as the most important evidentiary issues. That discussion is to be understood against the background of the evidence as recorded by her Honour. So, for example, where, in [100], her Honour accepted the evidence of one Mr Stevens, whom she considered to be "forthright and objective" in preference to that of the appellant and another witness called by him, that acceptance is clearly to be understood, in my view, as based not only upon an acceptance of the credibility of Mr Stevens, but such an acceptance against the background of the numerous instances revealed by her Honour's summary in which the appellant's evidence either was implausible (such as that mentioned above), or was inconsistent with the objective facts. It should also be understood against the background that the witness from the building industry called by the appellant, a Mr Goldsword, had conceded that his recollection of dates could have been in error to an extent of about six months. This was an important concession, because the question in issue in Mr Stevens' evidence concerned the precise period in which there had been a downturn in the building industry (if there had been such a downturn) which was put forward by the appellant as the reason for his having engaged in relatively little work in the period leading up to his surgery.
So far as issues of credibility are concerned, there appear to be only two points at which her Honour's findings were based, in part, upon questions of demeanour. At [93], she expressed the view that the second respondent's evidence had a "consistency and clarity that was lacking in the evidence of the [appellant] as to what occurred" at a critical consultation. The other is the passage I have quoted from [100] in relation to the witness who was considered to be "forthright and objective". I accept that, prima facie, where there has been a significant delay, observations such as these may be given less weight, in assessing the adequacy of reasons, than where judgment is delivered relatively soon after trial. I would also note that, from the point of view of an appellate court, it would be useful if, where there has been such a delay, a trial judge indicated so far as possible how such views came to be maintained a considerable period after trial, for example, by referring with some specificity to the content of notes taken during trial (and it appears her Honour made detailed notes: see ts 262, 290), or to some other reason for recalling a particular witness. However, for present purposes, it is sufficient to note that it appears from her Honour's reasons that questions of demeanour played a relatively small part in her reasoning process. In short, delay of the order of 12 months is unacceptable, particularly in a case involving credibility issues. However, there is nothing to indicate in this case that the delay adversely affected her Honour's reasons.
In addition to those general matters, there were many detailed criticisms of her Honour's reasoning. At many points, it was suggested that her Honour had erred in not dealing with matters which the appellant contended (before us) were significant. It is, of course, not necessary for a trial judge to deal with every single point raised by a party. The duty of a trial judge in giving reasons was adequately summarised, for present purposes, in the following passage from Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273:
Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the Judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery, at 382. [28]
In my view, her Honour's reasons refer to all relevant evidence, refer to the significant conflicts in the evidence, sufficiently explain why some evidence is preferred and adequately expose the reasons for the findings which her Honour made. It was not necessary for her Honour to do more. Selecting just one of the appellant's complaints in order to illustrate this conclusion, I refer to par 12(vi) of the appellant's written submissions. In that paragraph, it is noted that the appellant had to recall the events in question far earlier than did the second respondent. He first thought about them soon after surgery, because his friends urged him to consult a lawyer, and he thought about them perhaps as early as five weeks after the surgery because his hand was not functioning well. By contrast, the second respondent only started to think back to the consultation in 2003, after legal proceedings commenced, or when they were about to commence.
It is true that her Honour did not expressly refer to those matters in explaining why it was that she preferred the second respondent's recall of what was discussed at the relevant consultation to that of the appellant. However, she did set out, at [91] through to [93], the reasons why she preferred the evidence of the second respondent. In brief, these were that the appellant conceded that he had what might be described as a reasonably long consultation with the second respondent (although her Honour does not refer to the period, the appellant's estimate was 10 to 15 minutes). The appellant conceded that he could not recall all of the discussion at that consultation. He recalled only that he came away from the consultation with two pieces of advice, being advice in relation to the risk of infection and advice that he would be off work for four to six weeks following surgery. It was clear that such information could have been imparted in well under 10 minutes. Her Honour noted that the second respondent was largely reliant, in his evidence, on what his usual practice was when consulting a patient with the appellant's condition. However, she also noted that there were some distinguishing features of the consultation which may have assisted the second respondent's recollection, being particular features of the appellant's condition and his employment as a bricklayer, of which the second respondent had an independent recollection. Her Honour noted the "consistency and clarity" of the second respondent's evidence as to what had occurred at the consultation. All of those reasons are, in my view, cogent reasons for preferring the evidence of the second respondent. Although her Honour did not specifically refer to them, she had also referred at [81] to other apparent difficulties with the appellant's recollection of relevant events, and his inability to explain certain matters in a satisfactory way. Her Honour's findings must therefore, of course, be read against the background of those observations, which would go to the appellant's credibility and reliability generally.
Having set out all those matters, it appears to me that it cannot be suggested that her Honour had overlooked the fact that the appellant first had occasion to recall the relevant consultation at a much earlier time than did the second respondent; rather, in the light of the matters to which her Honour had referred, it seems to me that that fact was of very little significance, so that her Honour was not required to refer specifically to it.
For the reasons set out above, the grounds of appeal are based, in my view, on a misapprehension of the structure of the reasons of the learned trial judge, and for that reason cannot succeed. Further, the appellant's case, as run at trial, and as maintained before us, contained a fundamental flaw. That flaw emerged as, in exchanges with the appellant's counsel, the court endeavoured to understand what it was asserted her Honour should have found, what evidence there was for the findings sought, and how it related to the pleadings. The flaw explored with counsel was as follows.
The statement of claim addressed a particular risk of the surgical procedure in question and characterised the duty to warn in a particular way. That seems to have been largely accepted. The appellant's expert witness gave evidence directed to the existence of that risk, and directed to the proposition that it would have been reasonable and appropriate for the appellant to have been warned as pleaded. The respondents' witnesses, in particular the second respondent, gave evidence directed to the duty as pleaded. However, the condition of which the appellant in his evidence complained, and the risk which he said in his evidence would have led him to refuse to undergo the surgery, was a risk of a more significant magnitude. Not only was a risk of that magnitude not pleaded, but also there was no evidence that a risk of that magnitude was a recognised risk of this surgical procedure, and therefore there was no evidence to establish that there was a duty to warn of a risk of that magnitude. In order to understand these propositions, it is necessary to summarise briefly the pleadings and the evidence.
By his amended statement of claim, the appellant pleaded that he had been born in 1944 and was, at all material times, a self‑employed bricklayer. The first respondent was the Minister for Health, the second respondent was, at all material times, a specialist medical practitioner, specialising in the field of plastic surgery and employed as a consultant at Fremantle Hospital. An appeal against the third and fourth respondents was discontinued, and those parties are not now relevant. It was pleaded that the appellant was admitted to Fremantle Hospital in June 2001 to treat an existing medical condition to his left hand, known as Dupuytren's Contracture. Paragraphs 7, 8 and 9 contained the broad pleading that at no time prior to the operation did any of the respondents warn the appellant of "the risk of post‑operative complications", that they owed a duty of care to warn or advise of such complications, and that had he been so warned or advised, he would not have undergone the operation.
It was pleaded that the appellant developed a worsening, or recurrence, of his condition subsequent to the operation, but this aspect of the pleading can be disregarded, as there appears to have been no evidence of worsening, or recurrence, apart from the sensitivity question. It was also pleaded that the appellant developed "persistent sensitivity on the palm of his left hand which was the site of a skin graft procedure". It was then pleaded that the second respondent was negligent in that he "failed to warn the [appellant] of the risk of post‑operative complications such as a recurrence or worsening of the [appellant's] condition and/or continuing sensitivity to the skin graft site on the [appellant's] left palm" and "wrongly advised the [appellant] that he would only be 'off work for 4 to 6 weeks' following the operation". The injury pleaded as a result of the respondents' negligence was, relevantly, continued sensitivity on his left palm at the site of the skin graft and stress and/or anxiety. It was pleaded that, as a result, he suffers certain restrictions in his ordinary everyday activities and, in addition, that he has suffered past and future loss of earning capacity, as he "has been and is no longer able to work (or is significantly restricted in working) as a bricklayer, full particulars of which be provided prior to trial".
On its face (leaving aside the "4 to 6 weeks" pleading, for the present), the amended statement of claim does three things in relation to the risk of which it is said the respondents had a duty to warn the appellant. First, it pleads a failure to warn of any complications at all, and asserts that if the appellant had been warned (presumably of any complications at all), he would not have undergone the operation. That is so broad as to be meaningless, cannot have been understood as the case which the respondents had to meet, and it is not the way the trial was run. Next, it pleads a duty to warn of "sensitivity" at the site of the skin graft. Finally, it pleads that because of the "sensitivity", there has been some unspecified effect upon the appellant's ability to work as a bricklayer, which has caused him economic loss.
The appellant's expert witness in relation to the risks associated with the operation and the warnings which therefore should have been given was a Dr Faithfull. He was an orthopaedic surgeon whose areas of expertise were hand and upper limb surgery. He did not examine the appellant. However, he was provided with relevant medical records. He gave oral evidence and was cross‑examined.
For the purposes of this appeal, it is sufficient to refer to what was said in his written reports. In his oral evidence, he expanded upon some of the matters contained within them, but did not add anything of significance for this appeal.
In his first report, dated 17 March 2003, his only observation of relevance is that "... if all went well with the surgery, then I believe that at least a 12‑week period would be necessary prior to returning to bricklaying, and that some protection would be required for the palm of his left hand". In a supplementary report of 1 April 2003, he noted that the only treatment options available for Dupuytren's Contracture involved surgery, and that there was no known conservative care which would reduce the contracture. If, however, the patient is prepared to put up with the inconveniences associated with that contracture (which in broad terms causes one or more of the fingers to contract in toward the palm of the hand and which, of course, can interfere with work and daily activities), then surgery is not absolutely necessary. So far as the risks of the procedure are concerned, Dr Faithfull said the following:
The risks foreseeable for the surgery that Mr Rooke underwent, would be the risks related to any anaesthetic, risks during the operation, and the complications which can occur after any surgery of the hand. The anaesthetic risks would depend upon the type of anaesthetic undertaken, and I am uncertain as to what anaesthetic Mr Rooke underwent.
The risks during the operation, particularly with Dupuytren's contracture, would be that not all of the joint contracture can be overcome by excision of the cords. Also there are major anatomical structures running in the hand, which need to be identified and preserved, hence the necessity for magnification during operation. Haemostasis must be obtained after the tourniquet has been removed. The dressings should be applied so that the fingers are held in a comfortable position. The hand must be elevated to try to reduce post‑operative bleeding and swelling.
The major post‑operative complications to be discussed with the patient include:
•Recurrence of bleeding.
•Compartment syndrome.
•Loss of graft.
•Re‑development of finger contracture.
•Reflex sympathetic dystrophy.
•Wound infection.
It is necessary that the patient be advised of the above, so that if the patient is concerned, early warning can lead to early intervention by the treating team, and the long‑term effects of the complication can be diminished.
The advice concerning risks and possible adverse results should be discussed with the patient when discussing surgery in the Outpatients Clinic. This should also be discussed with the patient on admission and prior to going into the operating theatre. The post‑operative complications should also be discussed with the patient prior to being discharged home from the hospital, as well as at the first consultation post‑operatively. I believe that any patient who is a bricklayer should be warned that it would be 3 months before returning to work as a bricklayer, and they would need to have a protective glove for their palm, when undertaking work which could cause abrasion to the palm.

It should be noted that the major post‑operative complications do not include sensitivity. The "reflex sympathetic dystrophy" referred to is a different condition; at one point, it was considered that the appellant might be suffering from that condition, but by the time of trial it was accepted that he was not. The only reference which might be considered a reference to sensitivity is the reference to a protective glove when undertaking work which might cause abrasion.
The final relevant report needs to be understood with the letter which was written to Dr Faithfull. That letter does not seem to be in the green appeal book. However, the relevant part of its content was put to Dr Faithfull during his evidence‑in‑chief. It was, "[Mr Rooke] instructs us that the graft site has been very tender and sensitive since the operation, that it pulls every time he moves his hand and that everything that touches the graft site causes him pain and he also gets quite a bit a pain in the graft site in cold weather" (ts 145). Dr Faithfull was apparently asked whether those problems were usual following such a skin graft and could he please explain his answer. His answer was:
Any skin graft in the palm tends to be more sensitive than normal palm skin, because normal palm skin is very thick. Hence I can understand that a fork that would poke directly onto the graft would be tender and work such as a bricklayer's job would present problems. Skin from the groin would not thicken in the same way that palm skin would thicken when worked. I believe this should have been explained pre‑operatively, knowing that the patient's work was that of a bricklayer. (ts 146)
There was no exploration during the course of Dr Faithfull's evidence of what kind of glove he had in mind, and how it would protect the palm, where sensitivity resulted.
In cross‑examination, when asked about the wearing of a glove, Dr Faithfull confirmed (ts 154 ‑ 155) that the need to wear a glove at some time was not so much a possible complication of surgery as a desirable follow‑up for any graft to the hand in a manual labourer.
It is relevant to note that the suggestion was that work as a bricklayer could "present problems", rather than be precluded altogether. The type, degree and probable duration of "problems" were not explored in evidence, and it does not seem to have been clearly explained to Dr Faithfull that the appellant said he would be unable to work at all. The appellant's counsel did not ask Dr Faithfull to explain whether the type of sensitivity described by the appellant's solicitors in their letter was usual, unusual, or rare.
That was the totality of the evidence concerning the risks which should have been discussed with the appellant. Sensitivity was plainly not a major post‑operative complication. There was a risk of sensitivity following a skin graft to the palm of the hand, for the reasons given by Dr Faithfull. There was no evidence as to whether there was a recognised risk of very severe sensitivity, let alone sensitivity to such a degree that the person would be unable to work with the hand in question. There was, of course, therefore, no evidence of the degree of likelihood of such an outcome.
However, so far as the appellant's evidence was concerned, it was to the effect that he could not stand to have anything in the palm of his hand because the skin graft was so tender. That meant that he could not pick up bricks with his left hand because small pieces of rough brick touched his palm. That condition had continued, and he was unable to work. In answer to the rather leading question in evidence‑in‑chief, "Had [the second respondent] warned you of the risk of sensitivity to your palm such that you could not hold a fork or work as a bricklayer, would you have consented to have undergone the operation?" the appellant answered, "No" (ts 55). It seemed to be his evidence that the sensitivity had commenced relatively soon after the operation and had not improved in the intervening five years, during which time he had been wholly incapacitated from working as a bricklayer.
In relation to the wearing of a glove, he gave evidence of some bricklaying work around his home subsequent to the operation, although he had never attempted to engage in work as a bricklayer for a client since the operation. He described a relatively slow rate of bricklaying. He gave a number of different dates on which he had performed that work, but it seems probable that he was attempting to describe only a single occasion. He said that he wore a glove when bricklaying at home because "when you pick up a brick you have lots of little bits of brick sticking on the top of it and that's what digs into your palm" (ts 76). However, in subsequent cross‑examination, when asked whether wearing gloves would be a "big deal" for him, he said it would be (ts 98). In re‑examination, he said that when bricklayers lay bricks, they do so to a line and "[i]f you've got a glove on it will foul the line" (ts 116). Again, there was no discussion with him of what sort of glove he wore while bricklaying at home, or what was the mechanism by which a glove would "foul" the line.
The evidence of the second respondent as to what he did say as a matter of usual practice to patients who were to undergo surgery for Dupuytren's Contracture, and who may undergo full thickness skin grafts, was in some ways different from the warnings which would logically follow from the evidence of Dr Faithfull. That was because it was the second respondent's evidence that initially a full thickness skin graft would be very tender, because it was a wound which would need time to "settle down", but this appeared to be referring to a relatively short period of weeks, or, at the most, months. Apart from that tenderness, he said that initially a patient's problem was likely to be a lack of sensation in the hand, and that it could take 18 months to five years for sensation to be regained. At that period, there was a risk that the hand might become abnormally sensitive in a way which could be a "nuisance" and that he would explain this to a patient.
Reading the evidence as a whole, one gains the impression that the second respondent's account in his evidence of possible risks was more detailed and careful, and in some respects more favourable to the appellant's pleaded case, than that of Dr Faithfull. The appellant's counsel objected at trial to the second respondent giving such evidence, apparently on the basis of an alleged failure to comply with the rules relating to expert evidence. Her Honour considered it admissible on the basis that it was inextricably linked with, and necessary to understand, his usual practice in warning of possible complications.
In any event, whatever the differences between the second respondent and Dr Faithfull concerning the possible outcome, in terms of sensitivity following the operation, neither of them gave evidence which pointed to a risk of sensitivity, following the operation and continuing, to such a degree that a person would be unable to work, for an indefinite period, as a manual labourer, or in a trade such as bricklaying. Neither, of course, gave evidence of the degree of likelihood of such a risk. It was not possible, therefore, for her Honour to determine whether a risk of that kind was a material risk (Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479). It follows that there was no reason for her Honour to hold that there was a duty to warn of a risk of sensitivity so severe that it might preclude the appellant from working, as opposed to warning of a risk of increased "sensitivity" generally.
Further, because there was no evidence of the likelihood of sensitivity of that kind, there was, as her Honour noted at [102], considerable difficulty in establishing that the degree of sensitivity of which the appellant complained was, in fact, causally related to the surgery.
So far as the "4 to 6 weeks" pleading is concerned, it is clear that it was Dr Faithfull's evidence that the appellant would be off work for longer than four to six weeks following surgery. The second respondent, when giving evidence concerning his usual practice in discussing possible post‑surgery events and complications, did not mention discussing with patients how long they were likely to be off work. In passing, he did say that after six weeks, all wounds tend to "settle down" (ts 396), but also went on to explain that a scar would not be considered "mature" in under six months. In cross‑examination, nothing was put to him concerning whether he had discussed with the appellant any particular time during which the appellant would be likely to be away from work. Her Honour did not make a specific finding about whether there had been a discussion of how long the appellant would probably be off work following surgery, and, if so, what was said.
This emerged during the course of the appeal as something of a "fall‑back" position for the appellant. That is, his counsel suggested that even if the only failure to warn which was made out was that he would be likely to be away from work for more than six weeks, then that was a relevant failure to warn because, it could be inferred, if he had been

warned that he would be away from work for longer than this time, then he would not have consented to have the operation.

The difficulty with this line of argument is that the only evidence of Dr Faithfull was to the effect that a period of "at least" three months should have been given to the appellant. There was no evidence about what was the usual recovery time for a manual labourer, how the three‑month period mentioned was arrived at, or whether any period significantly longer than three months away from work was a likely outcome, and, if so, how likely. In the absence of exceptional circumstances, it is, in my view, nonsense to suggest that a person who is prepared to undergo the risk of being away from work for six weeks is not prepared to undergo the risk of being away from work for 12 weeks. That is particularly so in the case of the present appellant, who had, in any event, been working only intermittently (he said because of a lack of available work at the relevant time) in the six months leading up to the operation.
As I observed at the outset, it appears to me that her Honour did deal in appropriate detail with the evidence and with the important features of the appellant's case. However, as I have endeavoured to explain above, even if she had not done so, this appeal cannot succeed. The appellant's case would not have been made out even if all of the evidence called on behalf of the appellant had been accepted, for the reason that the risk, the failure to warn of which lay at the heart of the appellant's case, was neither pleaded nor made out by the expert evidence called on his behalf.
I would therefore dismiss the appeal.
BUSS JA: The appellant's claim at trial was based solely on an alleged failure by the second respondent (and others in relation to whom no appeal is brought) to warn him of certain risks associated with the surgery he underwent on 26 June 2001 to correct Dupuytren's contracture in his left hand. Various other particulars of negligence had been asserted by the appellant in his statement of claim, but they were abandoned on the third day of the trial.
The material background facts are set out in the reasons of Wheeler JA. I agree with her Honour, for the reasons she gives, that the appeal should be dismissed.
Ground 2 of the appeal alleges, in effect, that the learned trial judge, Deane DCJ, erred in fact in concluding that the appellant would still have undergone the surgical treatment in June 2001 if he had been warned of

the risk of palmar hypersensitivity as a post‑operative complication. The ground then alleges, in the alternative, that her Honour erred in law 'in failing to give adequate consideration to and provide adequate reasons for' her conclusion that the appellant would have had the surgical treatment in June 2001 even if he had been warned.

I would also dismiss the appeal on the ground that the trial judge was correct in her finding that the appellant would, in any event, have undergone surgery for his condition in June 2001, and that her reasons for this finding were adequate.

Legal principles: duty to warn

In Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said:
The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege (490).
As Gummow J observed in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 'in cases of a medical practitioner's failure to warn, the extent or severity of the potential injury is of great importance in applying the test in Rogers of "likely to attach significance to", as is the likelihood of the injury actually occurring' [77]. His Honour then said:
These two matters, the extent or severity of the potential injury and the likelihood of it coming to pass, are to be considered together. A slight risk of a serious harm might satisfy the test, while a greater risk of a small harm might not. It is also important to note that, in considering the severity of the potential injury, that severity is judged with reference to the plaintiff's position. Thus, the risk of blindness in one eye would ordinarily be considered serious; if however, as in Rogers, the patient is already blind in one eye and stands to lose sight entirely, that risk becomes one of an altogether greater magnitude.
These considerations need to be weighed against the circumstances of the patient. The patient's need for the operation is important, as is the existence of reasonably available and satisfactory alternative treatments. A patient may be more likely to attach significance to a risk if the procedure is elective rather than life saving. As will be seen, these factors merge with the issue of causation.
The second, or subjective, limb of the test in Rogers for material risk requires further discussion. The second limb recognises that the particular patient may not be a 'reasonable' one; he or she may have a number of 'unreasonable' fears or concerns. These will be given full weight under the second limb if the medical practitioner was or should have been aware of them. One way of satisfying that condition is if the patient asked questions revealing the fear or concern. However, that is not the only means of satisfying the second limb. There are a multitude of potential circumstances in which a court might find that the medical practitioner should have known of a particular fear or concern held by the patient. Courts should not be too quick to discard the second limb merely because it emerges that the patient did not ask certain kinds of questions.
The phrase 'likely to attach significance to' as it appears in both limbs does not present a threshold issue of the same nature as that presented by the issue of causation. In the authorities, reference has been made to 'information that is relevant to a decision or course of action' (Rogers v Whitaker (1992) 175 CLR 479 at 494 per Gaudron J) and 'matters which might influence the [decision]' (F v R (1983) 33 SASR 189 at 192 per King CJ). It is not necessary when determining materiality of risk to establish that the patient, reasonable or otherwise, would not have had the treatment had he or she been warned of the risk in question. The test is somewhat lower than that. However, it is necessary that the reasonable patient or particular patient respectively would have been likely seriously to consider and weigh up the risk before reaching a decision on whether to proceed with the treatment. The authorities referred to above should be read in that way [77] ‑ [80].

The learned judge's findings of fact: causation

The learned judge's ultimate finding on causation, based on the hypothesis (contrary to her Honour's primary conclusion) that there had been a breach of the duty to warn about post‑operative complications, was as follows:
Putting aside the finding that there was no failure to warn or advise the plaintiff of post-operative complications and therefore no consequent breach of the duty owed on the part of any of the defendants, in relation to the evidence referred to above, I find the plaintiff would in any event have undergone the corrective surgery relevant to the Dupuytren's contracture in his left hand. He has not established that there is a nexus between the current alleged physical or functional restrictions in his left hand and the surgery he underwent in June 2001. In view of these findings it is not necessary to turn to a consideration of the issue of damages [103].
It is apparent from this passage, in the context of her Honour's reasons as a whole, that she found the appellant would, in any event, have undergone corrective surgery in June 2001.
The learned judge's finding in this respect was based on several subsidiary findings:
[T]he plaintiff contended he was not provided with the alleged specific warnings pleaded in his case and had he been so advised or warned he would not have undergone surgery in June 2001. It is the case, however, that prior to this in 2001 the Dupuytren's contracture in both the plaintiff's hands, but particularly his left hand, was significant enough and of sufficient concern for the plaintiff to raise and discuss the matter with his father who had successfully undergone surgery for the same condition and as a result he encouraged the plaintiff to follow the same course of action. Further, the plaintiff mentioned his concerns regarding his hands to Dr Buters his general practitioner and in fact, according to Dr Buters, the plaintiff 'requested corrective surgery for his hand'. This was a request which evidently Dr Buters considered both desirable and reasonable given his referral of the plaintiff to the second defendant. There is no doubt that the condition, especially in the plaintiff's left hand, was significant and was going to worsen without surgical intervention, which was the only corrective treatment available for the condition in those circumstances.
I consider on the evidence that the plaintiff's condition was affecting his ability to carry out his occupation of bricklaying (albeit he was in receipt of Centrelink benefits between early and mid-2001) to the point where he was keen to undergo surgery in an endeavour to resolve the problem, notwithstanding that he conceded he was aware that, for example, anaesthesia did carry a risk of death during surgery. On the plaintiff's own evidence he was not deterred from undergoing surgery even though he conceded he had been warned of the risk of infection.
The progress of the condition of Dupuytren's contracture or disease in the plaintiff's left hand in particular was in my view by early 2001 adversely affecting his livelihood and this remained the case as at June 2001. Despite his evidence and that called on his behalf, that there was a downturn in the building industry at the relevant time when he was on Centrelink benefits which adversely affected the work available for bricklayers, that evidence or assertion is inconsistent with and indeed contradicted by the evidence of Mr Stevens, whom I considered to be a forthright and objective witness. On this basis the plaintiff's receipt of Centrelink benefits I consider to be related not to lack of availability of work but rather as a consequence of the functional problems he was experiencing with his left hand in particular, which had a substantial and direct impact on his capacity to carry out his work as a bricklayer, in the sense that he could not [sic] longer do it as efficiently and easily as he had in the past. This is reflected in the evidence of Dr Buters, insofar as his evidence reflected his understanding of the plaintiff's difficulties with performing his work at the time he referred the plaintiff to Fremantle Hospital.
Mr Fitzpatrick, the second defendant, made the obvious point that the physical restrictions imposed by Dupuytren's contracture (of the hand or hands), will have significantly greater implications for a manual worker, such as the plaintiff, than for a person carrying out non-manual or clerical work and logically the need for or desirability of surgery may be more pressing in the case of a manual worker.
On the available evidence the plaintiff is faced with considerable difficulty, which has not been overcome in my view, in establishing a nexus between his alleged current functional restrictions and the surgery carried out in June 2001. As has been observed, Dr Faithfull had never physically seen or reviewed the plaintiff or been involved in his treatment and so that witness was restricted to commenting on this issue, in the sense that he was confined to observations of a general and somewhat hypothetical nature, the end result of which was that he could not provide an opinion in this regard. Professor Harper did venture an opinion on this issue but it was very reliant, as he conceded, on what appears to be a somewhat inadequate history provided to him, and further, he agreed he did not comment on the pathology of the condition as he was not asked to do so, for example, he was not asked to comment on the cause of pain in the proximal interphalangeal joints, although he conceded it could have a number of causes including arthritic or degenerative changes [98] ‑ [102].

Before making the ultimate and subsidiary findings, the learned judge noted, correctly, that the focus in relation to this issue is upon the particular or individual plaintiff, Mr Rooke, and what decision he would have made as at May 2001, when he consulted the second respondent [97]. Her Honour added, also correctly:
A decision a plaintiff may have made or believe that they would have made following a negative or unsatisfactory outcome might well be very different from a decision made by that person at the critical earlier point [97].

The appellant's submissions: causation

Counsel for the appellant contended, in the context of ground 2 of the appeal, that had the appellant been adequately warned, he would not have undergone the operation at all, alternatively at the material time. Counsel's written submissions on this point read:
(i)The appellant gave evidence in chief (T/S 55) that had he been warned of the risk of sensitivity to his palm such that he could not hold a fork or work as a bricklayer, he would not have consented to have undergone the operation. He was not cross examined on this evidence - this was consistent with his answers in cross examination (T/S 99). Furthermore, he was clearly concerned about how long he would be off work and that is why he asked the specific question which resulted in the answer '4 to 6 weeks' (T/S 33) - in cross examination on this issue, he was also neither contradicted or challenged (T/S 98);
(ii)Objectively, it is likely that if properly warned, he would not have undergone the operative procedure at the time he did (age 56) or at all, given his conservative past decisions not to undergo a nerve block procedure (Ex 2.2), as well as a further operation to his knuckles once properly warned (T/S 39‑41). There was the further episode several years ago when he was given the option of having a pin inserted into his fractured ankle when plaster fixation failed (T/S 30) - he declined this procedure when warned that the pin was going close too [sic] the edge of the bone and that it could shatter so he decided not to go ahead with it and just let it heal on its own. All these bore the hallmarks of a conservative man who would carefully evaluate the risks to him and make an informed choice before proceeding with or declining surgery. There was no objective reason to disbelieve his evidence when he said that had he been warned of palmar hypersensitivity or the risk that he may not be able to ever work as a bricklayer, he would have declined the low risk and elective operation (the procedure was clearly elective - see the uncontradicted evidence of Dr Faithfull at T/S 132; Ex 2.14 at [5]‑[6], [29]);
(iii)The Dupuytren's contracture did not trouble him pre‑operatively and he could work as a bricklayer laying between 400 to 500 bricks per day, based on his evidence as well as others who witnessed him working [as recently as 2 weeks before the operation, Ron Goldsword (Homestyle supervisor) - T/S 60, plus also his wife - T/S 217]. The only observation was that he could not lay his palm perfectly flat on a table, but slightly raised merely to the extent that he could slide a pencil between his palm and the table surface (T/S 30). He had seen his GP in September 2000 for other conditions and only raised this incidentally as he had a previous discussion with his 84 year old father (T/S 91) - the majority of the time spent at this initial general 15 minute consultation with his GP was for other matters (Dr Buters, T/S 260‑262). The release was certainly an elective procedure because when he saw the Second Respondent for the first time as much as 8 months later (May 2001), his condition had not progressed and he was still able to lay bricks without a problem (T/S 30‑32). Here the contracture was in the palm so it was not as aggressive or progressive as if it might have been if it were in the fingertips (Second Respondent, T/S 395). Although there was contracture to his right palmar surface, this had resolved without operative intervention (T/S 42). Dr Buters did his best to recall the Appellant's pre‑operative condition but his recollection was understandably poor given the number of patients he sees (200 per day with numerous conditions) and has seen since September 2000. In this respect, his reconstructed memory as to the Appellant's pre‑operative condition evolved from a moderately serious condition such as to require consultation with a surgeon for an opinion (evidence in chief T/S 242‑244), to a significant impairment for a bricklayer (re‑examination) - yet see his contrary report dated 17 May 2003 (Ex 11) at paras. 4, 5 & 6 and his answer in cross examination at T/S 253. It is submitted that the best evidence of the Appellant's pre‑operative condition came from the Appellant, his wife and supervisor Ron Goldsword (T/S 271‑272, 274, 282), all of whom actually closely witnessed his pre‑operative performance as a bricklayer. Her Honour's finding that the Appellant's condition was functionally affecting him was against the weight of the evidence.
(iv)The Appellant was booked in for the release procedure but he cancelled this is [sic] order to do the job for Goldsword (Homestyle) for which he invoiced and was paid a significant sum. If his contracture was debilitating, he would not have been able to start let alone complete this job. He is now on a disability pension due to the surgery (whereas before the operation he was on Newstart allowance). His receipt of Centrelink benefits was to be temporary whilst there was a (perhaps temporary) downturn in work referred to him - but he had some bricklaying jobs between January and May 2001, and even a job offered for June 2001 after the 21 May 2001 consultation with the Second Defendant. Centrelink even tried to find him bricklaying work during that period but could not, so he was put on a 1 week security course. After the operation he was offered more bricklaying work by Mr Goldsword (Homestyle) but had to turn this down due to his palm condition.
It was also submitted:
Her Honour relied upon the evidence of Stevens in concluding that there was no downturn in the building industry at the time of the introduction of the GST, then proceeded to use this finding as a basis for concluding that the Appellant must have gone on Centrelink benefits because of his Dupuytren's contracture - Reasons [100]. This was contrary to the evidence of Mr Goldsword [who gave evidence about the actual downturn in work that he referred to the Appellant (unlike Mr Stevens who admitted that he did not know the Appellant and was not involved in work distribution within Goldsword's team of subbies - T/S 472)] as well as the Newstart documents tendered in evidence. Goldsword also observed the Appellant working at all times and even immediately before the operation, without restrictions [Stevens conceded he never knew let alone saw the Appellant work - T/S 477]. Mr McCrudden was emphatic that there was a relevant downturn in his business, which was similar to that of the Appellant (T/S 314‑327) following the introduction of GST. Unlike McCrudden, Stevens did not look at his company's turnover records before giving evidence and he did not know of the breakdown of turnover for each of the distinct geographical areas (Canning Vale being the relevant area under Goldsword's jurisdiction). Her Honour's conclusion on causation based on Stevens' testimony, was in the circumstances against the weight of the evidence. Further or alternatively, her Honour failed to give adequate reasons for that conclusion in the light of the overall evidentiary position.

Legal principles: causation

A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission. In Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, McHugh J noted that if the evidence suggests that a defendant's negligent act or omission would have made no difference to the plaintiff's course of action, the defendant will not have caused the damage which the plaintiff has suffered [32]. The issue of causation requires a plaintiff to prove what would probably have eventuated had the defendant's negligence not occurred. This is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The test is a subjective test. See Chappel [32] (McHugh J), [93] (Kirby J); Rosenberg [24] (McHugh J).
It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission contributed materially to the damage. See March v E & M H StramarePty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); Chappel [27] (McHugh J).
A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg [44] (McHugh J).
Where a medical practitioner is under a duty adequately to warn his or her patient of the consequences of the treatment the patient is contemplating, and the medical practitioner fails to warn the patient of a particular consequence and that consequence in fact eventuates, then, subject to the question of materiality, causation requires satisfaction of two criteria. First, there must be a breach of the duty to warn of a material risk, that risk having eventuated and caused, in the physical sense, injury to the plaintiff. Secondly, it must be established that, had the warning been given, the injury would have been averted, in the sense that the patient would not have had the treatment in question. See Rosenberg [86] (Gummow J). The second criterion is a subjective one. The question is whether the particular plaintiff would not have had the treatment had a warning been given. See Rosenberg, where Gummow J added:
This subjective criterion, it has been recognised, involves practical questions of proof. The court must deal with hypothetical considerations as to what the patient in question would have done had a warning been given [87].
In Chappel, McHugh J considered the interaction of the legal onus of proof and an evidentiary onus, in the context of causation, where there has been a negligent omission to warn of a risk. His Honour said:
[T]he onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff [34].
Similarly, in Chappel, Gaudron J commented:
The duty was called into existence because of the foreseeability of that very risk (See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422 per Gaudron J). The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe ((1945) 71 CLR 637 at 649), albeit in relation to a statutory duty, 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach' [8].
Also see the observations in Chappel of Gummow J [68] and Kirby J [93].
It is well‑established that a plaintiff's evidence as to his or her 'belief' as to what course he or she would have adopted if a particular warning had been given must be treated with caution. See Rosenberg, where Gleeson CJ said:
There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action [16] (footnotes omitted).
This issue was also expounded upon by McHugh J in Chappel:
Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. For that reason, the restrictions on appellate review laid down in Abalos v Australian Postal Commission (1990) 171 CLR 167 and other cases are likely to have little application [32] fn (33).

The aspect of causation which is relevant in this appeal

The aspect of causation which is relevant in this appeal is the second criterion referred to by Gummow J in Rosenberg [86]. That is, whether the appellant would not have had the surgical treatment for his Dupuytren's contracture in June 2001 or at all if he had been warned of the risk of palmar hypersensitivity as a post‑operative complication.
The first criterion enumerated by Gummow J in Rosenberg [86], namely whether the risk (in respect of which there has been a breach of the duty to warn) has eventuated and caused, in the physical sense, injury to the plaintiff, is subsumed within the learned judge's hypothesis (contrary to her Honour's primary conclusion) that there was a breach of the duty to warn. See [43] ‑ [44] above.
The appellant consulted his general medical practitioner, Dr Buters, and the second respondent in connection with his condition before he underwent the surgery.
Dr Faithfull, an orthopaedic surgeon called by the appellant whose area of expertise was hand and upper limb surgery, did not ever examine him.

The appellant's evidence in relation to causation

The appellant's evidence‑in‑chief in relation to causation was, relevantly:
(a)The appellant carried out bricklaying work, mostly on residential premises, for 'all the big companies' including Don Russell Homes, Collier and Plunkett (ts 26).
(b)In early 2000, the appellant spoke to his father about the difficulty with his hands. His father had 'just had this operation done for the same problem', and he advised the appellant:
You'd better get it done, you'd better get it done (ts 30).
(c)At the material time the appellant's father was aged 84 and he had been complaining about symptoms to his hand for three or four years before his operation (ts 30 ‑ 31).
(d)Sometime before 2001, the appellant broke an ankle. The ankle was encased in plaster. When the plaster was removed, the ankle had not mended and a doctor at a hospital offered to 'pin' it. The doctor warned him that if it was pinned, 'the pin was going very close to the edge of the bone and it could shatter'. The appellant decided not to have the pin inserted and 'just let it heal on its own' (ts 29 ‑ 30).
(e)As at the date of trial (15 August 2006), Dr Buters had been the appellant's general medical practitioner for 15 ‑ 20 years (ts 32).
(f)When the appellant consulted Dr Buters in September 2000 and the second respondent in May 2001, he was working in his bricklaying business with his son. He was able to lay bricks and the rate at which he laid bricks had not been affected by the condition of his hands (ts 32).
(g)In May 2001, the second respondent warned the appellant that the skin graft, which was a necessary part of the proposed surgery, might become infected (ts 33 ‑ 34).
(h)Sometime after the operation on 26 June 2001, the appellant consulted Dr Anderson in connection with the possibility of a nerve block to treat pain he was experiencing in his left hand. Dr Anderson told him there were potential side‑effects from a nerve block including 'like you've had a mild stroke in the side of your face and you couldn't talk and that sort of thing'. Dr Anderson advised the appellant that he should not have a nerve block because his pain was insufficient to warrant it and because of the possibility of side‑effects. The appellant accepted his advice and did not have a nerve block (ts 39 ‑ 41).
(i)Between about April/May 2000 and about June 2001 there was a significant reduction in the availability of bricklaying work as a result of the introduction by the Commonwealth Government of the goods and services tax (ts 48 ‑ 51). Between about September 2000 and about June 2001 the appellant was receiving unemployment benefits in the form of a Newstart allowance from Centrelink (ts 47 ‑ 51).
(j)If the appellant had been warned of the risk of sensitivity to his palm such that he could not hold a fork or work as a bricklayer, he would not have undergone the operation (ts 55).
(k)Before the operation on 26 June 2001, the appellant's ambition was to continue to work as a bricklayer until at least age 65 (ts 58 ‑ 59). As at the date of the operation he was aged 57, having been born on 22 April 1944 (ts 24).
The appellant's evidence in cross‑examination in relation to causation was, relevantly:
(a)Between September 2000 and June 2001, the appellant and his son (who together carried on the bricklaying business under the name S & J Bricklayers) did very little bricklaying work (ts 61). Their total business income during the financial year ended 30 June 2001 was $29,000 (ts 62).
(b)The income of the business for the financial year ended 30 June 2001, as divided between the appellant and his wife, on the one hand, and their son, on the other, was about $12,300 for the appellant and his wife and about $11,900 for their son (ts 63).
(c)The appellant was not working full‑time as a bricklayer in the six months before his surgery (ts 64).
(d)The appellant denied that he was winding down his bricklaying work by June 2001 (ts 88), and also denied that there was plenty of work available for bricklayers in 2000 and 2001 with the building firm, Don Russell Homes (ts 89). He rejected the suggestion that 'it was basically up to bricklayers if they wanted to work for Don Russell Homes in 2000 and 2001' (ts 90).
(e)The appellant consulted Dr Buters about his hands in September 2000 because the appellant's father was actively encouraging him to 'go and get surgery to [his] hands' (ts 90 ‑ 91).
(f)The appellant's father was 'nagging' him to have surgery (ts 92).
(g)When the appellant consulted Dr Buters, Dr Buters informed him that the symptoms in his hands could get worse (ts 92).
(h)As at September 2000, the symptoms in the appellant's left hand were much worse than in his right hand (ts 92, 94).
(i)After the initial consultation with Dr Buters, the appellant's view was that he was going to Fremantle Hospital for the purpose of arranging corrective surgery (ts 92, 94).
(j)After consulting the second respondent in May 2001, the appellant knew there were risks of infection with the operation he was to undergo that were different from the procedure which his father had undergone (ts 93, 96).
(k)By the end of the consultation with the second respondent, the appellant had decided to proceed with the surgery (ts 99).
(l)At Fremantle Hospital, the appellant spoke to an anaesthetist who warned him about the risks of a general anaesthetic (ts 101).
(m)The appellant was aware that a general anaesthetic involved the risk of death during the operation, and he was 'happy to go ahead' notwithstanding that risk (ts 101).

The appellant said in re‑examination that the procedure he had undergone was different from his father's operation in that his father had not had a skin graft (ts 120).

Dr Buters' evidence in relation to causation

By letter dated 17 May 2003, Dr Buters answered certain questions raised with him by Leonard Cohen & Co, a firm of legal practitioners, concerning the appellant and his condition. Dr Buters said, relevantly:
4.It is certain that Mr Rooke's Dupuytren's contractures would have progressed had he not sought surgical treatment. As far as I am aware there is no effective non‑surgical treatment available. However I am unable to comment as to the rate of the progression because this varies substantially between different individuals.
5.I have been aware that Mr Rooke was a self‑employed bricklayer on a full‑time basis and that this disorder, Dupuytren's contractures, would impair his ability to work as a bricklayer. Whether it did at the time that he consulted me I cannot recall. He probably would have been able to work as a bricklayer, however the speed that he would have been able to work would have been impaired to a significant degree.
6.Had Mr Rooke not had the surgery, he would have been able to continue working as a bricklayer, however the speed and his productivity would have gradually deteriorated.
Dr Buters was called by the respondents' counsel. His evidence‑in‑chief in relation to causation was, relevantly:
(a)Dr Buters was 'most certainly' familiar with Dupuytren's contracture (ts 240).
(b)Dr Buters' usual approach in dealing with patients suffering from Dupuytren's contracture was as follows. If the patient's condition was 'mild', the nature and origin of the condition would be explained to the patient, but surgery would not be recommended. In 'moderate' cases, however, he would advise the patient to seek a surgical opinion because if the condition deteriorates to an 'advanced' stage, surgery has less than optimum results (ts 240 ‑ 242).
(c)Surgery is the only treatment available for Dupuytren's contracture (ts 240).
(d)In a 'referral letter' sent by Dr Buters to Fremantle Hospital, Dr Buters stated that the appellant's left hand was worse than his right hand; that the appellant was a self‑employed bricklayer who used his left hand to pick up bricks; and that the appellant requested corrective surgery to the left hand (ts 244).
(e)It was Dr Buters' normal practice to generate referral letters in front of the patient. On that basis, Dr Buters said the appellant would have been aware of the contents of the referral letter (ts 244).
(f)It was certain that the appellant's Dupuytren's contractures would have progressed had he not sought surgical treatment: there is no effective non‑surgical treatment available (ts 246). That was Dr Buters' view when he consulted with the appellant, and it was something which was his usual practice to communicate to the patient (ts 246).
Dr Buters said in cross‑examination, in relation to causation, relevantly:
(a)The decision to proceed with surgery is made between the patient and the specialist (ts 252).
(b)Detailed advice as to the risks of a surgical procedure are given by the specialist to the patient (ts 252).
(c)Dr Buters did not have an actual recollection of what occurred in his dealings with the appellant in 2000 (ts 253). He relied on his notes and the reports he had prepared (ts 253).
(d)Dr Buters reiterated the answers he gave at points 4 and 6 of his letter dated 17 May 2003 (ts 254). See [61] above.
Dr Buters said in re‑examination that, on the basis of his records relating to the appellant, he placed the appellant in the category of patients whose life was being interfered with by Dupuytren's contracture. The condition was a 'significant impairment' for the appellant, and on that basis he considered surgery was reasonable. As a result, he referred him to Fremantle Hospital (ts 259).

Mr Goldsword's evidence in relation to causation

Mr Goldsword is a registered builder. He was called by counsel for the appellant. Mr Goldsword worked at Don Russell Homes as a site manager or building supervisor between about 1992 and about 1999. He said the appellant carried out bricklaying work for Don Russell Homes (ts 270). He expressed the opinion that the appellant was 'a really good bricklayer' (ts 271). He did not at any time notice that the appellant had any difficulty in performing bricklaying tasks (ts 272).
Mr Goldsword was uncertain as to precisely when he ceased working for Don Russell Homes. He said, however, that between November 1999 and November 2000 he was the site manager for another company, Homestyle (ts 272). Towards the end of his employment with Don Russell Homes, Mr Goldsword said the appellant mentioned to him that:
He had a slight problem with his hand which I believed was more of a cosmetic - he was having to have an operation (ts 272).
Mr Goldsword said that in October or November 2000 there was a downturn in the building industry and he had 'to let [his] tradespeople go' for about six months (ts 276, 291 ‑ 292). He linked the downturn in the building industry to the introduction of the goods and services tax.
During cross‑examination, however, Mr Goldsword made these concessions:
No, but what I'm suggesting is that you don't know which year it is but you're going off the GST?‑‑‑That's right, that's correct.
And you can't place things within six month periods. You don't ‑ ‑ ‑?‑‑‑That's probably right, yes. I'd agree with that (ts 292).
Mr Goldsword recalled that Neville Stevens was employed by Don Russell Homes as the construction manager. Mr Stevens was at Don Russell Homes for about two or three months before Mr Goldsword left (ts 293). The following exchange occurred in the course of Mr Goldsword's cross‑examination:
Right. So if Neville Stevens started in 1999 ‑ ‑ ‑?‑‑‑Yes.
It would have been 1999 that you left Don Russell?‑‑‑That's correct, that would be right, yes.
So if I tell you that GST came in in June 2000 ‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ then it was at least six months before GST came in that you left Don Russell?‑‑‑Well, I'm confused about that but if that's what your evidence says, that Neville Stevens started in that year, that's the year that I - which is originally what I said, actually, in 1999. So I'm under the recollections that I left Don Russell when the GST came in but it could be the year I left Homestyle but I'm fairly positive about that.
Fairly positive about what?‑‑‑About that I left Don Russell after GST.
But within two months of Mr Stevens?‑‑‑Yes, yes, that's the recollection that I have. I was there for maximum four months when Mr Stevens was there, maximum.
As a site ‑ ‑ ‑?‑‑‑I do remember - sorry, I do remember that it was around about 15 July that I left Don Russell, that's my recollections of it.
That you left Don Russell?‑‑‑Yes, on 15 July, roughly around about that time. That's my recollections.
DEANE DCJ: Of what year?‑‑‑I believe 2000, I believe. It sounds like it's now 1999. I'd have to go back to my records and check my records to be confirming that (ts 293 ‑ 294).

Mr Stevens' evidence in relation to causation

Mr Stevens was called by counsel for the respondents. His evidence‑in‑chief in relation to causation was as follows:
(a)In July 1999, Mr Stevens commenced employment with Don Russell Homes as construction manager (ts 471).
(b)When Mr Stevens commenced his employment with Don Russell Homes, Mr Goldsword was employed as a supervisor and, in the company hierarchy, was directly responsible to Mr Stevens (ts 472).
(c)Between July 1999 and December 2001, Don Russell Homes was extremely busy. When Mr Stevens commenced employment the company had seven supervisors and within about six months he increased the number of supervisors from seven to nine (ts 473). He then gave this evidence:
Do you recall there being any time during 2000 or 2001 where there was any downturn in the work being carried out by Don Russell Homes?‑‑‑Not from Don Russell'[s] point of view, no.
Specifically can you say whether or not there was any effect on the work being done by - the building work being done by Don Russell Homes following the introduction of the goods and services tax on 30 June 2000?‑‑‑Yes, it increased substantially.
Are you able to say whether in 2000 Michael Rooke or S [&] J Bricklayers were providing bricklaying services to Don Russell Homes?‑‑‑According to our records they were, sir.
…
In relation to the availability of work for bricklayers during that period that I've referred to or indeed at any other time since you commenced in 1999, can you say whether or not there was any change in the amount of work that Don Russell Homes was able to provide for bricklayers?‑‑‑No, we've never had a downturn.
…
I didn't catch that last answer?‑‑‑Sorry. We've never had a downturn we've always had a substantial amount of work for bricklayers.
What is the position in your experience as the construction manager above the site supervisors, what occurs in the company if for example one supervisor doesn't have work for a particular tradesperson, bricklayer, plumber, whatever it is?‑‑‑It's company policy that the supervisors liaise with each other and also they liaise with myself so that if there's no work in one area then we take responsibility for finding work in another area for the trades. We still do that today (ts 473 ‑ 474).
Mr Stevens' evidence that there was no downturn in the availability of building work at Don Russell Homes in 2000 and 2001 was not materially weakened by cross‑examination.

Mr McCrudden's evidence in relation to causation

Mr McCrudden is a bricklayer. He was called by counsel for the appellant.
According to Mr McCrudden, bricklaying work 'really dried up' and there was 'hardly any work going on at all' for about nine months to a year after the goods and services tax came into effect on 1 July 2000 (ts 324).
Mr McCrudden conceded in cross‑examination that during 2000 and 2001 he was not carrying out any work for Don Russell Homes (ts 326). He was uncertain as to precisely for whom he was doing work during that period. He said:
Well, it could have been Collier Homes, it could have been Fuchsia and Sons, could be a private builder - an owner/builder called Hughes - and that's about all I know (ts 324 ‑ 325).
He added that Hughes was an owner/builder. Fuchsia and Sons was a 'smallish' building company, but it had been in business for a long time (ts 325).
Mr McCrudden said in re‑examination that Collier Homes was a 'big' enterprise. He thought they were building 'a thousand houses a year' and that Fuchsia and Sons were building 'about ten a year' (ts 327).

Some features of the evidence at trial concerning causation

The respondents discharged any evidential onus on them at trial as to whether the appellant would not have had the surgical treatment for his Dupuytren's contracture in June 2001 or at all if he had been warned of the risk of palmar hypersensitivity as a post‑operative complication. They discharged any such onus by adducing from the appellant in cross‑examination, and from Dr Buters in evidence‑in‑chief, objective facts and circumstances which, if accepted, were inconsistent with the appellant's professed 'belief'.
The appellant did not lead any evidence (and no evidence was otherwise adduced) at trial as to the likelihood or degree of risk that the appellant (or anyone with Dupuytren's contracture) might suffer palmar hypersensitivity as a result of undergoing corrective surgery, either in comparison to other risks of undergoing the surgery or generally. Similarly, the appellant did not lead any evidence (and no evidence was otherwise adduced) at trial as to the likelihood or degree of risk of the occurrence of mild, moderate or severe palmar hypersensitivity as a post‑operative complication, either in comparison to other risks of undergoing the surgery or generally.

The learned judge's conclusion in relation to causation was correct

In my opinion, the learned judge did not make any material error in determining the issue of causation against the appellant.
These objective facts and circumstances, at relevant times, indicate that the learned judge's conclusion was correct:
(a)The appellant consulted Dr Buters about the condition of his hands because the appellant's father had been actively encouraging him to 'go and get surgery to [his] hands' (ts 91); indeed, his father's encouragement was sufficiently intense and repetitive for the appellant to describe it as 'nagging' him to have surgery (ts 92).
(b)The appellant's father had undergone surgery successfully for a similar condition (ts 30, 120).
(c)The appellant's ambition was to continue to work as a bricklayer until at least age 65 (ts 58 ‑ 59).
(d)The physical restrictions imposed by Dupuytren's contracture will have significantly greater implications for a manual worker, such as a bricklayer, than for a person carrying out non‑manual work (ts 132, 240, 394).
(e)When the appellant consulted Dr Buters, Dr Buters informed him that the symptoms to his hand could get worse (ts 92).
(f)After the initial consultation with Dr Buters, the appellant's view was that he was going to Fremantle Hospital for the purpose of arranging corrective surgery (ts 92, 94).
(g)At Fremantle Hospital, the second respondent warned the appellant of the risk of infection and an anaesthetist warned him of the risks of a general anaesthetic. The appellant was aware that a general anaesthetic involved the risk of death during the operation. He was willing to and did proceed with surgery, notwithstanding the risks (ts 96, 101).
(h)Based on his normal practice, Dr Buters would have generated the 'referral' letter to Fremantle Hospital, in the appellant's presence, and the appellant would have heard Dr Buters state that the appellant requested corrective surgery to his left hand (ts 244).
(i)The appellant's Dupuytren's contractures would, without doubt, have progressed if he had not undergone corrective surgery (ts 246). That was Dr Buters' view when he consulted with the appellant in September 2000, and it was something which was his usual practice to communicate to the patient (ts 246).
(j)Surgery is the only treatment available for Dupuytren's contracture (ts 240). There is no effective non‑surgical treatment available (ts 246).
(k)According to Dr Buters, the appellant was in the category of patients whose life was being interfered with by Dupuytren's contracture. His condition constituted a 'significant impairment' and, on that basis, Dr Buters considered surgery was reasonable and therefore referred him to Fremantle Hospital (ts 259).
The objective facts and circumstances I have recounted are based on or consistent with the appellant's own evidence (in the case of paras (a) ‑ (c) and (e) ‑ (g)), the evidence of Dr Faithfull, the second respondent and Dr Buters, which the learned judge relevantly accepted (in the case of para (d)) and Dr Buters' evidence, which her Honour plainly accepted (in the case of paras (h) ‑ (k)). Most of the objective facts and circumstances are referred to by her Honour at [98] ‑ [101] of her reasons.
Further, the learned judge made the following findings of fact:
(a)In 2001, the Dupuytren's contracture in the appellant's hands, especially his left hand, was of sufficient significance and concern for the appellant to raise and discuss the issue with his father [98].
(b)As at June 2001, the appellant's condition was affecting his ability to carry out his occupation of bricklaying to the point where he was 'keen' to undergo surgery in an endeavour to resolve the problem, even though he knew that general anaesthesia carried a risk of death during surgery and the surgical procedure carried the risk of infection [99].
(c)By early 2001, the progress of the Dupuytren's contracture in the appellant's left hand was adversely affecting his livelihood and this remained the case as at June 2001 [100].
The findings of fact I have set out were reasonably open. As to para (a), the appellant acknowledged that his father had been 'nagging' him to have surgery. As to para (b), the finding that the appellant's condition was affecting his ability to carry out his occupation of bricklaying to the point where he was 'keen' to undergo surgery etcetera was open on the basis of the appellant's evidence in cross‑examination combined with Mr Stevens' evidence. The other finding in para (b) is based on, and consistent with, the appellant's own evidence. As to para (c), this finding was open on the basis of the appellant's evidence in cross‑examination combined with Mr Stevens' evidence.
The appellant admitted in cross‑examination that between September 2000 and June 2001 he and his son did very little bricklaying work (ts 61). Their total business income during the financial year ended 30 June 2001 was $29,000 (ts 62). The appellant was not working full‑time as a bricklayer in the six months before his surgery (ts 64).
It is true that the appellant denied his bricklaying work was being adversely affected by the condition of his hands. This was corroborated, to some extent, by evidence from his wife. It is also true that the appellant denied there was plenty of work available for bricklayers in 2000 and 2001 with the building firm, Don Russell Homes. There was some corroboration from Mr Goldsword and Mr McCrudden of his evidence as to the state of the market for bricklayers in 2000 and 2001.
However, the learned judge preferred, and was entitled to prefer, the evidence of Mr Stevens, whom she described as 'a forthright and objective witness' [100], to the effect that the appellant or his firm, S & J Bricklayers, were providing bricklaying services in 2000 to Don Russell Homes and that there was no downturn in the building work being carried out by Don Russell Homes in 2000 or 2001 or in the availability of work for bricklayers from that company in 2000 or 2001 (ts 473 ‑ 474).
I have examined the transcript of the evidence of Mr Goldsword, Mr Stevens and Mr McCrudden. That examination indicates Mr Stevens was indeed 'a forthright and objective witness'. By comparison, Mr Goldsword was uncertain or confused as to the time when he ceased to be employed by Don Russell Homes. The evidence strongly suggests he in fact left the company in 1999 and his recollection of the impact of the goods and services tax (which came into force in mid 2000) did not relate to the availability of work with that company. Mr McCrudden conceded in cross‑examination that he was not carrying out any work for Don Russell Homes during 2000 or 2001.
In the circumstances, the learned judge was entitled to infer that the reason why the appellant did very little bricklaying work between September 2000 and June 2001, and was receiving unemployment benefits in the form of a Newstart allowance, was the condition of his hands and, as a result, he was 'keen' to undergo surgery in an endeavour to resolve the problem.
The learned judge considered and rejected the submission made on behalf of the appellant at trial that he was a conservative person and, objectively, it was likely that if he had been warned of the risk of palmar hypersensitivity, he would not have undergone the corrective procedure in June 2001 or at all. Her Honour said:
It is suggested that the plaintiff was a conservative person in the sense that he would carefully evaluate any risks in a medical context before making a decision relevant to treatment, for example, undergoing or declining surgery and that this supports the assertion that there is no reason to reject the plaintiff's evidence that had he been warned of hypersensitivity or possibly being unable to continue to work as a bricklayer, which he says he was not told, then he would not have pursued what essentially was elective surgery. Reference was made to, for example, the plaintiff having had a discussion with Dr Anderson and declining a nerve block in order to deal with the pain he was experiencing following the surgery. It is to be noted, however, that the plaintiff was largely guided by his discussion with Dr Anderson and further, and importantly, he said that in effect the pain was not that bad or so bad that he, being the plaintiff, was prepared to undergo a nerve block. Similarly, the plaintiff gave evidence that at a later time he rejected the offer of a pin being inserted into his ankle to assist with a poorly healing broken ankle because of the risks involved. These examples however, in my view do not lead to a conclusion or to the inference that the plaintiff would, as he asserts, have refused to undergo surgery on his left hand if he had been told of the risks associated with surgery or possible risks associated with it [83].
These findings and conclusions were reasonably open to her Honour.

The appellant's evidence about his broken ankle merely indicates that, at some unspecified time before 2001, the appellant, after discussions with his medical practitioner, decided to permit his ankle to heal conservatively rather than to risk the insertion of a pin in circumstances where conservative treatment would heal his ankle. In other words, unlike the present case, there was an alternative form of treatment which would repair the appellant's injury. The appellant's evidence of his consultation with Dr Anderson about the possibility of a nerve block indicates his willingness to rely on medical advice in circumstances where the degree of pain he was experiencing was, according to Dr Anderson, insufficient to warrant the procedure or to risk the possibility of side‑effects. I note there was no evidence from the medical practitioners in question and there was no evidence as to the likelihood or degree of risk that the appellant might suffer the complications or side‑effects he mentioned.
Counsel for the appellant's submissions to this court, in the context of ground 2 of the appeal, failed to have proper regard to the necessity to treat with caution the appellant's evidence that he would not have had the surgery in June 2001 or at all if he had been warned of the risk of palmar hypersensitivity as a post‑operative complication.
It is not of any consequence that the appellant was not cross‑examined directly on his assertion in evidence‑in‑chief about his 'belief' as to what he would have done if he had been warned of the risk of palmar hypersensitivity. He was cross‑examined indirectly in relation to that issue for the purpose of eliciting objective facts and circumstances that were inconsistent with his professed 'belief'. That approach by counsel for the respondents was sensible and productive. Nothing was to be gained by merely putting to the appellant that his alleged 'belief' was not genuine. See, in this regard, the comments of McHugh J in Chappel [32] fn (33).
Counsel for the respondents accepted at trial that the second respondent had a duty to warn the appellant of any material risks associated with the surgical procedure. Counsel did not, however, make any concession as to the magnitude of the risk of the appellant (or any person) suffering palmar sensitivity as a result of undergoing corrective surgery.
Finally, in the context of ground 2 of the appeal, there is no substance in the appellant's complaint that the learned judge failed to give 'adequate consideration to and provide adequate reasons'. Her Honour's reasons at [97] ‑ [103], read in the context of her reasons as a whole, adequately set out her findings and explain her reasoning process. They do not reveal a failure properly to consider and determine the issues relevant to causation. Generally see Wheeler JA's comments in relation to the attack on her Honour's reasons and the duty of a trial judge in giving reasons.

Conclusion on ground 2 of the appeal

Ground 2 of the appeal fails. The appeal should be dismissed for the reasons given by Wheeler JA, and also for the reasons I have given.

The learned judge's failure to make a provisional assessment of damages

The trial before the learned judge concerned liability and damages. Her Honour said, in effect, that in view of her findings on liability, it was unnecessary to consider the issue of damages [103]. Her Honour should

have made a provisional assessment. If this appeal had been successful, it would have been necessary for the action to be remitted to the District Court for damages to be assessed. That outcome would have involved time and expense for the parties and a waste of judicial resources. Those consequences would have been unacceptable, and could easily have been avoided.

MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler and Buss JJA. I agree with Wheeler JA, for the reasons given by her Honour, that the appeal should be dismissed. I agree also with Buss JA that the appeal should be dismissed on the ground that the trial judge was correct in her finding that the appellant would, in any event, have undergone surgery for his condition in June 2001. I respectfully adopt the reasoning of Buss JA in that respect.