Rosenberg v Percival

[2000] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P26 of 1999

B e t w e e n -

IAN ROSENBERG

Applicant

and

PATRICIA PERCIVAL

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 11.20 AM

Copyright in the High Court of Australia

MS C.J. McLURE, QC:  May it please the Court, I appear with my learned friend, MR D.J. MARTINO, for the applicant.  (instructed by Messrs Clayton Utz)

MR E.M. HEENAN, QC:  May it please the Court, I appear with my learned friend, MR P.A. MONACO, for the respondent.  (instructed by Messrs Godfrey Virtue & Co)

GAUDRON J:   Yes, thank you, Ms McLure.

MS McLURE:   Your Honours, going to the nub of the complaint of the applicant in this case, it is that there are established principles and criteria in respect of the duty of a practitioner, a dental practitioner, to advise of the risks of a surgical procedure and there are also established principles and criteria by which an appeal court will set aside the findings of the trial judge based on the credibility of a witness.  We say, in both of those respects, the Full Court did not consider the relevant principles or criteria or, alternatively, if they were considered, that reasoned consideration was not given to those matters.

There are a number of matters and I want to start, firstly, with this question of whether the Full Court gave consideration or reasoned consideration to whether the relevant risk in the case was a material risk.  The first point we make is that by reference to all of the judgments in the Full Court, there is no consideration at any stage of matters that go to the question of materiality and those questions are:  what is the precise nature of the complication that has been suffered and what is the degree or likelihood of the risk of that complication occurring; what is the harm or the symptoms that arise from that complication ‑ ‑ ‑

GAUDRON J:   Why is that relevant?

MS McLURE:   Well, your Honour, whether or not there will be a duty to arise, whether objectively or subjectively, will depend upon the degree of risk and also the extent of the harm, so there is a direct correlation between the two.  If there is a small risk of greater harm, then there may more likely to be a duty to advise.  On the other hand, if there is a greater degree of risk but with smaller amount of harm or type of harm, then there may be no such duty.

GAUDRON J:   How does that advance your case in this matter?  There was a small risk of greater harm, was there not?

MS McLURE:   Well, the point is, we say, your Honour, that at not stage did the Full Court or, indeed, the trial judge ever make any finding of what the specific complication or the actual harm was.  Now, we say the – and that is a fundamental problem because engendered, in part, by the way the plaintiff put its case, but if one considers what the Full Court said the relevant risk was, namely, whether the applicant should have advised of the risk of temporo-mandibular joint disorder, we say to that, well, that is a generic concept, that covers a variety of conditions.  The risks of each condition arising will differ but, just as importantly, the consequence or harm occasioned by a particular category within that general rubric will be significantly different.

Now, in the context of this case, what the applicant had put and said was that the risk that the respondent claimed, that risk of harm being chronic permanent disabling pain and dysfunction of the jaw, was something that a person in the applicant’s position did not or ought not to have necessarily known.  Or, alternatively, one might put it in terms of foreseeability, namely, the risk of that consequence or harm occurring was not foreseeable or, alternatively, it was not something that the respondent knew or ought to have known.

GAUDRON J:   But the case did not proceed on the basis of foreseeability.  It seems to me that your arguments really do confuse foreseeability with materiality.

MS McLURE:   We say no, your Honour, because the question of foreseeability alone does not affect whether a risk is material.

GAUDRON J:   No.

MS McLURE:   There are other matters to be taken into account, for example, the degree of the risk.

GAUDRON J:   But the trial judge seems to have thought foreseeability impinged on the question, did he not?

MS McLURE:   Well, I think that is right.  Although the trial judge made no factual finding as to the harm actually suffered by this plaintiff, when he came to consider the question of causation, he proceeded on the assumption that the respondent’s case was made out, namely, chronic disabling pain with disability, and what the trial judge, I think, in effect, was saying, was this very question: well, really, that was not known or capable of being known and, therefore, there was no duty to advise.

HAYNE J:   Well, how, if at all, is this branch of your argument related to the findings of the trial judge at 151 and following, which are, I think, to the effect that “the x-rays disclosed no abnormalities”.  Is that finding, if it be so, related to this aspect of your argument in some way?

MS McLURE:   It is related to the way the trial judge approached the question and the way the Full Court perceived the trial judge to approach the question.  What happened was the trial judge said there was no indication prior to the operation of any temporo-mandibular joint problems and on one view, and at least the view that the Full Court took, that finding was the reason why the trial judge said there was no duty to advise.  What the Full Court said was that even if ‑ ‑ ‑

HAYNE J:   Well, firstly, do you say that the trial judge was right or wrong in this reasoning and, second, do you say the Full Court was right or wrong in its treatment of it?

MS McLURE:   We say, on one view of the trial judge’s approach, he was correct in so far as what the trial judge was doing, and I accept that it is not entirely clear, but in so far as what the trial judge was doing was saying, in effect, that there was no reasonable basis for the respondent to be aware of this complication arising, then we agree with the trial judge.  Now, that is not the way the Full Court read the decision of the trial judge.  What the Full Court said the trial judge meant was that if there was no advance notice of a temporo-mandibular joint disorder problem, then there is no duty to advise.

That, of course, is not the correct analysis because if the expert evidence established, that the fact he had no symptoms of the TMJ disorder prior to the operation, that still does not mean there is no risk subsequently of developing TMJ disorder.  What the experts at no stage ever did, was consider the precise – and the question arising in this case, namely, whether if you had no advance notice of a TMJ disorder, whether there is a risk of chronic disabling pain and dysfunction.  No expert evidence went that far.  Indeed, the Full Court did not address the question.  The Full Court did not address the question, it simply did not consider all of the matters relevant to materiality and what was known or ought to have been known by the profession at the time.

Now, a close reading of the reasons for the Full Court, we say, illustrate that the judges did not either turn their mind to the question of all the relevant issues relating to materiality to make that decision, or if they did, that they did not give reasoned consideration.  Justices Owen and Kennedy clearly identified materiality as a relevant issue but then they supported the judgment of Justice Wallwork.  The way Justice Wallwork approached the problem was to focus on what he thought was the error of the trial judge, the error of the trial judge being, if there is no known problem of a TMJ disorder when you go to do the operation, then there is no duty to advise.

So, when his Honour Mr Justice Wallwork was considering the question that arose in this case, he did not consider materiality and his reasons bear that out.  The only thing he considered, we say, is whether, if there is a known risk of an event occurring then there is a duty to advise.  Well, that, of course, misstates ‑ ‑ ‑

GAUDRON J:   That is not entirely correct though, is it, Ms McLure, because his Honour considered materiality from the point of view of the applicant.  Your argument has to be that materiality is not purely a matter subjective to the patient, has it not?

MS McLURE:   Well, your Honour, in our submission, that is not a correct reading of his Honour Mr Justice Wallwork’s treatment.  He was focussed from the outset on the question of whether, if there is no problem of TMJ before doing the operation, that means there is no duty to advise.  What his Honour Mr Justice Wallwork did was go through the expert evidence and in so far as he went through the expert evidence, he did so for that limited purpose and it is clear from his reasons at paragraph 97 at page 192 that that is where the analysis was leading him.

If his Honour was considering materiality, his Honour would be considering two aspects.  He would be considering the objective factors and the subjective factors.  In relation to the objective factors, the first consideration must be, what is the nature of the harm suffered and what are the symptoms?  Now, at no stage has anyone in the Full Court identified that issue.  If they had identified that issue, they would have then gone on to the next step, the argument advanced by the applicant, namely, that there was no reasonable basis for the applicant to have known of the possibility of this complication occurring, this precise complication, and therefore no duty to advise.

GAUDRON J:   Well, that seems to be foreseeability.

MS McLURE:   Your Honour, I think it probably can appropriately be classified in that way albeit it was not put in those terms either before the trial judge or before the Full Court.  It was put in terms of how his Honour Mr Justice Wallwork dealt with it, namely, if a medical or dental practitioner knows of the risk he or she must advise.

GAUDRON J:   Well, let us take it that it was not put that way at trial or in the Full Court.  Why then is this a suitable vehicle to take on that issue?

MS McLURE:   Because, your Honour, no relevant issue was dealt with at trial.  That is the point.  Not even the ones at the very basic level.  This matter has to go back before a trial judge of the District Court.  The matter has to go back to determine questions of causation and damage.  Now, a close consideration of the reasons of the Full Court will show you that the precise nature of the complication has not been determined as a matter of fact, either by the Full Court or the trial judge.  The actual complications suffered by the respondent have not been found as a matter of fact by the trial judge or the Full Court and, indeed, all other objective and subjective considerations were not even considered in the reasons of the Full Court.

All that the Full Court considered was the generic concept of, should the applicant have advised of the risk of temporo-mandibular joint disorder?  Well, that question is not the correct question.  The question is, should the applicant have advised of the risk of the temporo-mandibular joint problem of the nature that this patient actually suffered causing chronic disabling pain and dysfunction because, ordinarily, TMJ disorders do not involve those symptoms. 

Going, your Honours, to the second element of the claim, and that relates to the decision of the Full Court to overturn the trial judge’s finding on causation, namely, that even if the respondent had been advised of the risk, that she would have proceeded with the surgery in any event.

HAYNE J:   An issue which the Full Court have ordered should go back for further trial.

MS McLURE:   That is correct.  But the submission on behalf of the applicant is that the Full Court, when considering this issue, did not apply the established principles or, at least did not, in their reasons, give any indication that they had applied them.  The did not, for example, say that the findings of the trial judge in this regard were glaringly improbable or that there was incontrovertible evidence which was inconsistent with the factual finding made by the trial judge.

HAYNE J:   Well, at least, as at present advised, it seems to me that must be so given that they have ordered it to go back for retrial.  They cannot have considered glaring improbability or such considerations if they see fit to send it back for reagitation.

McHUGH J:   In addition, if I might add, at page 192, I am not sure I understand Justice Wallwork’s process of reasoning where he says that the trial judge, in considering the appellant’s credibility should have taken into account “the important matter of the severe effects which the

complications” had upon her.  Well, I can understand that in a general sense, I do not understand what it has to do with the question of causation.  Either her evidence was reliable or unreliable on that point and what the reasons for it were is completely irrelevant.

MS McLURE:   Yes, your Honour, and it was Justice Wallwork who gave the leading judgment of the court and he relied on that submission, the relevance of which we say does not arise and also on the question of drawing an adverse inference about the garden.  Well, in relation to the garden inference, that is not a matter which the trial judge specifically relied on when he came to formulate his view on whether or not the respondent would have acted any differently even if she had known.  The proposition that we put is this.  There is no basis, in principle, for the Full Court to have intervened and overturned the trial judge’s finding on credibility.  It purported to do so even when it itself had not, and the trial judge had not, made any finding as to the nature of the harm actually suffered, namely, whether this respondent had indeed suffered disabling or chronic pain.

The trial judge proceeded on the assumption that she had suffered that pain and he dealt with the question of causation on that basis.  He took into account objective facts.  He took into account his assessment of the reliability of the witness.  Based on all of those matters, and clearly weighing heavily in his mind, was his assessment of the reliability of the witness and on taking into account all those matters, he said that the respondent had not proved causation, in which case the decision of the trial judge should have stood.

Your Honours, in closing, the only point that I want to stress is that there has been no proper adjudication by the Full Court of the central issues relevant to a determination of the facts and legal principles in this case.  I say that on the basis of the failure to give consideration to all relevant matters going to the question of materiality.  Your Honours, they are the submissions for the applicant.

GAUDRON J:   Yes, thank you, Ms McLure.  Yes, Mr Heenan.

MR HEENAN:   May it please your Honours.  For the proper adjudication of this trial according to law, the trial judge in the Full Court, had it proceeded to a final decision, was required to address all sequential decisions.  The second, third and fourth were each dependent on the first and upon each other, so that if the first decision was wrongly addressed and resolved, the resolution of the succeeding issues would be vitiated.  The four questions, in our submission, are these.  First, was there a duty to warn of possible complications from the bilateral sagittal osteotomy, especially a temporo-mandibular joint disorder.

His Honour found that there was no such obligation and in finding no such obligation did not postulate the kind of warning which would have been appropriate had it been necessary, and because no such postulation was made, the reaction of the patient, or the hypothetical reaction of the patient in the face of a proper warning, was not and could not be examined.  The second question is, if there was a duty to warn, was any adequate warning given?  The answer was, by the Full Court, plainly, no.  Strangely, there was not included in the learned trial judge’s reasons for decision the actual written information pamphlets that were given to the patient but, as emerges from the Full Court’s reasons, they were completely silent on the issue of possible TMJ disorders and they contained otherwise reassuring content that the patient would be ‑ ‑ ‑

GAUDRON J:   There was no issue about that, was there, Mr Heenan?  The applicant himself gave evidence that he did not give a warning.

MR HEENAN:   That is right, your Honour, but the actual information sheets which were handed out included a paragraph which was reassuring in the sense that, apart from minor anaesthetic effects in the lip region, it could be expected that the patient would be back to work in four or six weeks.  Your Honours, the third question is that if there was an omission to warn, did that cause, in the legal sense, the patient to accept the treatment when, if properly warned, she would not have done so.  Now, plainly, to answer that question, one needs to address what the proper warning would have been and to assess its reaction on the patient.  In the absence of the formulation of the warning, any findings which were made are completely unreliable.

McHUGH J:   Why should that be so, having regard to the way you raised the issue?  You addressed that issue, if I understand the case rightly, quite late in your case and you put specific questions, and that was the way the case was conducted.  Then the judge said, at page 154 of the book, that:

in the circumstances that even if the plaintiff had been warned of the slight possibility, and certainly it was very slight, of complications she would have proceeded with the surgery in any event.

Now, how can the Full Court set aside that finding?  I mean, I do not think any finding of credibility would be safe if the reasons given by the Full Court in this case are a sufficient ground for setting aside findings which depend upon credibility.

MR HEENAN:   Well, your Honour, this is a case which falls within the Devries test where a finding of credibility can and should be upset by an appeal court where the learned trial judge has not properly utilised the advantages which come from hearing and seeing the witnesses.  What his Honour did, unfortunately, was to determine the question of the need for a warning or the type of a warning on issues of credibility whereas ‑ ‑ ‑

McHUGH J:   But he saw the plaintiff in the witness box; he formed a view about the sort of woman she was and having regard to the slight possibility of the relevant complications, he came to the view she would have proceeded with the surgery in any event.  How can an appellate court set aside that finding?

MR HEENAN:   But that, your Honour, is in the setting of where the learned trial judge considered that there was no need for a warning and that no particular type of warning was formulated or addressed.  Now, obviously, the reaction of a patient or plaintiff to a proper warning depends upon the content of the warning and an examination of the patient’s circumstances, intentions and inclinations in the face of that warning.  None of that was done by the learned trial judge.

McHUGH J:   No, but that reflects the way you conducted the case.  I mean, you asked the witness, “If you had been advised by Dr Rosenberg that there was some, perhaps, very small chance of any adverse outcome, what would you have done?”.  The witness said, “If there had been any risk, I would not have had the surgery”.  The judge did not accept her evidence on it.  Again, you asked about some small irreducible risk and the witness said she had lived with her malocclusion all her life.  That was the way the issue was conducted.  That was the way you conducted your case and the judge rejected your case.

MR HEENAN:   That is quite true, your Honour, but, in our respectful submission, what has occurred is that the only point at which credibility became an issue was the reaction which the plaintiff would have to a proper warning.  Now, his Honour appears to have labelled this plaintiff as a thoroughly unreliable witness and his inclination to do so stems, not so much from her answer to the questions dealing with that issue, the only issue upon which credibility depended, but on an entirely anterior examination of whether or not a warning should be given, and his Honour has ‑ ‑ ‑

McHUGH J:   All I was putting to you is that you yourself did not put to her a particular type of risk.  You left it in terms of generalities:  adverse outcome; small irreducible risk of adverse complications or bad outcome; and that was how you dealt with it, it was your case.  I am not criticising the way you conducted it, but that was the way the case was run.

MR HEENAN:   I am quite happy to accept that, your Honour.  The point that I am attempting to make is that the finding of credibility on that issue, the only issue of any importance in relation to credibility was infected by impressions taken from collateral examinations.  His Honour had reached an adverse impression about the credibility of the respondent - plaintiff long before he got to this issue.  He had branded her as unreliable and treated her unreliability as a cause for rejecting the need for a warning.  That, in my respectful submission, is a misuse of the findings of credibility in the case.  His Honour treated credibility as ‑ ‑ ‑

McHUGH J:   But did not the learned judge say that he had formed an adverse view about her at the end of her evidence in‑chief and it was confirmed in cross-examination.  He even said she prevaricated at one stage.

MR HEENAN:   His Honour did say those things, your Honour, and the Full Court has, in effect, concluded that they were unjustified.  Unjustified in the sense that they were unreliable.  It is no doubt because of those findings doubting her credibility that the matter has been sent back ‑ ‑ ‑

McHUGH J:   But how can a Full Court say that they were unjustified?  They were not at the trial.  They did not see the witnesses.  They did not see the witness give evidence.  Full Courts and intermediate Courts of Appeal have to respect findings of fact given by trial judges who have the advantage of seeing and hearing the witness.

MR HEENAN:   That is true, your Honour, but Devries’ Case indicates that, ultimately, any appellate court in a rehearing is bound to review findings of fact, just as much as any finding and this particular ‑ ‑ ‑

McHUGH J:   Yes, but in Devries we reversed the Full Court and restored the trial judge’s finding.

MR HEENAN:   Yes, but that does not derogate from the principle that there is a full right of appeal and if the finding on credibility is thought to be unreliable because the process of reasoning which produces the conclusion about credibility is falsified, it is unreliable.  That is why the Full Court, in our respectful submission, has ordered a retrial on issues including causation, instead of simply remitting the matter for assessment of damages.

McHUGH J:   But, Mr Heenan, you will remember in Devries one of the reasons that the Full Court set aside the trial judge’s findings was because they thought that his findings on credibility were inconsistent with admissions the plaintiff had made in documents, including his application for a workers’ compensation payment.  Now, if that could be set aside, why should ‑ ‑ ‑

MR HEENAN:   There is nothing like that here, your Honour.  There are no ‑ ‑ ‑

McHUGH J:   But that seems to me only to make your position worse.

MR HEENAN:   Your Honour, our situation is that the Full Court has, in effect, found that his Honour’s findings of credibility are unreliable because his Honour has strayed beyond the issues to which credibility were pertinent and he has made a general labelling of this plaintiff as unreliable.  He has extended that to deal with issues of liability, the need to warn, and of that kind.  It is if findings of credibility are some general talisman to render the decision appeal proof.  The Full Court has, in our respectful submission, vindicated the proper principle that all findings are reviewable.

It has indicated in as many words that this is one of those unusual cases where a credibility finding needs to be reversed, but as Justice Kennedy has indicated in his reasonings, there being substantial doubt about the reliability of the plaintiff’s evidence, the issue on which credibility really does depend should be retried.  That, in my respectful submission, is a responsible exercise of the reviewing power.  Other than this, your Honour, this is just a simple case of applying the rules in Rogers v Whitaker and Chappel v Hart, with no special point.  May it please your Honours.

GAUDRON J:   Thank you, Mr Heenan.  Ms McLure, we need not trouble you further in this matter.  There will be a grant of special leave.

Ms McLure, are you in a position to indicate approximately how long the hearing of an appeal would take.  It would comfortably conclude within a day, would it, in your estimation?

MS McLURE:   Easily within a day in my estimation, your Honour.

GAUDRON J:   Mr Heenan, do you confirm that?

MR HEENAN:   Yes, your Honour. 

McHUGH J:   Ms McLure and Mr Heenan, I certainly would be assisted on the appeal by any material in medical journals or otherwise that you can put before the Court as to how the rule in Rogers v Whitaker is working out in practice.  I notice that Professor Goss gave evidence about how patients are sometimes unhappy to be given these very full warnings and I would just like to have some assistance.  It may turn out to be totally irrelevant to the legal issues, but I would like to understand the social background of it.

MR HEENAN:   May it please your Honour.

GAUDRON J:   Thank you.  Call the next application.

AT 11.53 AM THE MATTER WAS CONCLUDED