Rosenberg v Percival [2001] HCA 18 5 April 2001 P44/2000
ORDER
1.Appeal allowed.
2.Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 25 May 1999 and in place thereof order that the appeal to that Court be dismissed.
3.The respondent to pay the costs of the appeal to this Court and before the Full Court of the Supreme Court of Western Australia.
On appeal from the Supreme Court of Western Australia
Representation:
C J McLure QC with D J Martino for the appellant (instructed by Clayton Utz)
E M Heenan QC with P A Monaco for the respondent (instructed by Godfrey Virtue & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Rosenberg v Percival
Negligence - Breach of duty - Surgeon's duty to warn of material risk in proposed surgery - Identification of the material risk - Meaning of material risk.
Negligence - Causation - Whether failure to warn of a material risk causative of plaintiff's injury - Whether patient would not have undergone treatment if warned.
Appeal - Appeal by rehearing - Powers of appellate court - Decision dependent on credibility findings - Authority of appellate court to reach conclusions different from trial judge.
Evidence - Credibility of witnesses - Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Words and phrases - "material risk".
GLEESON CJ. The facts of the case are set out in the reasons for judgment of Callinan J.
Two main issues were argued in this Court. The first is whether the appellant was in breach of his duty of care to his patient, the respondent, when he failed to bring to her notice the risk of a certain kind of harm she might suffer in consequence of surgery he undertook to perform. The second is whether, if there had been such a breach of duty, it was causally related to the respondent's injuries. That in turn involved the question whether, if she had been made aware of the risk, the respondent would have decided not to undergo the surgery. The trial judge found against the respondent on both issues. The Full Court of the Supreme Court of Western Australia reversed the first finding, and ordered a re-trial on the second[1].
I agree with Callinan J that the appellant is entitled to succeed on the second issue, and that the Full Court was in error in over-ruling the trial judge's findings on causation. It is therefore unnecessary to decide the first issue. However, since the two issues are related, it is convenient to make some comments about the first matter, by way of introduction to the second.
The case was conducted at trial,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Rosenberg v Percival [2001] HCA 18
Case
[2001] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by a surgeon, Dr. Rosenberg, against a decision of the Full Court of the Supreme Court of Western Australia. The case concerned a claim in negligence brought by a patient, Ms. Percival, who alleged that the surgeon had failed to adequately warn her of a material risk associated with a surgical procedure. The dispute centred on whether the surgeon had breached his duty of care and, if so, whether that breach had caused Ms. Percival's injury.
The legal issues before the High Court included the test for identifying a "material risk" in the context of a surgeon's duty to warn, and the principles governing causation in such cases. Specifically, the court had to determine whether a patient's failure to undergo treatment, if properly warned, was causative of their injury. The High Court also considered the powers of an appellate court when reviewing a trial judge's findings of fact, particularly those based on the credibility of witnesses, and the extent to which an appellate court could substitute its own conclusions.
The High Court acknowledged that the trial judge had erred in his assessment of certain evidence regarding the condition of the patient's garden, but found this error did not decisively impact the overall assessment of the patient's credibility. The court affirmed that Australian law applies a subjective test to determine whether a patient would have refused a medical procedure if warned of a material risk. This means that if the patient's testimony regarding their hypothetical decision is believed, they will succeed, even if objective facts suggest otherwise. Conversely, if the patient's direct testimony is rejected, they bear a significant evidentiary burden to prove causation based on objective facts and probabilities. The court noted that determining what a patient "would have done" in a hypothetical scenario requires an anterior finding as to what they "would have decided" if properly warned, with the onus on the patient to prove this hypothetical decision.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Western Australia and dismissing the appeal to that court. The respondent, Ms. Percival, was ordered to pay the costs of the appeal to the High Court and the costs incurred before the Full Court of the Supreme Court of Western Australia.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 25 May 1999 and in place thereof order that the appeal to that Court be dismissed.
3. The respondent to pay the costs of the appeal to this Court and before the Full Court of the Supreme Court of Western Australia.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH J
GUMMOW J
KIRBY J
No doubt the trial judge erred in one respect. He regarded the claims of the patient and her husband concerning the deteriorating condition of their garden as dishonestly made. No suggestion of dishonesty in respect of this matter had been put to them in cross-examination. But it is impossible to conclude that this issue played a decisive part in the judge's assessment of the patient's credibility. It was merely one of many matters that led Gunning DCJ to conclude that the patient's testimony was generally unreliable.Conclusion Australian law is committed to a subjective test in determining whether a patient would have refused to undergo a medical procedure if that person had been warned of the risk of relevant injury. If the patient is believed, he or she succeeds even though the objective facts point the other way. If the evidence of the patient is rejected, he or she carries the heavy evidentiary burden of persuading the court to make a favourable finding on the causation issue solely by reference to the objective facts and probabilities. Courts frequently make findings as to states of mind based on nothing more than the objective facts and probabilities of the case. But usually such findings refer to the mental state that simultaneously accompanied some act or omission of a person. Thus, courts often have to determine whether an act causing harm was done with intent to kill or inflict grievous bodily harm, whether a representation was made with knowledge of its falsity, whether an omission to account for trust moneys was done with intent to defraud or whether a publication was made maliciously. The very doing of the act or the omitting to do the act, when considered in its context, generally throws much light on the mental state of the person concerned. But these cases are different from the "What if?" situation that arises when the court has to determine what a patient would have done if warned of a risk. In the "What if?" situation, the relevant mental state has not accompanied any act or omission of the patient. In terms of causation theory, the critical fact is whether the patient would have taken action – refusing to have the operation – that would have avoided the harm suffered. But that fact can only be determined by making an anterior finding as to what the patient would have decided to do, if given the relevant warning. It is not possible to find what the patient would have done without deciding, expressly or by necessary implication, what decision the patient would have made, if the proper warning had been given. If the court finds that the patient would have decided not to have the operation, it concludes that he or she would not have had the operation. What the patient would have decided and what the patient would have done are hypothetical questions. But one relates to a hypothetical mental state and the other to a hypothetical course of action. The answer concerning the hypothetical mental state provides the answer to the hypothetical course of action. The onus is on the patient to prove that he or she would have decided not to have the operation if given a warning of the risk of harm. That means that the patient must prove what he or she would have decided to do. When the direct testimony of that person on the causation issue has been rejected, it is unlikely, as a matter of fact, that the patient will succeed on that issue unless the objective evidence in favour of the patient is very strong.