Rosenberg v Percival P44/2000

[2000] HCATrans 626

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P44 of 2000

B e t w e e n -

IAN ROSENBERG

Appellant

and

PATRICIA PERCIVAL

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 2000, AT 10.21 AM

Copyright in the High Court of Australia

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

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

GLEESON CJ:   Yes, Ms McLure.

MS McLURE:   The summary of the submissions we put before you today on behalf of the appellant are these, that, firstly, there was a miscarriage of justice in the Full Court because the Full Court failed to give consideration or, alternatively, properly reasoned consideration to two matters, the first matter being whether it was shown that the appellant had knowledge of the risk of the respondent’s complications or whether the risk of the respondent’s complications was known generally to the profession, and the second point is, if it was known or ought to have been known, whether the risk was material.

KIRBY J:   Is that second point on the causation issue?

MS McLURE:   Yes, because we say that the factors going to materiality clearly overlap the factors going to causation.

KIRBY J:   I am just anxious to understand the order that was made by the Full Court because they appear to have sent the matter back for retrial on damages but also on the causation issue.  Am I wrong?

MS McLURE:   That is correct.

KIRBY J:   So how does that second question arise, the materiality?  You say it arises on the duty issue because, if it is an immaterial or inconsequential risk, then there is no duty, applying Rogers v Whitaker, for the doctor to tell the patient.

MS McLURE:   Correct, and no breach of duty.

KIRBY J:   So we do not have to concern ourselves at all with the causation issue?

MS McLURE:   We do because the Full Court overturned the finding of fact made by the trial judge to the effect that if the patient had been warned she would have gone ahead with the procedure, in any event.  So the Full Court overturned a finding of fact based on credibility.

KIRBY J:   But does that matter on the basis that if they were right on the duty issue it has to go back for the retrial which they ordered?

MS McLURE:   No, because the trial judge made his finding of fact on the basis that if, indeed, the respondent had suffered the complications, which is the temporomandibular chronic pain, she would have had the operation, in any event.  He referred to the subjective evidence, the objective factors, and on the basis of all of the material he drew the inference and reached that finding, which we say is supported, and strongly supported, by the evidence that the trial judge relies on.  So that even if we should have known or reasonably known of the risk, and even if the risk was material, the Full Court erred in its application of the principles in relation to the setting aside of facts based on findings of credibility.

KIRBY J:   So one last question, you could lose on the duty issue, that is to say the Court could conclude that the Full Court was right, that consistent with Rogers v Whitaker even such a small risk should have been brought to the notice of the patient, but still hold the verdict and judgment on the basis that even if that be so, the findings of the trial judge should not have been disturbed, that had the patient known she would still have gone ahead because the risk was so small.

MS McLURE:   Yes.

KIRBY J:   I follow.

CALLINAN J:   Just one question.  You need not answer it now, but what I am interested in is what the expert evidence was in each case as to the occurrence of the condition that the plaintiff had ‑ I think there was some evidence that three such cases had been encountered in Australia at one stage and then I think a different number was given at another stage – whether at some stage before you are finished you and Mr Heenan could summarise or give us an indication of what the evidence was as to the degree of incidence of her condition.

MS McLURE:   Yes.  I think that the interchange has teased out the issues that we wish to make submissions on today, so I will not go any further.  In order to appreciate the impact of the submissions that we make it is important from our perspective that the risk of the actual complication is identified.  Now, we say that is where the Full Court fell into error, albeit as a result of the way the respondent conducted her case before the Full Court, but we say that the relevant risk is the risk of what we describe as the respondent’s complications and the respondent’s complications are very serious:  they are chronic pain, chronic permanent pain, and significant jaw dysfunction.

Now, there are lesser complications associated with what has been described broadly by the Full Court as temporomandibular jaw disorders.  We deal with them in the submissions but I think at this juncture it might be convenient to summarise them.  It is a generic concept.  It covers a whole variety of possibilities.  It can affect the muscles of the jaw.  It can affect the bones of the jaw.  It can affect the joint of the jaw.  It can have no significant symptoms, save for a clicking in the jaw, which is of no significance.  It can have no or little pain.  It can have pain for a very short time.

The evidence that I will take you to as to the respondent’s complications will show that the incidence and knowledge of what actually occurred was outside what was to be expected by respected members of the relevant profession which is this oral surgeon’s.

GLEESON CJ:   This may not operate against your argument, it may be entirely neutral, but if there is a duty to warn, why would you limit the assumed warning to a warning of what actually occurred?  We know with the benefit of hindsight what actually occurred, but if your client in advance of the procedure was giving a warning and your client was under a duty to warn of what actually occurred, presumably that duty would extend to warning of a great many other things too.

MS McLURE:   Your Honour, the answer to the question is, firstly, the factual parameters were determined by the pleadings and the pleadings identified the respondent’s complications as being the matter of which we should have warned.  Now, it may be the case that where the quality of the connection between the conduct and the damage falls within the same general area, for example, temporomandibular joint disorders, that having regard to all the relevant matters going to materiality, a lesser warning or a warning of a lesser complication may have been justified in the circumstances.  But that was not the case which was pleaded and there is no finding by the trial judge, or, indeed, the Full Court, that there ought to have been a warning of temporomandibular jaw problems with complications that were less serious but known.

GLEESON CJ:   But did anyone address the question, either in evidence or in argument, from the point of view of what your client would have or should have said, not by way of warning in relation to the specific thing that actually occurred, but by way of the warning that should have been given of all potentially significant risks, including the one that actually occurred?

MS McLURE:   No.

GLEESON CJ:   Because if the doctor had fulfilled the assumed duty of care, presumably the warning about what actually occurred would have been given in a much wider and more elaborate context.

KIRBY J:   This is for you because it is the source of the criticism of Rogers v Whitaker that doctors and others are being forced, in a sense, in a necessarily short time frame to give the benefit of a whole lifetime of medical experience and medical training.

MS McLURE:   We accept and understand the force of that argument but say it applies regardless of whether there is a known theoretical risk.  Our submission is that the same onerous duty on doctors, we say very difficult and, therefore, should be narrowed in terms of materiality, applies even if there is knowledge of a foreseeable risk, in this case where there is no knowledge of permanent pain and loss of jaw function, not only associated with the jaw but not with any other aspect or risk of the procedure itself.

Your Honours, when it came to the evidence as to what it was that ought to have been the subject of a warning, the evidence is very thin.  Those experts in the field who gave a view as to whether it was appropriate or not to warn addressed themselves firstly to something that was significantly less than the respondent’s complications, because no one else knew about it save for one Professor Goss, but, secondly, the content of the warning was never identified.  So we are left in this case with no evidence as to the broad content of a warning, in any event.  For example, I am not able to point your Honours to any evidence to suggest that it was appropriate to give a warning of temporomandibular joint disorder with complications that will pass with appropriate conservative treatment.

It is highly relevant in this context because the appellant gave an information sheet and the information sheet gives a whole variety of information as to what is involved in orthognathic surgery and what is involved in orthognathic surgery includes a risk of nerve damage so that you have permanent numbness in your mouth, and that risk warning was given.  This sheet also gave warning of pain but not of permanent pain.  This information sheet also gave warning of jaw dysfunction and time within which that jaw dysfunction could remedy itself.

CALLINAN J:   Can you tell me what difference, if any, there was between what the information sheet said and your client’s evidence which is summarised at page 1125 or which is actually quoted at page 1125 in volume 6?  Your client had been asked:

“What percentage of patients suffer from problems?

MS McLURE:   Yes.

CALLINAN J:   Where do I find the information sheet, by the way, in the record?

MS McLURE:   It is at 1048 of volume 6.

CALLINAN J:   Just one other question, was there any evidence whether ‑ ‑ ‑

MS McLURE:   I apologise, it is 3, 627.

CALLINAN J:   Volume 3, page 627.  I will just ask you another question before perhaps you deal with the first matter that I asked you.  Was there any evidence whether there was a practice on the part of your client simply to have the nurse give the information sheet to the client?

MS McLURE:   Yes, there was.  I am sorry, the evidence was that the nurse handed it to him, that the appellant was present when the nurse handed it to him and that it was the nurse’s practice to provide the information.

CALLINAN J:   That is really what I am interested in.  Was there any evidence then as to whether any questions that this client may have wished to ask would have been asked of the nurse or of the doctor?

MS McLURE:   The evidence was that when she was handed the information sheet in his presence the trial judge found that he said to her, “If you have got any questions let me know”.  So he gave her the opportunity to identify and ask – or pursue any matters that were of concern to her.

CALLINAN J:   But you would have to read the information sheet first.  You could hardly expect any informed sensible questions there and then, could you?

MS McLURE:   Yes.  That is correct.  In this case the information sheet was given to her on the February appointment.  There was a ‑ ‑ ‑

CALLINAN J:   It was an issue but you won on that issue.

MS McLURE:   We won on it.  The trial judge found that she was given the information sheet at the February consultation.  There was another consultation between the patient and the practitioner subsequently, of which the decision or the discussion concerning the decision to proceed with the surgery arose.  She was asked whether she had any questions and the trial judge found that she did not pursue any aspect of the matter.

CALLINAN J:   Thank you.  Well, that answers that question.  Then the first question I had asked you about any differences between the evidence quoted at page 1125 and the information sheet itself.

MS McLURE:   The information sheet at volume 3, page 628.

CALLINAN J:   Yes, I have got that.

MS McLURE:   Page 2 ‑ ‑ ‑

CALLINAN J:   There do seem to be differences, do there not?  The risks are dealt with, I think, at page 628 from about line 17.

MS McLURE:   That is right.

CALLINAN J:   The risk of anaesthesia is:

no greater than for any other surgical procedure.

MS McLURE:   Yes.

CALLINAN J:   There is no reference to, for example, going back to page 1125, problems associated with about 10 per cent of the cases.

MS McLURE:   Your Honour is correct that the information sheet does not identify in terms temporomandibular pain disorders.

CALLINAN J:   But it does not identify any risks at all, statistically, does it?

MS McLURE:   No, it does not identify any statistical risks at all.  All it refers to is the possibility of pain and the possibility of impaired jaw function for some unspecified time.

CALLINAN J:   Where is that?

MS McLURE:   It is at page 628, in the third paragraph from the bottom at line 27:

A complete return to normal function may take several weeks or months.

KIRBY J:   Well, that is pretty fatal to you on Rogers v Whitaker, is it not?  I mean, first of all, this is a current practice and a good practice to have a document which a patient can take away and think about and read about, but it is not a substitute for the doctor or dentist bringing the weight of their experience to bear to bring home risks and one risk is of permanent temporomandibular pain and that is neither in the document nor was it in the course which your client adopted and, therefore, a risk, a small risk but a risk known to the profession was not brought to the attention of the patient.

MS McLURE:   Two points, the risk of permanent TMJ problems was not known generally to the profession and was not known to the appellant.  That is the point.

KIRBY J:   Well, there was a conflict of evidence about that, was there not?

MS McLURE:   No, there was no conflict of evidence.  The trial judge made the finding and there is no evidence to the contrary.  In his Honour Justice Wallwork’s judgment there is, perhaps you can say, a passage taken out of context, and I can come to that shortly, but the evidence was clear:  the appellant did not know of the possibility of chronic pain and loss of jaw function and the rest of the profession did not either.  One senior practitioner, Professor Goss ‑ ‑ ‑

KIRBY J:   That is right.

MS McLURE:   At the time that this surgery occurred there had been one event.  One event which had not been referred to in any of the international journals or any forum in which these matters are discussed.  That was Professor Goss’ evidence.  Further, even if one is trying to theorise about potential possibilities as the last category, if you like, that does not even arise on this case because it emerged and the expert evidence accepted by the trial judge was that there was a displaced condyle, a ball of the joint, and if you have a displaced condyle then the pain is invariably not permanent and the dysfunction is invariably not permanent because if you have a displaced condyle the effect is that the body responds to the recently innovated pain area and dulls it.  So you have a short time at which the body accommodates itself to the change in the position of the cartilage.  That is transient and at that stage it was unknown, at least to the appellant and the rest of the profession, that permanent damage could occur.

KIRBY J:   I remember reading that but I am not sure that I really understand what a condyle is.  Would you explain that?

MS McLURE:   The ball of the joint.  It is the jaw joint that occasioned the problem in this case.  The ball of the joint is the condyle.  The condyle comes into contact with soft tissue which is variously described as a cartilage or a disc.  In this case the expert evidence was that because the respondent had a severe malocclusion the disc was able to move to enable the jaw to move forward but it was reducible, it went back to its original position.  As a result of the osteotomy and the change in the position of the jaw, the ability of the soft tissue, the cartilage or the disc, to return should have been temporarily impacted, but not permanently.

Your Honour, if I can pursue even further ‑ that addresses the facts but, in our submission, this is not a case where the second limb of Rogers v Whitaker is activated.  This is the first limb.  This is not a duty occasioned by the subjective and articulated concerns of the patient.  This is the hybrid objective limb, the “what a reasonable person in the patient’s position would have done”.  In our submission, this takes it outside the facts of both Rogers v Whitaker and Chappel v Hart.

So it is a matter anew, if you like, and it is a matter for this Court to determine the parameters of the test and I suppose concepts such as “likely” and “significant” fall for consideration, but what we submit is that where you have the first limb, the hybrid objective limb, of Rogers v Whitaker, then the remoteness of the risk becomes a factor which can be given considerably more weight as a means of reducing the onerous task that is placed on a medical or a dental practitioner in having to fulfil the requirements of the duty to warn, but perhaps I can come back to that in the course of developing the argument.

GLEESON CJ:   Yes.

MS McLURE:   I am advised by my learned junior that the evidence at volume 3, 467 of Dr Rosenberg was that after the pamphlet had been handed out there was a further consultation on 23 April but I do not understand that to be addressing the point, the point being, why did we not advise specifically of temporomandibular joint disorder or the respondent’s complications?  The response is we did not know that it was a possibility, even theoretical, at the relevant time.

CALLINAN J:   And that is very much supported by Professor Goss’ evidence which is quoted at page 1088 at line 33 where he says that the plaintiff’s complications, or the occurrence of those:

certainly it would be one amongst many hundreds of thousands.

I suppose that is the strongest evidence for you in the case, is it not?  At the foot of 1088.

MS McLURE:   Yes, your Honour, that is to overstate the degree of the risk.  It is dealt with more fully – and perhaps if I can just take your Honours to that evidence now.  It is at volume 1, page 229.  Professor Goss’ answer starts at line 12 and in summary his evidence was that there was one patient that he was aware of that had similar sorts of symptoms pre-operatively who had an osteotomy and who suffered the respondent’s serious complications.  He then did the calculations and if you go down to about line 40 he makes the assessment of the incidence:

On that basis, if you take three out of 20,000 then you end up, I guess, with an incidence of 1 in 6000.

KIRBY J:   That is less than the Rogers v Whitaker.

MS McLURE:   It certainly is, your Honour.  One in 14,000 but where a subjective materiality intrudes.

GLEESON CJ:   Is Rogers v Whitaker authority for something about a number?

MS McLURE:   No, your Honour.

KIRBY J:   But it was a very small risk and yet this Court ‑ ‑ ‑

MS McLURE:   It was even smaller than one in 14,000 because the risk of one in 14,000 was the sympathetic ophthalmia and then the consequences of sympathetic ophthalmia cover a spectrum and Mrs Whitaker suffered the worst at the end of the spectrum, so, indeed, the risk was significantly higher, but in that regard we say that the evidence of Mrs Whitaker’s concerns and questioning transformed the issue of the statistical risk to a question of, “Would a reasonable person, based on the interaction with Mrs Whitaker, infer that she wants to know whether there is any risk of damage to her other eye?” and the answer was yes.

KIRBY J:   And Chappel v Hart is another case of the same genre because there the patient said, “I do not want to end up with a throat like Neville Wran’s”.

MS McLURE:   That is right.

KIRBY J:   Whereas in this case there was no evidence of any kind of your clients showing special concern or anxiety?

MS McLURE:   There was no evidence of the patient showing any special concern or anxiety and the trial judge concluded, in effect, that there was no subjective materiality element.  She was qualified in the area.  She was cognisant of the general risks of surgery, cognisant, no doubt, of the things that can go wrong, which is probably more frightening than the things that can go wrong without negligence.  She was given all this information, had plenty of opportunity to raise any concerns that she had but none were raised.

KIRBY J:   When you say “given all this information”, she was given a pamphlet.

MS McLURE:   She was given a pamphlet.

KIRBY J:   It does not sound a very, shall we say, one on one communication.  The pamphlet should be to supplement.

MS McLURE:   Your Honour, that is, in fact, what happened and there was a consultation following the handing over of the pamphlet.  Now, the precise content of what happened at the consultation is not gone into in any great detail because you will see from the way the case was run that the focus on both sides was on temporomandibular joint disorder rather than other aspects associated with the risk of an osteotomy.

KIRBY J:   Well, your bottom line is if the only witness who gave evidence of knowing of this risk was a professor who had only known one case, where it was not shown to be known to others, where it was not known to your client, where it is not written up in the medical journals, where it is not discussed at dental conferences, then it is not in the realm of negligence.  Where we are looking at what is reasonable, it is not reasonable to expect that your client would know and warn a patient of something that he did not know and of which he was reasonably ignorant.

MS McLURE:   That is the thrust of our submissions and, indeed, it is supported, nor surprisingly, by Rogers v Whitaker where both judgments presume the need, of course, for the profession to know of the risk.  However you want to characterise it then, it is not material or whatever hole you put it into, at the end of the day if the profession does not know, if this appellant does not know and it is not generally known to the profession, then no duty can arise.

GLEESON CJ:   Well, presumably a duty to warn is, in its nature, a duty to warn of something that you know or ought to know.

MS McLURE:   Well, it must be because the whole rationale for the rule is the, if you like, inequality of information positions between a medical practitioner and the patient, so there has to be a transfer of information and it presupposes that the medical profession has the information to disclose.

GLEESON CJ:   So, argumentatively, the way it would run is that Mr Heenan says that your client should have warned about the risk of something, and I will leave to one side at the moment exactly what, and your client argumentatively says, “But I did not know about that risk”, and Mr Heenan says, argumentatively, “Well, you should have known about the risk”.

MS McLURE:   No.

GLEESON CJ:   Did any of the judges below find that your client should have known of the risk?

MS McLURE:   No, and the finding is to the contrary, but, your Honour, this is the difficulty.  It is necessary to keep clearly separate the risk of the respondent’s complications, which is the permanent injury, and the risk of temporomandibular joint problems developing, which is the way the Full Court discussed it.  Now, the evidence was clear that the appellant did not know, and the profession did not know generally, of the risk of the respondent’s complications, the permanent problem.

The evidence is clear that the profession, including the appellant, was aware in general terms of the possibility of temporomandibular joint disorder following an osteotomy, but with complications at a significantly lower or different kind.  That is where the confusion arises.  If one reads the ‑ ‑ ‑

KIRBY J:   I do not quite understand that.  Why would your client not have been under a duty to alert this patient to those risks generally known to the profession?

MS McLURE:   Well, your Honour, because it was not the case that was won by the respondent ‑ ‑ ‑

GLEESON CJ:   But they were not the risks that eventuated.  Am I right in thinking that the risk that eventuated was one of which your client was not aware?

MS McLURE:   Correct.

GLEESON CJ:   Does that not, at the risk of some oversimplification, indicate that the critical question then is whether your client should have been aware of it?

MS McLURE:   Yes.

KIRBY J:   I would still like to understand the difference – you finish answering the Chief Justice.

MS McLURE:   The trial judge’s finding was that the appellant was not and ought not to have been aware of the risk of the respondent’s complications.

KIRBY J:   Was it put to him?  It was never challenged when he said he was not aware?

MS McLURE:   No, but if I can, your Honour, and to explain it, the case then became one, not of the risk of the respondent’s complications, but something less:  the risk of temporomandibular joint problems developing.  Unless that distinction is understood, the error that the Full Court fell into remains a trap.

KIRBY J:   Well, I do not wonder that, as you say, they fell into the trap, because I do not understand the difference.  Why was it not the duty of your client to say, “Look, it is a very rare complication, but sometimes after this operation people get temporomandibular joint pain.  It is a small risk, but you ought to be aware of that.”?  Just explain to me, please, the trap, because it is a very subtle distinction.  I do not presently understand it.

MS McLURE:   In our submission, when one is looking at the duty to warn, the starting point must always be the respondent’s complications, what they actually suffered.  That has to be the starting point, because it affects, it affects the content of the duty to warn, it affects a whole variety of things.  Invariably, and certainly in cases before this Court, there has always been a correspondence between the identification of a relevant duty and the actual complication suffered, for obvious reasons.

Now, that is how this case was run.  That is how this case was pleaded.  Then the evidence emerged.  Professor Goss gave evidence that, in effect, it was not known, or generally known, to the profession that the respondent’s complications could occur.  So was there a duty of a lesser kind, but a duty to warn of complications that were less than what actually eventuated?

KIRBY J:   Why would there not be a duty to warn?  I mean, one does not get with a dental degree a crystal ball.  You do not know exactly what is going to happen, but surely the whole point of Rogers v Whitaker is to require a dentist or a doctor, faced with a patient, to alert them to things that they should take into account in deciding whether to go ahead with an intrusive procedure.

MS McLURE:   But, first of all, there has to be finding as to what it is that the appellant should warn of.  That is the difficulty because the nature of what we should warn of then affects the content of the warning and, of course, causation.  So temporomandibular joint disorders has a wide variety of symptoms, most of which are insignificant.  You can have a clicking in the joint, which does not affect function and it does not affect pain.  It can go up to transient pain.  Now, the trial judge did not find – because it was not pleaded – that we should have advised of the risk of temporomandibular joint disorders short of the respondent’s complications.

GLEESON CJ:   Presumably because that would not have been relevant to any issue in the case.

MS McLURE:   That is right.

McHUGH J:   But I think what concerns Justice Kirby is this point – and it may or may not be good in law – your client was in breach of his duty in not warning, or arguably was in breach of his duty in not warning, the patient of every aspect of the TMJ disorders.  As it turned out, only one or two aspects of those were relevant, the ones that caused the actual damage.  Why is not the correct way of looking at it, from a warning point of view, that your client should have warned of all the risks embraced under this concept of TMJ disorders and, if a combination of all of those incidences would have stopped the patient going on with the operation, your client is negligent and causally responsible, even though, as it turned out, there was only one aspect, and one that was not known to the profession generally?

Can I make it a little bit clearer?  Supposing she had not been warned about the dangers of anaesthetic?  That had nothing to do with it in the end, but she said, “If I had been told that there was a risk arising from the administration of anaesthetic, I would never have had an operation like this”.  Is that not a Chappel v Hart type situation?

MS McLURE:   It is a Chappel v Hart type situation and it is easy to answer, and Justice Gummow did in Chappel v Hart.  It might satisfy the “but for” test, but it does not have the relevant connection between the breach of the duty and the damage.  Of course, the first proposition your Honour put to me is slightly different and more difficult because it is in the same area, so it might not have the same causation consequences in the sense of, as a matter of policy, they are sufficiently connected to be able to, in fact, impose liability.

The question becomes one of materiality.  Because this is a concept that is generic, because the consequences are so broad from insignificant to not so significant but not anywhere near what actually happened, you have to then identify what you know, what the profession should know, to answer the question of objective materiality.  If one takes the view that really Rogers v Whitaker is nothing more than a requirement for a medical or dental practitioner to advise a patient of all of the risks, then I take the point.

GLEESON CJ:   I do not understand why you limit it to materiality.  Presumably, the duty to warn about TMJ problems can be no more than a duty to warn about such TMJ problems as you know or as you ought to know.

MS McLURE:   Yes.

GLEESON CJ:   You have no duty to warn about TMJ problems that you do not know about and that nobody can say you ought to know about.

MS McLURE:   No.  The difficulty, of course, in this case is that the appellant did know of a risk of TMJ problems of a lower order, and he gave that evidence.  I think that is the issue that is being pursued with me, as I understand it, in any event.

GLEESON CJ:   If you are setting about warning, why would you limit the warning to TMJ problems?

MS McLURE:   Well, of course, you would not.

GLEESON CJ:   You would have to warn about everything that you should have known about that might have been significant, according to Rogers v Whitaker.

MS McLURE:   Yes.

GLEESON CJ:   Let it be supposed, to take an example removed from the facts and opinion evidence in the present case, that a possible complication of this procedure is that you could become deaf.  Now, the plaintiff did not become deaf, but she might be able to say, “If anyone had told me that I might become deaf, I would not have had this operation”.  To which the response, I presume, is, “What follows from that?”.

MS McLURE:   Yes.

McHUGH J:   That is the issue, is it not?  Because the Full Court, it seems to me, have looked at it in globo, so to speak, and they said, “Well, she should have been warned of these TMJ disorders generally.  She was not.  That was negligent and, therefore, the trial judge was wrong”.  You say, “That is not the way you look at the case at all.  The warning must be much more specific because you have to look at what was done, or what occurred, and then determine whether or not there was a duty to warn against that”.

MS McLURE:   That is right.  That is what the trial judge did.  He looked at the evidence and said, “The appellant could not have warned because he did not know of the risk”.  He was not addressing ‑ ‑ ‑

McHUGH J:   But supposing in a perfect world, your client had said, “Well, now look, there was a problem of jaw pain, clicking or locking, as a result of this and the risk of that occurring is 15 per cent.  Then there is the problem” – well, let us assume he does not know about permanent disabling pain and so on, but supposing she had said, “Well, there is this 15 per cent risk of clicking or locking, I do not want to go on with this operation”.  Why is there not a causal connection between the damage she suffers and your client’s breach of duty?  Because there is a breach of duty; you have to concede that, I think, do you not?

MS McLURE:   In this case?

McHUGH J:   Yes.  Leaving aside the pleadings, there is a breach of duty in the fact that your client did not comprehensively warn about the TMJ disorders, if we can use that expression.

MS McLURE:   But, your Honour, that is to assume that Rogers v Whitaker says you have to warn of all risks, regardless of materiality.

McHUGH J:   Well, that seems to me one of the fundamental issues that this case poses.

MS McLURE:   Clearly, Justice Wallwork thought so and, no doubt, many people in the profession might be excused for thinking so, but our ‑ ‑ ‑

GLEESON CJ:   Was there any evidence as to what other sorts of problems you would have to warn about?  Why would you limit the warning to TMJ problems?

MS McLURE:   You do not, and the information sheet covers things such as nerve damage.

GLEESON CJ:   But did any of the expert witnesses in the present case attempt to explore the outer boundaries of risks associated with this procedure, other than the risks that ultimately came home to the patient?

MS McLURE:   Certainly the risk of nerve damage was explored, the possibility of temporary or permanent nerve damage in the evidence.

GLEESON CJ:   Well, I presume that it at least follows from that that if somebody had sat down to explain to the patient every risk involved in this procedure, the risks would have gone well beyond the risks of TMJ problems.

MS McLURE:   Correct.

GLEESON CJ:    But, as I understand your argument, the risks would not have included the risk that ultimately eventuated.

MS McLURE:   Yes, that is our argument.

GLEESON CJ:   Because there was no finding that that was a risk that should have been known to your client.

MS McLURE:   Yes.

KIRBY J:   Was the operation connected with the TMJ problem that ‑ ‑ ‑

MS McLURE:   No, not at all.  That is the issue.

KIRBY J:   So is that the trap – you see I am standing here on the brink of this trap and I do not want to fall in if it is a trap – that the Full Court fell in, that they took as relevant TMJ problems which were not causally related to the operative procedure that your client undertook?

MS McLURE:   No, I think it is fair to say that they did not fall into that trap.  The trial judge’s findings as to the pre-operative condition are that the respondent’s TMJs were normal.  There is a whole lot of evidence about what “normal” means, but leave that aside for one minute.  There was nothing about the TMJs in particular that affected whether or not the operation should proceed.  Now, that goes to negligence, but it also goes to the duty to warn because the expert evidence showed that, even with normal TMJs pre-operatively, TMJ problems generally can develop after the osteotomy.

KIRBY J:   Well, if they can develop after the osteotomy, why is it not the duty of a medical or dental practitioner to say there is this development that can occur?  As I understand the philosophy behind Rogers v Whitaker, it was to get away from this English notion that nanny knows best and to say medical and dental people have to tell their patient so that patients make the decision, not the specialists.

McHUGH J:   Before you answer Justice Kirby, can I just add this to it:  if your argument is right that it is a narrow warning, then Rogers v Whitaker is really about compensation.  If you take the wider view that you must fully warn, then Rogers v Whitaker is about patient autonomy.  In other words, if you give a full warning, it promotes the choices of the patient, whereas on your view, all you are concerned about is what actually happened and then ex post facto you say, “Well, should they have warned about that particular risk?  If yes, then the patient is compensated”.

MS McLURE:   Yes, your Honour.  We take the view that it is not strict liability, that the question of duty to warn and whether there is a breach has to be causally and qualitatively connected to what actually happened.  I think it is the point that your Honour Justice Gummow made in Chappel v Hart.  If you take the instance of, “You did not warn about the risk of the anaesthetic but you had TMJ problems, but you still would not have had the operation because you are frightened of anaesthetic”, then you have the “but for” causal connection but you do not have the necessary qualitative connector.

Now, I am just assuming that is accepted, but if that is not accepted, we say it ought not to be accepted for the following reason.  Rogers v Whitaker is not about patient autonomy or fully informed consent, save to the extent that it involved the departure from the Bolam principle.  Instead of using the medical profession as to the standard of what should be advised or disclosed, that has been discarded, and I do not think anybody now says we should go back to using what the medical profession thinks has been the yardstick.  The test is now an objective one and it is what the patient, a reasonable patient, would want to hear.

GLEESON CJ:   But it is related to causation, is it not?  To take something away from the present field of discussion and related to an article in the paper today or yesterday, most airlines, as I understand it, do not warn you that you might get a blood clot in the leg if you fly for more than four hours.  Does it follow from that that if an aeroplane crashes without anybody’s fault in terms of the management of the aircraft, you can sue, or the relatives of a passenger can sue, by saying if that passenger had been told that he might get a blood clot in his leg from flying, he would never have flown on that aeroplane?

MS McLURE:   We say obviously not, for the causation reasons.

KIRBY J:   But that is a long way away from the fact that temporomandibular pain can occur as a complication of osteotomy.

MS McLURE:   Your Honour, we accept that where the risk is obviously different and the area of breach is obviously different, it is easy to answer the question.  I accept that.  As you get closer to the event that actually occurred, whether by way of general category or specificity, then it becomes a more difficult policy argument from a causation perspective.  I accept that.  But it remains the case that – if I can go back one step.  It is not the case that all risks are material.  It is not the case that patient autonomy requires a doctor or a dentist to disclose all risks.  Indeed, that is what Rogers v Whitaker says, because if it were otherwise, you would not need the subjective limb.

So this objective materiality places a restriction on what a doctor or a dentist has to advise.  To use the example given by the Chief Justice, if there was an irreducible risk of having a deep venous thrombosis from flying for four hours, and there was a further even smaller risk of that causing a pulmonary embolism and death, would your Honours be on the Indian Pacific?  No.  That is what we say about objective materiality and the extent of the risk.  This is the real world.  This is a world in which we all perform and act having regard to the existence of risks.  They are there in the background but they do not factor in our decision making.

McHUGH J:   But that means, does it not, that all this talk about patient autonomy is really window dressing, that Rogers v Whitaker is really concerned with whether or not a doctor should compensate in particular circumstances?  If the doctor is not to make full disclosure of all relevant risks, whether they eventuate or not, then it does not promote patient autonomy.

MS McLURE:   But your Honour is to misstate Rogers v Whitaker and, indeed, your Honour is to probably state the effect of Rogers v Whitaker that the medical profession understands, but it is erroneous.  Leaving aside subjective materiality, having heard Mrs Whitaker on the Law Report, one can understand why the law went as it did in Rogers v Whitaker, but the Court said that there must be objective materiality.

McHUGH J:   Yes.  What one has to take into account is both the degree of risk and the gravity of the consequences.  In Mrs Whitaker’s case, the consequences were total blindness.

MS McLURE:   But, your Honour, if you approach it from that way, we say you get the wrong result again.  Rogers v Whitaker has to be firmly borne in mind that the result was dictated by her very clearly articulated concern about the risks to her other eye.  We do not have that.  If one takes the view that the statistical risk is relevant but has to be balanced with the severity of the harm, you will invariably get the statement of principle that Justice Wallwork uttered, namely, that there is a duty to disclose of risks generally known to the profession, serious risks.

We say that is not the appropriate way to examine objective materiality, because on the example that I put previously concerning the aircraft, the consequence is death, the most significant consequence.  But does that factor into the decision making of everyday life where the risk is insignificant?  The answer is no.  You drive your car, you go to Northbridge, you do the things that you know, as everything you do, involves an element of risk.  This is what Professor Goss was complaining about in this case.

KIRBY J:   What is the risk of going to Northbridge?

CALLINAN J:   Could I just ask you about Professor Goss’ evidence.  The evidence that he gave, which is quoted at page 1089, was that given without objection?  It seems to me to be extraordinary evidence to be allowed in.  He said that it was “a surprising omission” that Dr Percival did not ask certain questions.  He said she was “intelligent, articulate”.  It sounds like a judgment.  I cannot understand how an expert can be allowed to give evidence of that kind.

MS McLURE:   Your Honour, it was expert evidence tendered on behalf of the respondent.

CALLINAN J:   Yes, I know.

MS McLURE:   It was in the context of that area of evidence that, as I understand it, remains permissible, namely, whether or not there is a duty to warn ‑ ‑ ‑

CALLINAN J:   Well, that might be so, but how can he discuss whether what she did was surprising or not?  How can he make an assessment of her intelligence and her articulateness?  He is really giving all sorts of evidence about the issues.

MS McLURE:   He is.

CALLINAN J:   I do not understand that.

MS McLURE:   He is being asked the question of whether there is a duty to warn and he ‑ ‑ ‑

CALLINAN J:   If that is the sort of evidence that is now going to be allowed in following Rogers v Whitaker and Chappel v Hart, it may say something about those cases.

GLEESON CJ:   Ms McLure, which is the passage in the reasons for judgment of Justice Wallwork that you say indicates the error into which he fell?

MS McLURE:   If I can work backwards, at page 1215, at paragraph 97.

CALLINAN J:   Sorry, one one?

MS McLURE:   Page 1215.

CALLINAN J:   Thank you.

MS McLURE:   At paragraph 97:

The question of the risk in this case was not dependent on it being known to the operating surgeon or the other experts concerned that there were pre-operative signs of a TMD disorder.  On the overwhelming evidence it was a risk which existed because of the likelihood of some patients having complications after the operative procedure.

GLEESON CJ:   You mean the error lies in generalising by using the expression “a TMD disorder”?

MS McLURE:   Yes, because the judge, if you look at the evidence, focused solely on the question of, “Did the appellant have to warn of TMJ disorders?”  That is it.  That was the very broad question that his Honour asked himself, and because he asked himself that question – indeed, that was the question that was posited to him by the respondent – he relied on evidence that was totally unrelated to the risk of the respondent’s complications.

So the trial judge has found that the appellant did not advise because he could not have known of the respondent’s complications.  Justice Wallwork is considering the risk solely by reference to this very broad statement of the problem, TMD disorders, can therefore look at evidence that goes to matters beyond the respondent’s complications, which is what happened.  So he overturned the trial judge’s finding on an erroneous approach to the identification of the risk.  They were talking about different things.  Then Justice Wallwork gets to the statement:

Once there is a risk which is generally known to the profession, there is a duty to warn.

Now, we say ‑ ‑ ‑

KIRBY J:   My difficulty with this theory, though, is that it requires a sort of ex post facto wisdom.  You have to know ex post what is going to happen to this patient.  If you had known that, you would certainly have advised them.

All that Rogers v Whitaker, or any other such principle can promote in the actual real world of a dental surgery or a doctor’s surgery, is that you tell the patient of the risks that are real and relevant to this procedure.  So your theory requires you to know in advance the particular risk and then to have warned them of that risk, whereas it is not until things unfold and then you ask, “Well, as they unfolded, did the practitioner give a warning of a relevant kind that allowed the patient the chance to say, ‘Yes, I will go on with this or I will not go on with it.’?”  Your theory requires a great deal of a priori wisdom before the event of what was going to happen after the event.

MS McLURE:   But it is essential in a “duty to warn” case to identify the actual complications and whether you should have warned of those, because that affects a number of things.  It affects the content of the warning.  If I had said to Mrs Percival, “There is a very small risk of transient harm”, I am going to be tested against the materiality criterion.

Do I need to warn of a very small risk of transient harm?  We have to test that.  Then we have to test the content of my warning.  If I knew, for example, of the serious consequences, and I did not advert to them, I would be in breach again.  Then I have to look at it from the causal perspective.  If I, indeed, have a duty to advise of a significantly lesser risk, the question of causation has to be tested by reference to that lower risk, not what she actually suffered.  You cannot do what has happened in this case.

GLEESON CJ:   But is that not what the Full Court tried to achieve by sending the matter back for a new trial on the issue of causation?  Did they not reason in this way?  I realise you criticise it, but is this not a fair summary of what they said:  “We don’t dispute that the practitioner was not in a position where he should have known of the risk that actually eventuated but there were risks of which he did know and of which he failed to warn.  Therefore, there was a breach of a duty of care but there is a large question as to whether that breach of his duty of care was causally related to the harm that was suffered by the plaintiff.  The trial judge did not approach that question on the right assumptions, so we’ll send the matter back for a trial, focusing on the real issue that has now emerged.  That is to say, whether there is a causal connection between the breach of duty and the harm.”?

MS McLURE:   The answer is no, your Honour.

GLEESON CJ:   That is not the way they reasoned?

MS McLURE:   That is not the way they reasoned.

KIRBY J:   Would there have been anything wrong with reasoning that way?  It sounds pretty good to me.

MS McLURE:   With the significant proviso that you cannot look at it in a vacuum.

McHUGH J:   Would you not say in those circumstances it is really just a question of “but for” causation in that situation?

KIRBY J:   But that will be thrashed out in the causation retrial.

MS McLURE:   No.  Everyone just assumes that for some reason it is material.  In our submission, that is the first error, leaving aside the causation.  Clearly it has causation ramifications, but there has to be a reasoned analysis of why something less than the respondent’s complications – what are they and are they material?  This matter has to go back to a trial judge.  There is no reasoned consideration anywhere by any member of the Full Court as to why this is material.

KIRBY J:   It is in the same area of the body; it is in the jaw; it is a complication; it causes pain.  Human beings do not like pain.  They like to know of that possibility.

MS McLURE:   But that is not the end of it.  The pain is transient.  What is the degree of the pain?  What are the alternatives?  The alternative here is if you go to the dentist, you have the same risk of causing TMJ problems.  You have a crown, you have a filling.  So you do not just look at the question of degree of risk or the consequence in a vacuum.  It is to misunderstand, we say, the process that must be undergone in determining materiality.  It is the Wyong foreseeability breach of care sort of analysis, as I apprehend it.  It is the likelihood of the harm taken into account with all the other relevant circumstances.  What are the other relevant circumstances?  Is there any other means of securing the result that she wants?

The trial judge said this is the only effective means.  What is the risk of it happening in any event?  There is a high risk of it in the community in any event.  The expert evidence is unanimous that it can happen in the course of a long dental appointment or having a crown.  So we come back to the same sort of issues addressed earlier.  You cannot look at materiality in a vacuum.  You cannot say there is a risk of temporomandibular joint disorders, full stop, and then conclude that that is material.  How is the trial judge to know, how is anyone to know, why is this material?

McHUGH J:   But, as I put to you earlier, it seems to me it depends upon what is the nature of the warning which the law requires.  Must it be a concrete warning tailored to the actual disability that the plaintiff now suffers from?

KIRBY J:   Which it cannot be because you cannot foresee that.

McHUGH J:   Or must it be a question of whether the plaintiff should have been warned of every material risk that is involved in the procedure, whether they eventuate or not?

KIRBY J:   Which it should be because that is protective of the integrity, dignity and right to choose of the patient.

MS McLURE:   The question of whether there is a breach of the duty cannot dictate, we say, invariably whether the person is compensated.  You cannot say there is an obligation to warn of all material risks of whatever nature or foreseeable risks - a hugely onerous task - then, because there is a breach of any part of that duty, that the medical practitioner should be held liable for the harm.  We say there has to be a close connection between the risk that eventuated in the harm in order for the policy factors that apply in the causation test to justify compensating the patient.

McHUGH J:   You say that, but the question is:  why?  Test it this way.  Your client’s failure to warn the plaintiff of all risks involved under the rubric TMJ disorders was a breach of contract which would sound in nominal damages if your client had been sued even if the patient had suffered no damage whatever.  If that is so, if you are in breach of your duty, why is not then the only question one of causation?  The breach of duty arises because you did not give a full warning.  Then the question is:  did the failure to give that full warning bring about the damage which has been suffered?  You might say that is “but for” causation.

MS McLURE:   It is “but for” causation, and of course that is not the end of the matter and you would need to look at the closeness of the quality of the connection.  But I would go back one step further.  Everyone just seems to assume that there is an obligation to advise of TMJ disorders without testing that against materiality.  We contest the actual complications.

GLEESON CJ:   Perhaps it might be useful if you said exactly what you mean by the term “materiality”.

MS McLURE:   Right.  By the term “materiality” I am focusing in this case solely on the first limb of the test.  I am not addressing questions coming from the patient.  Whether or not it is material has to satisfy a number of requirements:  likely, probable, that a patient will attach significance to it.  What is the significance?  The significance is the significance in the decision‑making process:  will I go ahead with the procedure?  So the question must be a person in the plaintiff’s position, having regard to the extent of the risk, the likelihood of the consequences of the risk occurring, ie, the actual complications that are known, the alternatives that are available and, leaving aside essential and whatnot, whether there is a therapeutic reason for it.  I mean, people go to the dentist, not that they like it.  So that is how you determine materiality.  Of course, the Full Court just simply did not do it.

KIRBY J:   I go back to the Chief Justice’s earlier question.  You are trying to load up a lot of causation questions into the materiality.  They left the question of causation still open for trial and, frankly, it seems to me at the moment, subject to Mr Heenan’s argument, that is the strength of your case, that even if she had been given this warning, she would still have gone ahead with that operation, but we have not come to that yet.  You are trying to get a double‑barrelled shotgun at patients in Australia.  You are saying, “We’ll shoot you down on materiality and then, if you get up on that and stagger along, we’ll shoot you down on causation”.  It seems to me the policy of the law and the policy of Rogers v Whitaker is right:  to enhance the obligation of informing.  Then many patients, even informed, will still go ahead because they do not really have much alternative.

MS McLURE:   As the House of Lords said in Sidaway, the Rogers v Whitaker doctrine is not concerned with informed consent, otherwise you would have to advise all the risks, and that is not what our law says.

McHUGH J:   I am not sure about that.  Look at Rogers v Whitaker and what we said at page 489 at point 6 on the page after footnote 44:

But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.  Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.

So what we are saying is that it is a question of choice, that:

the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended.  But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.

Over on 490, you should disclose the information “including the risks attending the proposed treatment”.  So Rogers v Whitaker requires the doctor, in effect, to inform the patient of all the risks, otherwise the patient cannot make a valid choice.

MS McLURE:   Your Honour, that cannot be right on the basis of Rogers v Whitaker for this reason:  why would you have a need to have an objective limb and a subjective limb?

GUMMOW J:   Where do we see those formulated?  I know this has become part of the argot but where is it expressed that way?

MS McLURE:   Page 490 at about point 2:

In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as “the patient’s right of self‑determination”…..

We agree that the factors referred to in F v R by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure.  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 –

that is the….objective, your Honour –

or if the medical practitioner is or should reasonable be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

Rogers v Whitaker was the subjective limb.  The trial judge in that case had not said that the risk was objectively material.  What made it material in this case was her incessant questioning about the effect on her eye.

GLEESON CJ:   So you say the actual decision in Rogers v Whitaker turned on the second limb of that proposition?

MS McLURE:   Rogers v Whitaker and Chappel v Hart.

GLEESON CJ:   May I ask you this:  has anyone ever considered the application of this principle not to surgical intervention but to prescription of medication?

MS McLURE:   Not in this jurisdiction that I am aware of.

GLEESON CJ:   Let it be assumed that the same test would apply to prescribing medication and let me ask you this:  suppose a number of years ago – and I cannot tell you the exact number now – a pregnant woman was prescribed thalidomide at a time when its consequences in causing deformity of children were not known and when you would not have expected reasonably a medical practitioner to know, so there was no warning about that consequence of thalidomide.  But suppose there was another side effect of thalidomide of which the medical practitioner failed to warn the patient.  How would you go about determining a claim for compensation or common law damages against the medical practitioner in those circumstances?  What is the test that you would apply, or would it all come down to a question of causation?

MS McLURE:   That would come down to a question of causation because you would look at the risk that is known about, you would make a judgment as to its materiality, you take into account the alternative, all of the relevant information, not decide it in a vacuum, not decide it by reference to notions solely of patient autonomy ‑ ‑ ‑

GLEESON CJ:   So you would say the doctor should have warned the patient about that side effect even though it had nothing to do with deformity?

MS McLURE:   Even though it has nothing to do with that case, you would not compensate.  You would say there is no causation between the breach of duty and the risk that eventuated, so you would not be compensated.

McHUGH J:   But the Distaval tablets were the tablets concerned in the thalidomide case.  Supposing the doctor had failed to warn that there was a risk of nausea associated with taking those tablets but was unaware of the consequences to the foetus.  Supposing a plaintiff said, “If I’d been told that there was a risk of nausea I would never have taken those tablets, but I took them and now I’ve got this deformed child”.  In those circumstances, is there a breach of duty and is there a claim in negligence?

MS McLURE:   Your Honour, the difficulty that I put to you is that you give me incomplete facts to make a judgment on materiality.  You cannot assume because there is an omission to advise of a risk in the absence of subjective materiality that the risk is material.

GLEESON CJ:   What more would you like to know?

MS McLURE:   If it is in relation to a person who is currently pregnant and is suffering nausea as the natural symptoms and that the nausea occasioned by the medication is not of significance in the context it does not add much and it is necessary, or seen to be necessary, therapeutically necessary, for the woman to be protected from some particular disease – overwhelmingly not material.

KIRBY J:   The test is there stated in Rogers v Whitaker.  It is whether a reasonable patient would find it relevant to know this consideration.  If you have a reasonable patient who says and is convincing to the tribunal of fact, “I wouldn’t have had it if I had been informed”, then that is just a factual determination.

MS McLURE:   But, your Honour, in our submission, the question of materiality quite clearly overlaps the factual investigation on causation.

McHUGH J:   Yes, but this problem arises in respect of the whole area of warnings.  I have been thinking about it for years and I do not know what the answer is.  Must the warning be concrete or must it be a more general warning about all the risk?  If a landlord has a duty to warn and a tenant falls down a hole in the premises, do you concentrate on the duty to warn just in respect of that particular defect in the premises or can you say the landlord should have warned that there were dangers from electricity, there were dangers from this, there were dangers from that?  Then the tenant can say, “If I’d known of those dangers, I would never have taken these premises and therefore I would never have fallen down the hole”.  You would say it is a more concrete warning, as I would understand it.

MS McLURE:   Both on materiality and causation because, if you look at Chappel v Hart and Rogers v Whitaker, the Court required the warning to be specific.  Why was that?  Because anything other than a specific warning you will find in other cases is that it does not go far enough.  The professions are caught in a very, very difficult position.

GLEESON CJ:   It might also be very difficult to test causation against a non‑specific warning.  That was the reason for my very first question.  Once you assume that the doctor is supposed, as it were, to give the patient a mini lecture exploring the outer boundaries of all the possible complications of procedure, the less likely that is to be to deter the patient.  Perhaps it is a matter of personality, but I should have thought most patients, confronted with an exegesis of that kind, would simply say, “Well, it’s a matter for your professional judgment”.

MS McLURE:   Yes.

KIRBY J:   Lawyers have clients saying that to them all the time and lawyers tell them every time, “No, it’s not.  You have to make the decision”.  “Should I settle this, sir?”  “No, it’s up to you.  I tell you the risks, I tell you the chances and you have to make the decision”.  That is human autonomy, it is human dignity.

MS McLURE:   In many cases it is seen as passing the buck by the legal profession.

KIRBY J:   No, it is not.  It is putting the buck where it belongs.

MS McLURE:   I am sorry, I qualify it:  by the legal profession.  People insist that you do not these days give on the one hand and on the other hand and at the end you do not really know.

GLEESON CJ:   Exactly.  They say, “We’re paying you for your opinion, not for your doubts”.

MS McLURE:   Exactly.

CALLINAN J:   And for your judgment.  “Would you have it or would you do it?  What would you do?”

MS McLURE:   That is right.  But that is the problem with this area of the law.  You have a relationship where there is trust and confidence.  Of necessity they have to, even those who are very well equipped to make an assessment, rely upon the judgment of the medical practitioner.  You get into areas of risk that really are not a question of medical judgment.  They are so remote that at the end of the day the medical practitioner says to you, “There’s a one in 14,000 chance of you suffering temporomandibular joint disorder of a serious nature”.  “Why are you telling me that?  Is that significant?”  “No, but I have tell you”.  At the end of the day that is the problem because you get to such remote risks that do not involve a medical judgment but come down to ‑ ‑ ‑

GLEESON CJ:   The problem is even more complicated, if I may say so, because all this is in the context where the practitioner, by hypothesis, has formed a judgment that it is in the interests of the patient to have the procedure.

MS McLURE:   That is right.

KIRBY J:   And that is why the law imposes this duty, because that judgment has an economic advantage to the practitioner behind it and the law says, “Wait a moment, it is not your decision”.  We have gone past tapping the – and “There, there, dearie, it’s all right.  You leave it to me”.  We have gone beyond that.  Rogers v Whitaker took us beyond that.

MS McLURE:   And rightly so, and Rogers v Whitaker says, “You share with me so that I understand the relevant risks in making an assessment of whether I proceed”.  There are a whole variety of relevant risks and outcomes and alternatives that I need to know, but do I at the end of the day need to know something that is way out of left field that has no medical significance and which the medical practitioner would justifiably say any reasonable person would ignore it?  We say that is the outer ‑ ‑ ‑

McHUGH J:   Yes, but you are looking at it from a compensation point of view, dealing with it ex post facto, but look at it from the patient’s point of view.  If she is told all the risks, even though she should not have been told this particular risk that has occurred, she may have said, “I don’t want to go on with this operation.  There are too many risks involved”.  None of them may eventuate but another risk does eventuate, that it was beyond the reasonable knowledge of the profession.  Why is she not entitled to recover in those circumstances?  Because she would not have had the operation in the first place.

MS McLURE:   Because, as Justice Hayne says in Chappel v Hart, there has to be a qualitative connection between the breach of the duty and the harm that is suffered.  It is not sufficient to satisfy the “but for” test and you should not use the law of negligence to effect a policy change of strict liability for failure of your duty to warn.

KIRBY J:   First you want to undo Rogers v Whitaker and then you refer to dissenting opinions in Chappel v Hart.

MS McLURE:   Your Honour, I do not want to undo Rogers v Whitaker.

KIRBY J:   You accept Rogers v Whitaker for what it stands for?

MS McLURE:   Yes, but my understanding of Rogers v Whitaker and what it requires is different from the way your Honour puts it to me.

KIRBY J:   You laid great emphasis.  You say everybody has misread it.  Nobody has read that word “material” in.  That word “material” is a very significant requirement of relevance to the particular damage that occurred.  In the word “material” which appears in the passage that Justice McHugh read, you have to have ex post wisdom and you then have to say, “What occurred and was it material that the patient be informed of exactly that, even though at the time neither patient nor practitioner knew that that was going to eventuate”.  That just seems to be the fallacy in your argument of cutting away – your big strength in this case is on causation.  Anyway, I will not say any more about it.

MS McLURE:   Your Honour, perhaps I should just go to that.  I do not seek to put the proposition as your Honour stated it to me.  The reason that there has to be a nexus between the breach of the duty and the harm goes to issues of causation.  We would say the law draws the line where there is no relative connection between the breach of the duty, ie, what eventuated, and where the breach of the duty was - anaesthesia versus TMJ.  We say that that breaks down at the causation level.  My submissions on materiality overlap with causation, as indeed I think they are intended to ‑ ‑ ‑

GUMMOW J:   I will just tell you what my problem is.  I think this word “material” is really used at the bottom of page 490 to describe two concepts, is it not?

MS McLURE:   Yes.

GUMMOW J:   You seem to be giving it some other work to do according to its ordinary meaning.  It is given a special meaning at the bottom of the page.

MS McLURE:   I do not seek to give it a special meaning.  I seek to separate the two limbs and I seek to make submissions ‑ ‑ ‑

GUMMOW J:   How do you work the facts of this case into those two limbs then?

MS McLURE:   The facts of Rogers v Whitaker?

GUMMOW J:   No, the instant appeal.

MS McLURE:   The second limb does not apply.  There is no question of subjective materiality.  There was no questioning.  If there is questioning, it is really easy to make the decision on materiality and causation – witness Rogers v Whitaker and Chappel v Hart.  We now deal for the first time, at least as far as I am aware, in this Court with the first limb.  So what does the first limb mean?  It means that not all risks have to be advised of, otherwise you would not need the subjective limb.

GUMMOW J:   You are construing the words ‑ ‑ ‑

MS McLURE:   Yes:

a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it –

If I can stop there, “likely” means probable - forget about more probable than not, but at least probable and not a possibility – “a reasonable person in the patient’s position, if warned of the risk”, “attach significance to it”.  Significance in what context?

GUMMOW J:   What does “patient’s position” mean?  It is this particular patient, is it not?

MS McLURE:   It is this particular patient.  It is in fact ‑ ‑ ‑

GUMMOW J:   But what does “position” mean – attitude of mind, economic circumstances?

MS McLURE:   It has not been determined.  The Canadians, when they have looked at it in this area in the most recent case of Smith v Arndt, say age, sex and marital status, a person’s position.  I cannot see why you would confine it to that.  I cannot see why you would not look at the general ‑ ‑ ‑

GUMMOW J:   I need help.  What other matters would you factor in?

MS McLURE:   Let us put it in this case:  in this case, that there was no effective alternative to the patient’s problem with her teeth being remedied.  The problems with her teeth resulted in a 50 per cent risk of TMJ problems if they were not effectively remedied or if nothing was done.  The risk of what occurred was a risk that can occur with dental treatment of any nature:  crown, filling.  We are now talking about should there have been a warning, we say, of a risk, a very small risk, of serious harm – very small in the sense of remote.  In that overall context we say that that is not objectively material, having regard to the plaintiff’s position and significance, not objectively material ‑ ‑ ‑

GUMMOW J:   You are moving now to the notion of “would be likely to attach significance”, are you not?

MS McLURE:   Yes.

GLEESON CJ:   But the key to this aspect of your argument is identifying the risk.

MS McLURE:   Yes.

GLEESON CJ:   If you identify the risk as the risk that eventuated, it is hard to see why you even get to this point at all because, by hypothesis, no one reasonably expected your client to know of the risk.

MS McLURE:   That is why I started out with a risk and tried to identify it in terms as we do, the respondent’s complications.  Our first submission is that we do not get to materiality because we did not know.

GLEESON CJ:   What the Full Court did was to identify the risk as they did on line 3 of page 1215, “a TMD disorder”.  Having identified the risk as, if you like, any kind of TMD disorder, they then said it satisfies the first limb of Rogers v Whitaker.  The question is one of causation.

MS McLURE:   I do not think they did that because, if you read on, they relied on Justice Kirby’s comments in Chappel v Hart and failed to distinguish at all between subject of materiality and objective materiality.  There was just no discussion of it.  But what is the greater defect is that no discussion of materiality at all, just a view, and perhaps one that is intended to be, but certainly we say does not arise in the current authorities, that you must advise of all risks.  For the medical profession there is some certainty about it, or dental profession, but we say that is not what Rogers v Whitaker has ever been about.

GUMMOW J:   Well, are you saying that they are to be taken in the Full Court as having said, “A reasonable person in this patient’s position would be likely to attach significance to any of these disparate, far‑ranging risks”, and that therefore the first limb is made out?  Is that what they were doing, sub silentio?

MS McLURE:   No, I think they just ‑ ‑ ‑

GUMMOW J:   Or, to put it another way, in order to support what they did, does not Mr Heenan have to come to that application of the first limb?

MS McLURE:   I think that is right but then we say that is entirely speculative because one would expect to find a reason to ‑ ‑ ‑

GUMMOW J:   These words “reasonable person in the patient’s position”, they are leeways of judicial choice if ever I saw them.

GLEESON CJ:   You cannot say, “Here’s a risk that you knew of and that you didn’t warn about.  Gotcha.”

MS McLURE:   I am sorry, your Honour, perhaps I have missed that.

GLEESON CJ:   That leaves only a question of causation once you reach that point.  You want to attach to Rogers v Whitaker a more detailed analysis than that.  You say the medical professional is not exposed to liability simply by demonstrating that some risk of which he knew was not the subject of a warning.

MS McLURE:   Absolutely, and that is the trap into which Wallwork J has fallen and at paragraph 97:

Once there is a risk which is generally known to the profession,  there is a duty to warn.

Now, that might be a statement ‑ ‑ ‑

McHUGH J:   Well, that is the question.  What did his Honour mean by “a duty to warn”?  Duty to warn of what?

MS McLURE:   We do not know.  That is the problem we see.

McHUGH J:   Yes.

MS McLURE:   There is nothing to guide us as to why it is material so we can get a lever on what the content of the warning should be so that the trial judge back in the District Court can make an assessment of why.  Why do we have to give a duty, of what, and how is the content of the warning going to be?

GLEESON CJ:   Have we fully explored that aspect of your argument?

MS McLURE:   I do not think I can ‑ ‑ ‑

GLEESON CJ:   Well, you have a causation issue that you want to address, do you not?

MS McLURE:   I do, if I can come to that now.  I want to start, if I may, with the trial judge’s findings and the evidence in relation to that.  At 1175 of volume 6 the trial judge dealt with the causation issue.  It starts at paragraph 24 and he dealt with it on the basis of the respondent’s complications as they developed and going to page 1176:

It is patently obvious on the evidence that she made these enquiries, understood the options that were available to her and elected to have the surgery because on all the evidence of the other specialists and including that of the defendant it was the only way the problems, and she certainly had problems with her mouth and her teeth, could be corrected effectively.

KIRBY J:   That is the judge’s conclusion.

MS McLURE:   Yes.

KIRBY J:   What were his reasons for that?

MS McLURE:   His reasons are ‑ ‑ ‑

KIRBY J:   I suppose you start by saying that he had the conventional advantages, not just of credibility but of being the trial judge and reflecting upon this issue which was debated and fought out and he came to that conclusion, so it has to be shown that that is an erroneous conclusion before an appellate court can disturb it.

MS McLURE:   Yes, on the Devries and Abalos test.

KIRBY J:   Well, read with SRA.

MS McLURE:   Read with SRA, which I am aware of.  Thank you, yes.

McHUGH J:   It just applied it.

MS McLURE:   So if I can come to the facts on which the trial judge relied, the first ground on which the trial judge decided causation was set out at 1176 lines 9 to 12.  If she had been advised of the risk - there was some very small risk of any adverse outcome of the osteotomy – she would not have had the surgery, was “unbelievable and of no assistance in the circumstances”.  So that is the credibility finding.

KIRBY J:   Where is that, I am sorry?

MS McLURE:   At 1176 lines 9 to 12 and if I can take the Court back to page 1084, your Honours will see how the evidence of causation developed and if I can in passing observe that the way the questions were framed became dictated, I suppose, by the way the evidence had developed.  It moves away from the respondent’s complications.  So the plaintiff was recalled at the end of the defendant’s case and the trial judge said that the value of her evidence:

would have to be judged accordingly, a proposition which counsel for the plaintiff readily acknowledged.

GUMMOW J:   Was it put to her, for example, that she had been coached?

MS McLURE:   No.

GUMMOW J:   Was she cross‑examined about this?

MS McLURE:   She was.

KIRBY J:   This is in the case in reply.  Do you have a case in reply in Western Australia?  That is not at all uncommon in civil trials.  You have the plaintiff’s case, you have the defendant’s case and then there is a case in reply.

MS McLURE:   No.  The evidence ought to have been led during the plaintiff’s case.  It was an omission, an oversight.  Leave was sought and obtained for the plaintiff to be recalled, for the causation evidence to be given.  That was given after all their ‑ ‑ ‑

GLEESON CJ:   Presumably leave was needed because she was splitting her case.

MS McLURE:   Yes.

McHUGH J:   This was not a matter for reply.

MS McLURE:   No.

KIRBY J:   This is important to her cause of action.

MS McLURE:   We would say essential.  It goes to the question of whether there is an evidentiary onus, but perhaps if I just leave that for the moment:

As it so happened the two questions asked by the plaintiff’s counsel reflected the evidence of the experts given throughout the trial and the first question…..

Dr Percival, before you had your osteotomy in late 1993, 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?

So any risk, however small of any adverse outcome, no restriction to TMJ, just broad –

If there had been any risk I would not have had the surgery.”

It can be seen there that counsel has emphasised, when he uses the words in the question “Perhaps very small”, and of course the plaintiff’s answer, as one would expect given that stage of the proceedings having heard such evidence, and it is to be noted that she used the words “any risk”, as anybody knows, and particularly a person with the plaintiff’s qualifications, that answer in effect rules out surgery at any time.  The next question…..

“I gather that you were anxious to obtain a satisfactory result for your dental problems.  What would you have done if faced with advice that there was some small irreducible risk of adverse complications or a bad outcome?---I would have the orthodontic treatment to get the best I could out of the situation and have some prosthodontic treatment and been very happy with the result…..

This question is again couched in exactly ‑ ‑ ‑

GUMMOW J:   What page are we on?

MS McLURE:   Page 1085:

This question is again couched in exactly the same language, “Some small irreducible risk of adverse complications or a bad outcome”.  And again the answer is one that would be expected in the circumstances and of course, again in the circumstances, of no evidentiary value whatsoever.

GLEESON CJ:   If you just look at the language in which the answer was given between lines 20 and 25, you can understand what the trial judge had in mind when he was talking about the qualifications and background of the plaintiff.

MS McLURE:   Yes.  The qualifications and background of the plaintiff and the knowledge of the risks of general surgery and the failure to activate the subject of materiality limb of Rogers v Whitaker is, we say, overwhelming evidence on causation.

KIRBY J:   That is one way to look at it.  Another way to look at it is:  “Here is a person who is a colleague in the health‑care profession.  I don’t have to tell rudiments but I can speak to this person without the inhibitions or problems that sometimes arise in dealing with a lay person.  I can speak to this person, in effect, as a type of colleague, a nursing specialist, not just flick a piece of paper to her”.  I put that provocatively.

MS McLURE:   He did not just flick a piece of paper to her, your Honour, and the point is she says “any risk of any adverse outcome”.  That is incredible in the true sense of the word.  I mean, she had her wisdom teeth done under general anaesthetic by the appellant as part of this treatment.  There are risks of general anaesthetic.  We all know them.  Her evidence is clearly contraindicated by everything she had done.

CALLINAN J:   Can I just ask you this?  This head of the claim was specifically pleaded in paragraph 24 of the statement of claim which appears at page 1035.  Now, is it correct that the plaintiff offered no evidence at all with respect to the matters in paragraph 24 until she was recalled?

MS McLURE:   Yes, that is correct.

GLEESON CJ:   On page 1085 at line 7 Mr Heenan refers to his client as “Dr Percival”.

MS McLURE:   Yes.  She has a Ph D in nursing.

GLEESON CJ:   Thank you.

GUMMOW J:   1992.

MS McLURE:   Yes.

CALLINAN J:   She was a very experienced nurse.  She had worked in a meatworks and she had worked in the Channel Islands and various other places.

MS McLURE:   That was what the trial judge found, significant experience in nursing as well as the academic qualification.

CALLINAN J:   She was 43 at the time of these procedures, I think.  Is that right?

MS McLURE:   That is right.

KIRBY J:   If you can give me at some stage where the judge found that about her experience and its relevance in his mind.

MS McLURE:   Perhaps if I can do that now, your Honour.  It is referred to at 1174.  Is your Honour referring to the respondent’s experience? 

KIRBY J:   No, the judge’s finding that that was relevant.

MS McLURE:   It is 1174 lines 3 to 7:

In this case, the plaintiff is a PhD in nursing.  She has had practical nursing experience for a long time and there could be nothing much more practical than being nurse on the floor at the meat works at Wyndham during the season from time to time, as indeed she was, and she knew more than any lay person about the general dangers of surgery.

So it was in the context of her background and experience that one looks at the subjective evidence or the direct evidence of any risk of any complication in surgery.

KIRBY J:   Because she is not complaining about a want of instruction of any risk of surgery or of anaesthesia or anything of that kind.  You have to read her answer in the context of what she is complaining of, which was of a material risk relevant to her case and, by inference, of the failure to warn that she was going to have the kind of pain that permanently later afflicted her.

GLEESON CJ:   I think the specific answer to Justice Kirby’s question is page 1175 line 26.  That is where he relates the evidence about her experience to his findings on causation.

MS McLURE:   That is right.

GUMMOW J:   Where is the transcript of the plaintiff’s recall?

MS McLURE:   Volume 1, 196 and following.

GUMMOW J:   Thank you.  I am not quite sure I understand what the thrust of the cross‑examination of her was on this recall, reopening of her evidence in‑chief.

MS McLURE:   The cross‑examination goes ‑ ‑ ‑

CALLINAN J:   I think the issue was put to her at page 202 line 18:

You would have remained keen to undergo the treatment and you would in fact have undergone the treatment had you known that there was a risk of you developing symptoms emanating from the temporomandibular joint after the procedure?---Never.  Never.

She was directly challenged on it there.

MS McLURE:   Yes.

CALLINAN J:   And the judge did not believe that.

MS McLURE:   That is right.

GLEESON CJ:   It is her answer at line 36 that was the specific answer that he rejected.

MS McLURE:   Yes, that is right.  The trial judge also looked to the fact that the respondent had made her own inquiries concerning the proposed treatment:

understood the options…..elected to have the surgery because on all the evidence…..it was the only way the problems…..with her mouth and teeth, could be corrected effectively.

That is at volume 6 page 1176 lines 4 to 8.  That is the evidence of Professor Goss at volume 1 page 216 at line 43:

Now, in your opinion, was the surgical option associated with any risks or chances of an unfortunate outcome?---Certainly.  Firstly, surgery was the only means by which one could correct this problem if one was going to seriously address it and all surgery carries with it risks of complications.

The written submissions identify all of the transcript references to support the trial judge’s finding that she could not have achieved her goal of rectifying the severe malocclusion which carried with it the teeth breaking and the crowns breaking.

If I can just divert there, there were three options:  restorative dentistry, orthodontic and orthognathic, all three of which were required to resolve the respondent’s problem.  The cost of the first aspect, the restorative dentistry, was in excess of $21,000 and if she had not had the orthognathic surgery, then the problems with her teeth and the cracking and the breaking would continue.  So it is in the context of these sorts of facts that the trial judge, we say, looked at the question of causation.  He regarded the direct evidence as inherently unreliable and that all the objective factors pointed in favour of the patient proceeding with the treatment in the event that a warning had been given.

GLEESON CJ:   She needed surgery.

MS McLURE:   Yes.

GLEESON CJ:   She underwent surgery in circumstances that involved no negligent conduct on the part of the surgeon.

MS McLURE:   Correct.

GLEESON CJ:   She suffered painful complications which were the outcome of a risk which was not known to the profession and of which it was not the case that the surgeon should have been aware and the surgeon has been held liable for negligence.

MS McLURE:   Yes, and throw into the mix ‑ ‑ ‑

KIRBY J:   And what?  I did not hear that last bit.

MS McLURE:   I am sorry, to throw into the mix.  The evidence is that problems with temporomandibular joints are a risk of dentistry generally.

KIRBY J:   But that is irrelevant, is it not, because that is not what has happened or complained of?

MS McLURE:   It is relevant to causation.  It is relevant to materiality.  People make decisions based on all of these complex of facts.  If you need restorative dentistry and you are going to have it any event, as she said she would, and the risk of having the restorative dentistry and the orthodontics is the same as having orthognathic surgery, then it points all in one direction, we would say, not to mention issues of causation that will come back before a trial judge at some subsequent stage in the event of the matter going back.

KIRBY J:   Now, in the Full Court they said this was one of those rare occasions.  How did they justify what, in effect, is a disturbance of a credibility‑based finding and, on your analysis, very strong probability evidence supporting the conclusion of the primary judge?

MS McLURE:   Well, if I can take each of the judges separately, Justice Kennedy refers to these at volume 6 page 1192.  He makes the point that:

The finding of the learned trial Judge that the respondent had not been in breach of his duty to warn the appellant of the risk in this case did not depend upon the credibility of the appellant –

which is clear in this case because it was this question of whether he had knowledge, so it was not a credibility finding that resulted in the finding of no breach of duty.  Going on at page 1193:

This finding was made in spite of the appellant maintaining that she would have declined the osteotomy had she been fully and adequately warned of the risk of complications.  Senior counsel for the appellant has pointed to a number of factors which indicated that a proper warning would have deterred…..Some of them are as follows.  The appellant had prior unsatisfactory experiences of surgery, which had left her apprehensive about outcomes and thorough in her approach to the consideration of other procedures.

That does not purport to be a finding of the trial judge.  I do not know whether it purports to be a finding of Kennedy J, but certainly there is no comment on or reference to the evidence in support of that factor.

CALLINAN J:   Where was the evidence that there were other procedures only slightly less satisfactory?

MS McLURE:   That is inconsistent with the finding of the trial judge and we say is not supported by the evidence but it is clearly inconsistent with the finding of the trial judge, and we deal with these various aspects in our written submissions in reply.  There is no indication that Justice Kennedy is doing what one might expect, that is identify the trial judge’s findings, identify whether there is any proper factual basis for it and then making his own judgment.  It is just a statement that is inconsistent with the finding made by the trial judge and no analysis of the evidence to support the assertion but, in any event, in the reply we deal with these matters at paragraph 2.  The trial judge’s finding is supported by Professor Goss.  Does your Honour want to take me to the ‑ ‑ ‑

CALLINAN J:   No, I can read that.

MS McLURE:   It is paragraph 2 of the appellant’s reply.  So, in essence, Justice Kennedy relies on assertions made in written submissions filed by the appellant without considering the evidential basis or at least considering in his reasons why it is that he reaches the conclusions and makes the assertions that he does.  Where he refers to the procedure being “elective and non‑essential, and other options, only slightly less satisfactory, were available” contradicts the finding of the trial judge and there is no analysis of why Justice Kennedy came up with this view.

Her evidence was that she was not motivated by concerns to change her cosmetic appearance, but by her desire to prevent the development of jaw problems later.

That is not supported by the evidence that we would ‑ ‑ ‑

GLEESON CJ:   Well, it might have been a factor tending in the other direction.  This was not merely cosmetic surgery.

MS McLURE:   That is right and her evidence is, “I want it for my jaw function” and we have set that out in paragraph 2 of the reply as well.  The respondent’s evidence was that she was undergoing extensive and costly dental treatment because she was concerned about the function of her jaw and the appearance of her teeth and the possibility that if the malocclusion was not rectified it might cause significant problems later.    There is a variety of factors, and jaw function is obviously one of them and continued to be one of them.

Then Justice Kennedy refers to factors which the trial judge found pointed to the fact that the patient had done her own investigations, not questioned the appellant and relied on her own experience and knowledge to make an assessment of what she would do.

KIRBY J:   Can I ask you did you put in the Full Court that you could win the case on material or on the findings by the trial judge on the issue of causation?

MS McLURE:   I am instructed yes, your Honour.  Justice Wallwork deals with these matters at the end of his reasons and they are at page 1215.  Justice Wallwork was concerned about a number of matters, the first being at line 23:

the severe effects which the complications have had upon the appellant, both physically and mentally –

The submission put on behalf of the respondent ‑ ‑ ‑

GLEESON CJ:   But just a minute.  If you accept that there was no reasonable basis on which your client ought to have known of the complications which in fact occurred and that his negligence lay in not warning of the matters of which he should have been aware, how can you take into account the severe effects that the complications have had upon the appellant?

MS McLURE:   Yes.

McHUGH J:   But, as I said on the special leave application, it cannot have anything whatever to do with whether or not the trial judge’s findings on credibility stand.  It might explain why her evidence is unreliable but it just has no relevance whatever as far as I can see, subject to what Mr Heenan has to say about it.

MS McLURE:   That is the submission we make.  I mean, the evidence was unreliable on its terms, on its face.  You might be able to excuse a person or justify a person’s failure to give reliable or credible evidence for various reasons but it cannot change unreliable evidence into reliable evidence.  That is the proposition.  The reference to the garden ‑ ‑ ‑

GUMMOW J:   It seems to have loomed very large.

MS McLURE:   Yes, I cannot quite understand why because, of course, it is not even referred to by his Honour in the course of reaching his decision on causation.  I mean, it is quite clear, true, and I have given references in the submission, that in many respects the trial judge found the evidence of the appellant unreliable and he details where he does so and this is one of them, but it does not figure anywhere in his conclusion about causation.

Justice Owen deals with the issue at page 1216 and I should say, and I do in the submissions, Justice Owen is the only judge who identifies the actual complication and sees it as being what the issue is.  You will see at page 1126 at paragraph 30 - it is 1218, where his Honour just simply says that this is an appropriate occasion for the reasons given by Wallwork J where it is appropriate for an appellate court to intervene and overturn a

factual finding made by the trial judge based on reliability or credibility but does not elaborate any further on that.

The point that I was going to make before I went to that was simply that his Honour Justice Owen is the only judge who identified the issue as being whether the risk is of the respondent’s complications ‑ he is the only judge ‑ but then adopted Justice Wallwork’s reasons and Justice Wallwork’s reasons do not go into that.  Justice Owen clearly had problems with issues concerning materiality in this case, but did not take the matter any further.

KIRBY J:   On one view of this appeal this Court could deal with the matter solely on the arguments that you have just been advancing, that is to say ‑ ‑ ‑

MS McLURE:   Yes, on causation.

KIRBY J:   ‑ ‑ ‑it is true that sometimes an appellate court is authorised to come to a different view on the matters that have been the subject of a credibility finding, but this was neither approached in the right way nor does the evidence sustain that in this case and that the judges of the Full Court did not even begin to express why this was the unusual case that permitted that to be done and that that is error and that, therefore, on that ground, and that ground alone, the appeal must be allowed and all these nice and interesting points in Rogers v Whitaker go away.

MS McLURE:   Yes, your Honour, and I cannot improve on the summary that you have given, so unless there is anything further, that ‑ ‑ ‑

GLEESON CJ:   Thank you.

MS McLURE:   Your Honour, if I can just add, and it is in response to what Justice Callinan asked at the outset and perhaps it is for future reference, in terms of what the experts knew of the risk of the respondent’s complications, can we add Dr Lazar at volume 3 at page 987 at line 1 to 10.  Paragraph 16 of the submissions is where all that information is set out.  Thank you.

GLEESON CJ:   Yes, thank you.  Yes, Mr Heenan.

MR HEENAN:   May it please your Honours, might I say at the outset that the position that we take in this appeal, as we took before the Full Court and which we contend the Full Court accepted, is that there was a known risk of complications of this kind materialising following this kind of surgery.  Perhaps the precise experience of an example of this severity had not happened with Dr Rosenberg before, but he was aware of the risk of complications and there was a clear obligation to warn and there were alternatives.

McHUGH J:   Now, you will have to be more precise than you have been just in these opening remarks.  What exactly do you mean by the risks and by the duty to warn?  Are you talking about TMJ disorders or problems generally or are you talking about the specific risk of what actually occurred to the plaintiff?

MR HEENAN:   Both of those things, your Honour, but perhaps in order to avoid confusion about terms, it might be useful to look at volume 5 where there is a diagram at page 911 and we can identify the physiology and the areas that we are speaking about.  At volume 5, page 911, there is an illustration of the modified sagittal ramus osteotomy that was performed in this case.  As one can see, the lower jaw is dissected on both sides and is drawn forward and, as is shown in the bottom left‑hand corner, it is then reconstructed having been advanced by a centimetre or so, hence compensating for the retrusion in the malocclusion.  That was the operation which was performed.  Now, on this diagram one can see in several points the condyle or the ball of the mandible.  It is the extreme ball‑like joint, rather like a hip socket, that connects with the upper jaw, and that particular joint, where it engages with the upper jaw, is the temporomandibular joint and it is a very sophisticated one with a great degree of mobility.

GLEESON CJ:   You are talking about figure K on page 911?

MR HEENAN:   Yes, your Honour.  If we can go to page 972, one sees the skull in a lateral position with the condyle in the jaw socket and it shows the condyle/disc relationship in illustration A.  The disc is “displaced anteriorly” and the disc is that, in this illustration, small peanut‑like shaped piece of cartilage which moves between the condyle and the occipital area of the skull, and in B the disc is “interposed between the condyle and the articular eminence with anterior repositioning splint in place.  Anterior position of mandible allows functioning”.

Now, it is that disc or cartilage which, if it is advanced or subluxated, it is sometimes called, if it gets too far forward it can, in effect, freeze the joint.  The difficulties of the physiology, as was explained by a number of consultants in this case, is that the jaw joint can be advanced and retruded and raised and lowered, so it is not as if the condyle is in one socket all the time.  It can move forward and it can go back.  It can go from side to side, up and down.  So the movement of the cartilage or the disc is a very complicated and sophisticated technique.

If one can also go to page 979, one sees a simplified illustration of the osteotomy showing how the advanced lower jaw is screwed back to the area of the upper area of the condyle once the operation has been properly conducted.  At page 971 there are more illustrations, F and G, the:

Changes in the mandibular position after deprogramming with autorepositional splint.

Again, it is all to do with the positioning of the condyle in that socket and the area of the joint.  Now, your Honours, this very sophisticated joint is prone to develop symptoms or derangement if there is pressure conducted in the area of the lower jaw, say, for example, with an extraction or a filling, where pressure is imposed on the lower jaw or where there is surgery on the lower jaw.  The force can travel up to the condyle and cause derangement or displacement of the disc and that gives rise to the variety of symptoms collectively known as temporomandibular joint disorders.

The unanimous diagnosis in this case was that after all the surgery Dr Percival had an anterior subluxation of the disc, that is, that little disc gone forward, with the effect that the jaw was, if not entirely frozen, grossly restricted with associated pain and that the probabilities were that it was the effects of the surgery, maybe pressure, one cannot say and it is not necessary, that caused this derangement.

Now, the question was whether that was known or knowable prior to this particular surgery because, as the Chief Justice has observed, if it was not known or knowable it would seem to be unreasonable to impose liability on the appellant for failing to disclose.  If we go to Exhibit 38, which is an extract from a book called Tucker and Proffit, referred to as the bible – this is volume 5 at page 953 – there is a detailed discussion of:

Temporomandibular Dysfunction:  Considerations in the Surgical‑Orthodontic Patient

GUMMOW J:   Is this an American text?

MR HEENAN:   Yes, it is, but it was the evidence, I think of Dr Williamson, that this was the bible and was used by oral‑maxillo facial surgeons or consulted by them widely.  At page 955, on the first column, under the heading “Relationship of Malocclusion to TM Joint Pain/Dysfunction” there are a series of references indicating a relationship between malocclusion and TM joint pain or dysfunction.  I will not read the passages in full, but I do invite your Honours to read that carefully, and at page 956, on the second column, about halfway down, in the paragraph commencing:

In summary, it appears that some types of malocclusion may slightly predispose patients to TM joint problems –

and it goes on and elaborates and discusses that.  Now, in our respectful submission, your Honours, there was never any doubt that this represented the state of knowledge that a reasonably competent oral‑maxillo facial surgeon ought possess when contemplating this surgery ‑ ‑ ‑

KIRBY J:   You remember the appellant’s complaint that the Full Court fell into a trap, that what you are seeking to urge on us now is something immaterial and irrelevant to the actual damage that your client suffered in this operative procedure.  What is your answer to that?

MR HEENAN:   We say that that is not a justified criticism because any surgery of the type contemplated did have the potential, and had the known potential, to affect the joint which was proximate to the area because of potential derangement of the discs, as I have attempted to illustrate when we were looking at the diagrams, but if we go to page 977, there is a discussion of “TM Joint Problems Related to Surgical‑Orthodontic Treatment” and in the first column running down that page there are a series of explanations and how this can occur and how it is known and on the second column in paragraph 3 there is a passage:

Several factors related to surgical correction of dentofacial deformities can be associated ‑ ‑ ‑

KIRBY J:   But is this the transient short‑term plan of the kind that the pamphlet handed to your client speaks, or is this permanent and long‑term pain?

MR HEENAN:   It ranges from the former to the latter, your Honour.

GLEESON CJ:   Where do we see the latter?

MR HEENAN:   In paragraph 3:

Limitation of motion postsurgically is observed at least transiently in all patients who have mandibular ramus surgery and in a significant number long-term.  Immobilization of the jaws during healing is a major contributor to postsurgical limitation of motion and may contribute to other effects as well…..Prolonged muscle immobilization may be responsible for short-term functional problems and may actually have significant long-term implications.  In addition, jaw immobilization can produce degenerative changes within the TM joints.

And so on.  Now, in our respectful submission, your Honours, this evidence was simply not addressed by the learned trial judge, but it was clearly material and not in dispute.  There is more evidence to similar effect.  There is an article by Dr Delcanho, who was called and gave evidence, that is Exhibit 33.

McHUGH J:   Yes, but, Mr Heenan, you have to face up to the issue that there seems to be no dispute, it seems to be common ground, that there are what has been called TMJ disorders and there are problems arising from this type of surgery.  The case that is put against you is that the particular consequences that occurred to this patient were not known either to the appellant nor to the profession generally.  Now, the argument may be right or wrong, but you seem to be putting up a straw man.

MR HEENAN:   Well, with respect, no, your Honour.  We submitted to the learned trial judge that these were well‑known potential complications which ‑ ‑ ‑

McHUGH J:   Yes, I appreciate that, and I do not understand your opponent to dispute it, and your opponent does not dispute that there was no warning in respect of these matters in globo, but what is put against you is that that is a straw man, that is not the issue in the case.  It seems to me instead of addressing on these facts which seem to be common ground, the question is whether or not there was a duty to warn of these matters in the context of this particular case.  You may be right that there was a duty, but I do not see what these factual matters have got to do with the case because it seems to be common ground.

MR HEENAN:   Well, your Honour, I understood my learned friend’s submissions in the Full Court and here to be to the effect that complications of this kind were not known.

McHUGH J:   But what do you mean by “this kind”?

MR HEENAN:   Of the kind which occurred to Dr Percival, namely, anterior subluxation of the disc causing severe pain and gross immobilization of the jaw.

McHUGH J:   I think you are right in relation to that, but where is the evidence that that is a case?

MR HEENAN:   That is what has happened?

McHUGH J:   Permanently, not temporarily but permanently.  I mean, the complications that you claim have occurred are chronic, in the sense of permanent, disabling pain and loss of jaw function.  Now, unless I have misunderstood the evidence, there is only one known case of that occurring before this particular operation.

MR HEENAN:   There was one incident known to Professor Goss.  He subsequently learned of another and Dr Percival’s case was the third, but complications of this genus, namely, immobilisation and pain, or restriction in movement and pain, including derangement of the disc by the condyle, were known and the only variation between what was known and what occurred is one of degree.  That has been our case all along, your Honour.

McHUGH J:   It is certainly not the case that is understood by the Full Court.

MR HEENAN:   Well, it was my appreciation, perhaps wrongly, that it was appreciated that way, your Honour, because within the rubric of TMJ disorders or problems the Full Court, in my submission, encompassed what had transpired with Dr Percival and what was referred to in this academic literature, because this evidence, when it was drawn to the attention of the Full Court, appears to have prompted the view that this was a factor known to the profession which inspired the need for a warning.

GLEESON CJ:   Perhaps this exposes a conceptual difficulty involved in formulating a duty of care in terms of significant risks.  Your argument and that of your opponent on this point are like two ships that pass in the night.

MR HEENAN:   They do seem to be.

GLEESON CJ:   She says the risk that eventuated was relevantly unknown to medical science and you say it is only a question of degree.  There was certainly a risk of the kind that eventuated and it was significant.  What was unknown to medical science at the time was just how serious could be the consequences of that risk eventuating.

MR HEENAN:   Well, your Honour, with respect, we would attempt to refine that formulation somewhat.  We would accept that that was unknown to the appellant but it is doubtful whether that was really unknown to medical science.  A full reading of the Tucker and Proffit chapter, in my respectful submission, revealed a good deal about the state of the knowledge, but so will a reading of Dr Delcanho’s article, which is in the same volume at page 938, and that talks about the need to screen patients who have a tendency or a predisposition to temporomandibular joint disorders.

GLEESON CJ:   But do you accept that a conclusion that Dr Rosenberg should have warned of the risks of which you speak, however they are defined, carries with it a conclusion that he should have given a comprehensive description of the nature and extent of the risks as they were known or ought to have been known to him?

MR HEENAN:   Well, your Honour, it is true that there were difficulties in the case among the witnesses in formulating just what kind of a warning should be given.

GLEESON CJ:   The reason I ask the question is because ‑ ‑ ‑

MR HEENAN:   Yes, I know the reason.

GLEESON CJ:   ‑ ‑ ‑ a possible point of view is that the more comprehensive the warning, the less likely it would be to deflect a patient from the path of having surgery.

MR HEENAN:   One other member of the Court has already indicated a possible alternative to that view, your Honour, but the warning needs to be tailored to the requirements of the particular case and the level of inquiry made by the patient, but in this case, in our respectful submission, a warning drawing the respondent’s attention to the possibility that there may be severe problems with the temporomandibular joint causing immobilisation and chronic pain should have been given.  Now, whether more than that was required ‑ ‑ ‑

GLEESON CJ:   But the first question a patient would be likely to ask in response of such a warning is, “How severe?”.

MR HEENAN:   The answer will have to be, “Seriously disabling”.

GLEESON CJ:   I thought from an impression I had of Professor Goss’ evidence that it is at that point that there would have been an underplaying of the severity of the risk in the light of existing medical knowledge.

MR HEENAN:   Well, your Honour, can I just defer that answer for a moment because there is a lot in the evidence of Dr Punnia‑Moorthy, which I wish to draw to the attention of the Court, which fills out ‑ ‑ ‑

GLEESON CJ:   That prompts me to ask you this, Mr Heenan, how long do you think that your argument is going to occupy?

MR HEENAN:   I imagine I would be the best part of two hours, your Honour, perhaps a little less.

GLEESON CJ:   Thank you.  I just asked the question because of the next case.

GUMMOW J:   This evidence by Dr Delcanho, this article, was there any evidence as to the extent to which the screening process he advocates have entered into actual practice in Australia?  This is another United States article, I think.

MR HEENAN:   Dr Delcanho is an Australian dentist who was studying in the United States.

GUMMOW J:   I see.

MR HEENAN:   He wrote this article while working in the United States and he is a proponent of a need for screening.  I am not able to take your Honour directly to passages but I consider it a reasonable summary to say that he would probably regard himself as being in the forefront of the call for the widespread implementation of this practice, recognising that it was not widespread, certainly at the time the article was written, but, nevertheless, the need for the practice is prompted by the underlying risks.  At page 939 there is reference to “Healthy patients” and “Asymptomatic ‘adaptive’ patients”.  I am afraid this requires a little explanation of the physiology again.

Dr Percival had hypoplastic condyles, meaning small undeveloped condyles ‑ it was a developmental difficulty ‑ and that predisposed her, according to one view of the evidence, to a variety of symptoms and problems, some of which had occurred by clicking in the jaw and by an episode of the jaw locking on one occasion before the surgery.  Neither of those were very severe and they passed without incident, but they were indicative of a form of pathology, and it was explained in the course of the evidence that persons with such difficulties at a minor level can develop what are called adaptive changes which cope with the pathology and allow reasonable function without symptoms, but they are a class of patients who are vulnerable to, or predisposed to, or more predisposed than others to the kind of symptoms which can develop if these complications are experienced.  All that is to be found in Dr Delcanho’s article.

GUMMOW J:   This was going to the negligence branch of your case, was it not, rather than the advice branch?

MR HEENAN:   It did have that potential, but it is significant about the state of knowledge which existed at the time, the fact that complications of this kind could develop with asymtomatic or adaptive patients reflects a recognition that people with minor symtoms of the kind presented by Dr Percival were in an area of enhanced risk.  I am not saying that she leapfrogged into a significantly higher range of risk, but it was known that one could have a quiescent pathology which would be disposed to TMJ complications from orthognathic surgery.  Whether it be split sagittal osteotomy or some other kind of surgery is beside the point.  Surgery of that type could and was known to lead to these consequences.

CALLINAN J:   Well, in the article the author is deliberately urging that this be done as a defensive measure against possible malpractice suits, so it does very much go to warning or advice.

MR HEENAN:   The state of knowledge.

CALLINAN J:   He says that in the first paragraph.

MR HEENAN:   Yes, and it is also implicit in the conclusion on page 942.

GLEESON CJ:   Now, is that a convenient time?

MR HEENAN:   Yes, certainly, your Honour.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.26 PM:

GLEESON CJ:   Yes, Mr Heenan.

MR HEENAN:   May it please your Honours, before the Full Court the respondent advanced a series of grounds of appeal which can be found in volume 6, page 1181 and following, and they included a series of grounds that the learned trial judge had failed to make findings of fact which he should have made or made a series of findings which should not have been made.  The details follow from page 1182 to 1186 and 1187.

The Full Court dealt with most but not all of those grounds, as can be seen by the reasons for decision of Justice Wallwork at page 1216, and largely upheld the grounds in which it was asserted that there had been a failure to warn that there were reasons which prompted a warning and that the principles called for an informative warning, but left a series of grounds relating to particular facts found, and particular facts which we say should have been found but were not, for the retrial.  That can be seen at paragraph 103.

Now, we have picked up in our notice of contention, which begins at page 1226 and follows, those grounds which were left unresolved by the Full Court because one of our major criticisms against the reasons of the learned trial judge was inadequacy of finding and inadequacy of explanation of not only crucial facts in the case but of crucial steps in the reasoning.  This ground of inadequacy is significant in two respects.  First of all, it reveals the shortcomings which, we say with all respect, his Honour took to the criteria for identifying the warning that should have been given on the Rogers v Whitaker test.  Secondly, we say that it understates the significance of the warning and the likely reaction which a patient would have to a proper warning.

GLEESON CJ:   May I ask you, Mr Heenan, what do you now say is the warning that should have been given?

MR HEENAN:   Well, your Honour, we say that the warning should have included a component that the orthognathic surgery proposed had a small risk of causing severe derangement to the temporomandibular joint and chronic pain and restriction of function.

GLEESON CJ:   By giving me an answer that includes the words “included the component”, you avoid dealing with the question of what was the entire warning that you say should have been given because it would be, presumably, to the entire warning that the patient would respond.

MR HEENAN:   Yes.  Your Honour, there are passages in the evidence of Dr Punnia‑Moorthy, a consultant oral‑maxillo surgeon from Sydney, that I will take the Court to in a moment, but that indicates that there should have been a warning of the risk of temporary or permanent paraesthesia, numbness in the lip and in the region, of nerve damage, and of derangement or immobility of the temporomandibular joint.

KIRBY J:   I am missing every third word of yours, if you would speak up.

MR HEENAN:   I am sorry, your Honour.

GLEESON CJ:   But would that warning assign a percentage of ‑ ‑ ‑

MR HEENAN:   No, it would not, your Honour.  Dr Punnia‑Moorthy was careful to say that at least in 1993, and perhaps even at the date of trial, there was not a good understanding of the real incidence of these various risks but in his opinion they were sufficiently well known to warrant a warning, particularly in a patient like Dr Percival who had mild signs of derangement pre‑surgically.

Now, your Honours, the significance of the challenges in our notice of appeal and in our notice of contention, for present purposes, as well as dealing with the Rogers v Whitaker test, is that the learned trial judge has left without any express attention or analysis significant components of the case which we say are relevant to a consideration of the issue of causation, namely, the probable reaction of Dr Percival in the hypothetical situation of where she had been given a valid warning, and that, in effect, the inadequacies of the findings and the reasoning process deprive his Honour’s conclusion on that hypothetical question of fact of reliability.

KIRBY J:   Now, you did not have a notice of cross-appeal, did you?

MR HEENAN:   No, simply a notice of contention.

KIRBY J:   You did not have such a notice of contention before the Full Court.

MR HEENAN:   We were the appellant in the Full Court and our notice of appeal included all the matters, and others, which are in the present notice of contention.

KIRBY J:   So do you contend that these contentions are relevant to resolving the duty issue and the causation issue?

MR HEENAN:   Yes, we do, your Honour.

KIRBY J:   Assume that on the basis of the arguments to this point you were to lose those arguments, how would you bring these contentions in and what is the relief that you seek in respect of the contention?  To go back to the Full Court to ‑ ‑ ‑

MR HEENAN:   We simply seek to uphold the decision of the Full Court on these additional grounds.  We do not seek to vary the decision of the Full Court.  We accept that in the circumstances of the way this matter was dealt with by the learned trial judge it must go back for retrial on the questions of causation and damages.  Incidentally, as your Honours will have seen from the written submissions, this was a case where a large claim for damages was made and fought over and there were no findings at all.  There was the merest indication that the case was worth about a third of the amount claimed.

That is just an indication of the learned trial judge’s approach which led him to the view that what we say are significant parts of the case which were simply not addressed and they go to the reliability of the plaintiff respondent.  Now, your Honours, on these questions of fact, which are at the seat of the propositions in the original notice of appeal and in the notice of contention, a lot of attention is given to a number of factors which are in our written submissions.

CALLINAN J:   Mr Heenan, just before you go on with that, can you tell me whether there was any oral evidence about Dr Delcanho’s paper or the other paper that was put ‑ ‑ ‑

MR HEENAN:   Yes, there was, your Honour.  Dr Delcanho was asked, both in‑chief and in cross-examination, quite a lot about that paper:  how he came to write it; how contemporary the information was; whether the conditions spoken of were peculiar to practice in the United States as opposed to Australia; whether it was based on ‑ ‑ ‑

CALLINAN J:   The paper does not talk about the incidence of your client’s condition, the frequency.

MR HEENAN:   No, it does not, your Honour.

CALLINAN J:   Did he give any oral evidence about that?

MR HEENAN:   Not in a quantitative sense.  I take your Honour’s question to be directed to whether or not there is some statistic as to the level of frequency and I am not able to say that there was evidence in that form.  There was some qualitative evidence that it was a small risk, that it would be known to occur, there are some cases, and generalities of that kind.

CALLINAN J:   As the Chief Justice has said, it is not a case about statistics but statistics are relevant to the question of materiality.

MR HEENAN:   Well, your Honour, the best answer perhaps we can give, apart from going back to the evidence of Professor Goss and the evidence of Dr Punnia‑Moorthy, which I keep mentioning, is that it was a risk which the respondent’s consultants all considered warranted a warning.  To the extent that the opinion of members of the oral surgical profession is significant ‑ ‑ ‑

CALLINAN J:   Did Professor Goss say that, that there should have been a warning?

MR HEENAN:   Yes, he did.  Yes, your Honour.  The only two who had other views – the only two oral surgeons ‑ were Professor Norman, for the respondent, and Dr Rosenberg himself, and for two different reasons:  Professor Norman because he was conscious of the existence of the risk but thought it too small to warrant attention and Dr Rosenberg because he claimed that there was not – that it did not occur to him to give a warning.

Coming back to these propositions of fact, in paragraph 11 of our written outline of submissions we set out the proposition that in December 1993 it was, or should have been, well known that such an osteotomy entailed a small risk of causing TMJ problems, that:

The risk, although small, was mentioned in the leading textbooks and articular damage or dislocation was a known complication –

and we take you down to footnote number 12 which takes us to the Tucker and Proffit chapter, Exhibit 38, and to the Delcanho article, but it also takes us to a series of other passages in the evidence, which I will not trouble your Honours with at the moment, but we do invite your Honours to look at those passages to see the evidence which supported that proposition.  Your Honours, also on the question of facts that were not expressly found by the learned trial judge, in paragraph 15 of the written submissions we say that by the date of the trial there was general acceptance that since the December 1993 Dr Percival had an anterior displacement or subluxation of the condyles and, again, there is reference to documentary evidence and other evidence which supported that and which, in our respectful submission, was not really in controversy at the trial.

There are two other propositions of fact which we suggest to import.  Those are the ones set out in paragraph 9 of the written submissions, that there was pre-operatively a minor TMJ disorder which may be asymptomatic or quiescent or minor, however one cares to describe it, and the evidence in support of that is listed under footnote 10 and it is a combination of oral evidence, reports and radiographic findings.

At paragraph 13 we advance the proposition which his Honour Justice Kennedy expressly has upheld and which has been implicitly upheld by Justice Wallwork and Justice Owen that the osteotomy was not the essential or exclusive treatment, that there were other forms of treatment, perhaps not quite as effective, but serviceable, which would have produced a livable result and, again, the evidence in that regard, is under footnote 13.  There is a series of oral testimony and reports, all of which are collected there.

Now, if those propositions are sustained, that there was some pre‑surgical abnormalities, that the risk was known, that there were alternative therapies available and that the condition or the situation called for a warning, then one has to postulate the obligation of the appellant, Dr Rosenberg, in that situation and the likely response of the respondent and, by hypothesis, the risk was a more serious one or a more material one than the learned trial judge has recognised.  That being the case, it called for a warning which was informative of the consequences which could flow and those risks and those consequences in combination are likely to produce a sobering impact on any patient in those circumstances and one more significant than the learned trial judge obviously recognised.

As we have said in our written submissions, there is an interrelationship between the need for a warning and the probable reaction.  If a judge considers that an occasion does not call for a warning, then sub silentio that may involve an assumption that there is not a risk, or if there is a risk it is not material in the sense that the patient is unlikely to attach significance to it.  If that underrates the real position, then the postulated reaction of the patient to this situation will similarly be underrated because if the risk was more severe or the combination of risk and consequences threatened a more severe outcome then the response of the patient is likely to be ‑ ‑ ‑

KIRBY J:   Yes, but is it not a fair comment for the appellant to say, “Judging these things which are based on a hypothetical is very much a matter of estimate and devaluation and the best person to be in a position to do that normally is the primary judge”?

MR HEENAN:   Quite, we accept that.

KIRBY J:   And the primary judge here had the advantage of seeing your client and he heard your client say that she would not have had the operation and he disbelieved that.  That provides a very substantial obstacle on whatever view you take about appellate review for your to overcome and it does not seem to have been dealt with in the orthodox way by the Court of Appeal saying, “Well, this is a credibility finding but it is overwhelmingly to be balanced against objective facts”.

MR HEENAN:   I do appreciate that, your Honour, and I am attempting to get to the position where I can deal adequately with the Devries/State Rail Authority test, the review by appellate courts of findings of fact.  If the critical finding of fact depends on a complete analysis of both subjective and objective factors and if the learned trial judge examines the subjective factors and not the objective ones, we say his analysis is incomplete and that he has failed to take advantage of the position that he was in of seeing and hearing the witness.

McHUGH J:   But it is a subjective test according to our law and the plaintiff says she would have had it and the trial judge rejected it.  What more was required?

MR HEENAN:   Well, your Honour, may I defer the question of causation until I have identified some of the other areas where the learned trial judge has not addressed what we say are significant issues, including significant issues of fact.  On these matters perhaps, although not complete, the richest load of material is in the cross‑examination of Dr Rosenberg himself, which is in appeal book volume 3.  The passage commences at page 474.

Now, at the foot of page 475, when being asked about the February 1994 tomograms – these are radiographs taken after the osteotomy – Dr Rosenberg acknowledges that they are abnormal and that the condyles are hypoplastic, that is, small and undeveloped.  He also considers on page 476 and 477 that the left condyle was retruded and on 477 at line 21 that he strongly suspected that “Dr Percival had an anteriorly displaced disc”.  The question was whether or not this could be diagnosed or inferred from those particular X‑rays.  Dr Percival thought that they were inadequate for that purpose but they might have prompted an MRI or an arthrogram.

At page 480, at line 35, he acknowledges that “in Dr Percival’s case the anterior displacement of the disc”, “was there before”, meaning before the osteotomy.  At page 481, at the top of the page, he notes that in his clinical records he recorded that he had observed “a mild click” and he acknowledged that he realised, although he did not write it down, that there was an “anteriorly displaced disc” and he considered, towards the foot of the page, that there was some kind of erosion consistent with arthritis or arthrosis.  This was the real controversy between Dr Jackson, the radiologist, and Professor Norman and Professor Goss about the X‑rays, whether it was osteoporotic or osteoarthritis.

But the combination of these factors was a clear indication that there were pre‑surgical abnormalities, and that was conceded on page 482, and that it was of long standing of some years duration ‑ that is in the middle of page 482 – and if an “MRI had been done in November 1993 it would probably have revealed” the anteriorly placed disc, the misshapen condyle on both sides and osteoarthrosis.  Dr Rosenberg admits, at the foot of page 482, that the jaw condition so revealed would be classified as “abnormal”.

If one then goes to page 484, at about line 5, there is an answer which clearly indicates that Dr Rosenberg was aware of these problems pre‑surgically and that, in our respectful submission, is a very significant fact because it shows the existence, if not of pathology, certainly of abnormalities prior to the operation.

At page 487 he acknowledges that Dr Percival’s present condition was far worse than the position was in the situation before the surgery and he was asked what accounted for the deterioration and in a long answer between lines 4 and 20 on page 487, the clear conclusion is that it is the surgery.  Now, at the foot of page 487, he was asked:

And you knew that at least the sagittal osteotomy had the potential to produce such a result before November 1993?---Yes, that can result.

And on page 488:

And in fact it is well documented that it can result?---Yes.

There may be disagreement about the frequency of the problem but it could be in the region of anything from 1 or 2 per cent of the cases up to about 5 per cent, could it not?---5 per cent is a high figure, sir.

Somewhere between 1 and 4 per cent?---No, sir.  If you want to take Dr Goss’s figures, it was 1 in 2000, 1 in 2 and a half thousand, that would present with such severe symptoms afterwards.

I’m just asking you about your knowledge?---My knowledge is that yes, there can be symptoms and problems after an osteotomy and 5 per cent is ‑ ‑ ‑

Or less?---5 per cent or less.

Yes, but you never told Dr Percival of this?---I never told her of it.

Between lines 25 and 30:

Would you agree that from the point of view of a dental surgeon, whether he’s a prosthodontist or an orthodontist or an oral‑facial surgeon, the TMJ is always a potential area for concern?---Correct.

GUMMOW J:   Now, that article by Dr Delcanho indicates the possibility of alternative treatments.

MR HEENAN:   Yes.

GUMMOW J:   I think Justice Kennedy was criticised by your opponent for what he said on 1193, has not been borne out, but it is borne out there, on 936, there was material.

MR HEENAN:   Indeed, your Honour, and as we have said in our written submissions, it is not just that article.

KIRBY J:   What page is that, please?

GUMMOW J:   Page 936.

MR HEENAN:   It is paragraph 13 of our written submissions, footnote 13.  There are references in the evidence of Professor Goss and Professor Reade’s reports and Dr Punnia‑Moorthy reports and oral evidence in Dr Williamson’s report, in Dr Lazar’s report, Dr McNamara’s report and in the evidence of Dr Percival herself, who indicated that she would have taken the more conservative treatment.

CALLINAN J:   But, Mr Heenan, there was evidence of that, and I think ‑ well, first of all, you accept that the more conservative treatment if successful would not produce as good a result as the osteotomy if successful.  Is that not so?  You accept that?

MR HEENAN:   Yes, we do accept that, your Honour, but in the words of the witnesses and of the finding, it would have produced a serviceable result.

CALLINAN J:   But was there not evidence, and I think the trial judge may have accepted it, that your client had said to another doctor – was it Dr Mezger?  Is that his name?

MR HEENAN:   Dr Mezger.

CALLINAN J:   Dr Mezger – that she wanted the best result.

MR HEENAN:   She was hoping for the best result that could be achieved.

CALLINAN J:   Yes.

MR HEENAN:   The situation went like this, your Honour.  She was attending her general dentist ‑ ‑ ‑

CALLINAN J:   She went to two other dentists, as well as a radiologist, did she not, two other dentists or surgeons, Dr Lazar and Dr Mezger?

MR HEENAN:   She was being attended to by her general dental surgeon, a Dr Davies.  He referred her to Dr Lazar ‑ ‑ ‑

CALLINAN J:   I have read all of that.  I was just simply interested in the fact that there was evidence that she wanted “the best result”.

MR HEENAN:   She wanted her condition investigated and a course of treatment recommended for consideration.  This led to a series of consultations:  Davies to Lazar, Lazar to Mezger, Lazar and Mezger in combination to Dr Rosenberg.  That began in early 1993, leading to a series of consultations in which there was a working up and an analysis and a series of radiographic investigations in order to consider whether or not surgery was possible and feasible.  When the respondent went to see Dr Rosenberg, she was not committed to having surgery; she was seeking opinions and recommendations.

CALLINAN J:   There is no need to go into it.  What I was looking at was the evidence at volume 6, page 1167, at about line 23.  Dr Lazar:

went on to say that the plaintiff had said that she wanted the best result –

that is what I had in mind.

MR HEENAN:   Yes, your Honour, but that needs to be read in context.  The context is that it was during this working up process in which the respondent was proceeding from consultant to consultant and considering whether or not surgery was a feasible option.  In my respectful submission, it should not be read as an unreserved commitment to surgery.

CALLINAN J:   No, we are not suggesting that.  But it is certainly a basis for saying that she would have been likely to decline the more conservative treatment because that was unlikely to produce as good a result as successful surgical treatment would.

MR HEENAN:   That would certainly be so if the only advice which she received was the information pamphlet which gave an assurance that there would be return to normal function within a matter of weeks or months.  That was almost a guarantee of success.  So, in our respectful submission, your Honour, the question has to be posed in the context where there is no such assurance available, and indeed, there is a meaningful warning of some significant risk.

Your Honours, just going back to Dr Rosenberg’s cross‑examination at page 488 in volume 3, in our respectful submission, there are a series of admissions or concessions made by the appellant there, which have not been recorded or acted upon by the learned trial judge, but which go directly to matters of significance about the gravity of the surgery, about the state of knowledge of the risks or complications which were of a genus that resulted, and of the existence of pre-surgical abnormalities, which we know from the literature, put Dr Percival into a situation of enhanced risk.

So, in our respectful submission, his Honour’s failure to make findings in this regard is a very significant inadequacy in the statement of the reasons, and it colours the approach which is taken to all progressive issues which depend on that, namely, the significance of the warning and the probable response.

McHUGH J:   But how can that be?  I mean, the question is what is the warning that she should have been given?  Now, you have to formulate that and then you ask, if she was given that warning, would she have acted on it?  What has the doctor’s admissions about these other matters to do with that issue?

MR HEENAN:   Well, your Honour, can we go to what Dr Punnia‑Moorthy says would be the appropriate case to a warning ‑ ‑ ‑

McHUGH J:   But why do we need to go to that?  You have put the question as to what the warning should have been about adverse outcomes.  The witness gave her answer, and she was rejected on that issue.  Now, what more can be said about the case?

MR HEENAN:   Well, exactly that thing happened in Ellis v Wallsend Hospital.  The Court of Appeal in New South Wales came to the conclusion that that finding by the trial judge, disbelieving the patient plaintiff in those circumstances, was wrongly based because his Honour did not consider adequately the attendant, objective factors.

McHUGH J:   Well, there are cases and cases, but in this particular case, the trial judge took a very dim view of the plaintiff’s credibility.  He did not think she was a reliable witness generally.  To be perfectly frank, he took the view that she would, in effect, say anything that would advance her case.  He almost said that in terms.  Having taken that view about her credibility, you having put the warning question to her, she said that she would have not gone on with the surgery if she had been told there were adverse outcomes, et cetera; she was rejected.  What more can ‑ ‑ ‑

MR HEENAN:   Perhaps, your Honour, the best answer that can be given to that proposition is what your Honour Justice McHugh said in Chappel v Hart (1998) 195 CLR at 246. There, at paragraph 31, your Honour is dealing with the example of the landslide and the advice to the traveller of what routes to follow in order to avoid the landslide, and goes on to say in paragraph 32:

Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action.  Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered.

Then your Honour adds a footnote referring to Rogers v Whitaker, Nagel and Reibl v Hughes, which I must say in our written submissions we have consistently misspelt.

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.

Now, that is a common observation in cases of this nature. 

In the recent Canadian case of Arndt v Smith, which is reviewed in the Law Quarterly Review by the celebrated author and the co-author of the work on causation, Professor Honoré, the learned commentator goes on to explain that the choice by the Canadian Supreme Court for the modified objective test in relation to a response for a warning, is to avoid the inscrutability of the conscientious but self-serving answer of the plaintiff, “Of course I would have acted differently”, which must almost invariably be given in these cases with the benefit of hindsight.  But, the learned commentator goes on to say that adopting such a modified objective test is no answer if the hypothesis is that the criterion for liability is otherwise too wide.

In Britain in the recent case of Bolitho, where they still add here to the Sidaway test, but the subjective test in relation to causation, and in the Australian jurisdictions where we adhere to the subjective test, emphasis is given on discerning what is the most probable response of the plaintiff patient in the circumstance of the hypothetical warning.  Their Honours in Ellis v Wallsend and the judges in the two recent English decisions – I will come back to the citation in a moment – all indicate to the same effect as the footnote in Justice McHugh’s judgment in Chappel v Hart, namely, that one is expecting too much of humanity to contemplate that anything else but a conscientious answer affirming a decision to avoid the surgery in those circumstances would be given.  So, the corollary of that approach is to place very little reliance on the answer given by the patient and to look at the objective factors in order to see whether or not there are social, cultural, financial or other rational factors which impinge on the plaintiff which would be likely to induce her to act in a particular way, and that a conclusion based on those factors is invariably more reliable, and almost always the only way to go when making that finding of fact.

In Ellis v Wallsend the situation which occurred was the trial judge disbelieved the plaintiff’s assertion that he would have acted differently, just as has happened here.  But that decision was regarded as wrong by the two justices in the New South Wales Court of Appeal, and the third judge agreed with those opinions, on the basis that there had been inadequate analysis of the other objective factors.  So, in our respectful submission, Ellis v Wallsend is a good example of how a case like this can miscarry. 

It may be one thing to disbelieve Dr Percival when she gave evidence at this trial in 1997, years afterwards, when she says she would have acted in a different way.  But, in our respectful submission, all that that can mean is that the judge is then left not knowing how she would have acted.  There is then a necessity to examine the objective external factors and to deduce from them what the probable reaction would have been.

In this case, the learned trial judge made the assessment of the reliability of the respondent in 1997 at a time when she had a history of diagnosed psychiatric illness associated with depression and chronic pain which had been more or less constant since early 1994.  There had been 17 psychiatric consultations and three periods of admission to hospital for treatment for the depression, and it was plain that Dr Percival was very preoccupied with what had occurred and almost obsessive about the consequences which this event had for her:  the destruction of a career, the imminent loss of employment and severe curtailment of all activities of her life. 

So, it is not so much a question of whether or not she was a reliable witness at trial in 1997, the real question is how would she have reacted in her pre-morbid condition if properly warned in November or December of 1993.  That was the question upon which the issue of causation turned.  But the learned trial judge has equated disbelief in the respondent in 1997 with a positive conclusion that she would have acted to disregard the warning in 1993.  In our respectful submission, that does not follow.

Although Justice McHugh has said in the footnote referred to that demeanour may be a ground for rejecting the plaintiff’s evidence, one should, with respect, examine that proposition very carefully.  It may be a ground for rejecting the plaintiff’s evidence.  If the impression of the plaintiff’s demeanour was that she was a dishonest, fraudulent person intent upon pursuing some deliberate fraud, then such a conclusion may well be warranted.  If, on the other hand, the conclusion is that the plaintiff is unreliable because she is obsessed with the situation, she has reconstructed events, she is labouring under the consequences of her disabilities, and she can now no longer reason or recall clearly or confidently how she would have reacted in 1993, it is a different situation entirely.

McHUGH J:   But your case comes down to this, does it not, that if she had not been asked to give any evidence at all in the case, the learned trial judge was bound to find in her favour on this issue?  That is what it must come down to.

MR HEENAN:   Well, your Honour, in Chappel v Hart and, more particularly, in Bennett v The Minister for Community Welfare in Western Australia, there is a theory of causation which is propounded by, I think, three members of this Court – I am sorry, four – which identifies the scope of the risk, or the scope of the breach of the duty.  If the breach of the duty produces a position which has the potential to lead to harm, and the harm is occasioned, there is an open inference that the breach of the duty has caused the harm.  It is an inference which can be rebutted by evidence called on the other side, a Watts v Rake-type situation.  Both Chappel v Hart and Bennett support the conclusion that in the absence of evidence that the respondent would not have heeded the warning, a proper inference is that it was the failure to give the warning which produces the harm and provides the causal link.

Now, a lot has been written, both in the judgments and in the academic articles which are referred to in our written submissions, about the unreliability of the evidence of plaintiffs about how they would have reacted if a proper warning had been given.  Your Honours, the two English cases that I was trying to remember a few moments ago, was Smith v Tunbridge Wells Health Authority [1994)] 5 Med LR 334, and McAllister v Lewisham and North Southwark Health Authority [1994] 5 Med LR, a judgment of Justice Rougier in the Queen’s Bench Division.  In McAllister’s Case there is a passage in the first column on page 353 which is perhaps helpful on this point.  At about halfway down that page, his Lordship says:

Who can ever say with confidence just what they would have done had matters been different?  Mrs McAllister’s inate honesty prevented her trying to improve her case in this fashion.  What she said about it was that if she had been told of any risk to the function of her arm she would have declined to have the operation at that point in her life because her job was, as she put it, paramount, and that even if she had been told that the arm might bleed and that there was a small chance that that would kill her, she would still have taken her chance and would at the very least have wanted to wait and that once her probationary period was over she might have got a second opinion.

Now, this was a case in which the evidence from the plaintiff about how she would have reacted if properly warned was tentative and, to a degree, inconclusive.  But the learned trial judge preferred to analyse the probable reaction to the hypothetical position, not by dwelling on the answer but by dwelling on the contemporaneous factors which were pressing on the patient to that point.  In our respectful submission, a reading of all the other cases and all the other literature indicates that almost invariably that is regarded as the most telling and reliable result.

To return to your Honour Justice McHugh’s question as to whether there would have been an obligation upon the learned trial judge to find for the respondent had she not given those answers, the answer to that would require a full and detailed analysis of what were the factors which were influencing Dr Percival at the time:  how great the risk was; what were the terms of a proper warning; whether she could avoid surgery by taking some other form of treatment which was less intrusive, but perhaps less effective; what was her temperamental background; had her experience with spinal surgery, which had caused her to take a year off when a younger woman, conditioned her to be apprehensive and suspicious of the risks of surgical intervention; what affect would it likely to have had on her career; how measured was she in taking advice from her many consultants?  In our respectful submission, examinations of that kind are all but indispensable.  The learned trial judge simply did not undertake them.

KIRBY J:   Well, this was already a very long judgment and ultimately the question, being subjective, as the law of this country requires, involves an assessment of the internal workings of the mind of your client.  The judge who had the advantage of sitting through the trial, and the orthodox advantages that are attributed to the judge, came to the view that he did not believe your client’s statement that she would not have had the procedure.  It is very difficult in those circumstances, unless we completely undo all of the rules of restraint that govern appellate courts, to say, “Well, you have to write another 20 or 30 or 40 pages and you have to consider all these before we will give any credence to your assessment of the subjective opinion of this litigant”.  You will have gathered from State Rail and others that I am the most inclined to look at the objective facts, but that does not mean you turf out the window the rule that judges have responsibilities.

MR HEENAN:   Your Honour, we fully accept the restraint which should be exercised by any appellate court when dealing with a finding of fact in relation to issues of credibility.  Yet, where there is an appeal on an issue of fact, the right of appeal is as ample as is on any other ground, and the only limitation on the scrutiny of the court is one of the ability of the court to carry out adequate assessment and review.  One, in most cases, cannot rival the advantages of the trial judge because of the subtle effects of demeanour and attitude and all the matters to which your Honour Justice Kirby has alluded.  That does not mean, in our respectful submission, that a decision on the question of whether or not a patient would have acted differently some four years beforehand in a pre-morbid condition, can be answered just by watching the witness in the witness box and determining whether or not she is reliable.

McHUGH J:   Yes, but there is more to it in this case.  If your client had not given any evidence at all in this case, I would have said, having regard to the small degree of risk involved in this case, that she certainly would have gone ahead and had this operation.  That is the reality of the matter.  So, she needed to get up on the subjective element and, therefore, in this case, what she had to say was critical.  Most people who go along to doctors, unless it is a case like Rogers v Whitaker - in Mrs Whitaker’s case where the alternative is blindness, you might say objectively, “Well, I do not think she would have gone on with it in those circumstances”.  But, that is not this case.  I mean, on any view, the complications are small and what happened to her was unknown, or practically unknown.

MR HEENAN:   With respect, your Honour, that formulation of the issue accepts at the high watermark the case which has been argued for the appellant.  In our respectful submission, that is not an accurate panorama of the facts and it is not consistent with the conclusions reached by the Full Court, which accepted several of our grounds of appeal.

KIRBY J:   But you must admit that the Full Court, in failing to say, “Well, we have these principles from the High Court about subjective - this is a subjective judgment, a subjective assessment of the plaintiff, we are going to override it”, I mean, there is no evidence at all that their Honours went about the very serious matter of disturbing the assessment of the primary judge.

MR HEENAN:   Your Honours, the result of the Full Court, in our respectful submission, needs to be approached on the basis that the Full Court was satisfied that there were many serious inadequacies in the findings and reasoning process of the learned trial judge.

McHUGH J:   Well, they identified what they were, and at the moment, and particularly Justice Wallwork’s, do not seem to me very persuasive at all.  In fact, they do not even seem to me to be persuasive in the slightest.  I can understand Justice Kennedy’s approach, whether you agreed with it or not, but do you support Justice Wallwork’s approach?

MR HEENAN:   Yes, we do, your Honour, but I am not saying that that is the only approach or the best approach.

McHUGH J:   I understand that, in fact, that is why I asked you the question because I thought you had been evading specific reliance on his approach and that you wanted to approach the matter from a quite different angle, which I can understand.

MR HEENAN:   Your Honour, the difficulty which confronts any appeal court when it decides to send a case back for retrial on an issue which is critical in the case is that detailed expressions of view upon the remaining issue are likely to be embarrassing or to harbour or to impede the independent resolution at the retrial.  There must be a prudent reticence in what is said by a Court of Appeal on an issue that is sending it back for retrial.  In many respects, the less said the better.

McHUGH J:   Well, if there is such a rule it must be subject to the rule that a judgment must explain adequately the reasons for its conclusion and Justice Wallwork has given his explanation and that is all.  It has nothing to do with any of the matters that you have been putting in support of – apart from, perhaps, one matter.

MR HEENAN:   Well, your Honour, the situation is very similar to the recent decision of the Court of Appeal in New South Wales in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, a decision of President Mason and Justices of Appeal Meagher and Sheller. There a case was sent back for retrial because of inadequacies in the reasoning process of the learned trial judge and a failure to make findings on essential areas of the case.

Now, if we can make good, as we did before the Full Court, the propositions which were in our written submissions and which I have been advancing this morning and this afternoon, namely, that Dr Percival did have an abnormal jaw, probably within that….disorder which rendered her prone to post-surgical TMJ problems and disorders after an osteotomy and, secondly, that it was known in fact by Dr Rosenberg and certainly by others that there was a risk of these complications, thirdly, that the risk was not insignificant and, fourthly, that there was a need for a warning, it will be seen that there are major shortcomings in the learned trial judge’s approach to this case.

His Honour, with all respect to him, has on for major issues, underestimated or wrongly concluded the significance of the evidence.  We then come, via a series of other sub-issues which have been left undecided and which it is clear that his Honour has formed an adverse impression of the plaintiff on whether or not she should have submitted to further surgery since the misfortune, whether or not she made an unjustified application to the Edith Cowan University for employment, whether or not she and her husband deliberately let the garden run down, one sees a steady accumulation of errors. 

Not only are they errors but they are assumed findings which do not have any reasoned basis and they do not address either the facts on the other side of the issue or the legal rules which apply but they are rolled together to destroy the credibility of the plaintiff.  After such a series of mistakes why should the ordinary level of confidence in the assessment of credibility be sustained because there again that finding of credibility of how the plaintiff would have reacted in the hypothetical situation does not depend entirely, or we would say even predominantly, on the demeanour of the witness in the witness box.  She may be so thoroughly affected by the consequences that she is no longer reliable at all.

McHUGH J:   No, but there is more to it.  For instance, surely a factor that would tell powerfully against your client was the fact that after all this had occurred she underwent the operation with Dr Williamson without querying at all the results of the complications that might flow from that.

MR HEENAN:   Well, that was not subjected to investigation, your Honour.  His Honour refers to it in his reasons for decision but it was not the subject of any analysis during the course of the trial.  It was just a throw away line.  In our respectful submission, the conclusion of the Full Court should be treated in the same way as the conclusion of the Court of Appeal in Beale’s Case, namely, a conclusion that there was just an inadequate examination of the necessary issues.

McHUGH J:   Well, it seems to me to be a case far removed from Beale.  In Beale you have three witnesses corroborating the plaintiff and the trial judge nevertheless rejecting one of them, not cross-examined on and, indeed, accepted on another aspect of the case.

MR HEENAN:   Yes, Beale is like the State Rail Authority.

McHUGH J:   Yes.

MR HEENAN:   I obviously accept that, your Honour, but both cases are examples of the proposition that where reasoning yields to analysis it is subject to review and in this case, in our respectful submission, the obligation on the trial judge was to address the situation of the probable response of Dr Percival to a warning couched in sufficient terms and to examine it from her point of view in her pre-morbid condition uninfluenced by the deterioration of career, family and health.

Now, that was simply not done and there are many factors which are in the written submissions and which I have been attempting to instance in which his Honour has made wrong findings and on this ultimate issue it is almost impossible, in our respectful submission, to say that the influence of those other errors ceased when it came to the point of determining the critical issue of how the patient would have reacted if properly warned.  In our respectful submission, the Full Court was justified in saying that this is an occasion where the trial judge has failed to use his advantage because he has failed to undertake in the proper way a review of the critical facts, coupled with his other mistakes the resulting decision is unsafe and unreliable, we cannot decide it ourselves, it has simply not been adequately resolved and it must be retried.

McHUGH J:   Why must it be retried?

MR HEENAN:   Because it has not been properly decided.

McHUGH J:   Well, we can decide it for ourselves, on one view of the matter.  We know the trial judge has rejected the plaintiff’s credit so we need not worry about that.  You just look at the facts of the case.

MR HEENAN:   Well, the question, your Honour, is whether the trial judge was correct to reject her credit.

McHUGH J:   But he rejected her credit because of the way she had given her evidence‑in‑chief and what he saw of her in cross‑examination.  He regarded her as a generally unreliable witness who would tailor her evidence to suit her case.  He said that.

MR HEENAN:   Well, I have forgotten the passage where he said that in as many words, your Honour.  I accept that he was very critical.

McHUGH J:   Well, around 1085 ‑ ‑ ‑

MR HEENAN:   Very critical of the evidence.  What has happened ‑ ‑ ‑

McHUGH J:   At 1084 he said:

it very rapidly became apparent that the plaintiff was most anxious to tell her story in a way in which she thought would benefit her case and to play down anything that she thought might be to the contrary and at the end of the cross‑examination I can only say that this view was reinforced and I was far from satisfied that the plaintiff was a reliable witness.

Then he goes on to say:

there were particular instances where I considered her evidence to be unreliable and this has actually been later confirmed having seen and heard witnesses who have given evidence concerning particular aspects of Dr Percival’s evidence ‑ ‑ ‑

MR HEENAN:   Your Honour, I accept those are very damning conclusions against us.

McHUGH J:   Well, they are.

MR HEENAN:   And if they came from a judge who had correctly approached and analysed the issues in the case and marshalled the evidence, they would be almost irresistible, but they come from a judgment where there has been a failure to find that there was a known risk, there has been a failure to find, in fact an erroneous finding, that there was no pre‑surgical abnormality, there has been an erroneous finding about the availability or the non‑availability of alternatives and there has been an erroneous finding about the significance of the risk leading to the need to warning.

So, one is approaching the position of a judge who is taking a view that the situation was far less menacing, that the risk was trivial to the point of being insignificant and that, in those circumstances, “Of course, I do not believe this witness whom I do not trust when she says that she would have acted differently.”  But, if you alter all of that and say that the risk was significant, there was an abnormality, that the defendant did know about it, there were alternatives, and when it came to assessing the credibility of the plaintiff, there were a lot of sub‑issues dealing with the effects of her career loss, her continued pain and her psychiatric state.  All those cry out for analysis and attention.

If that is not done, all we have is a finding that, “I do not believe the plaintiff when she says now in 1997 in her present condition that she would have acted differently”.  In my respectful submission, that cannot, in logic, lead to the conclusion that she would not have acted differently.  All that it leads to is a conclusion that, “I cannot accept her word” and one must look elsewhere.  The analysis of the other evidence which is, almost without exception, examined so minutely in all the other cases, is simply missing here, simply not done.

Now, that is why we say the case has not been adequately decided.  Now, I appreciate, your Honours, that this is a heavy burden and I appreciate that if all the observations which your Honour Justice McHugh directed towards me a moment ago came from a judge who had carried out a correct analysis and a comprehensive analysis of the facts and the law, I would not be able to make these submissions to your Honours or to any other court, but when they come from an inadequate examination of the evidence, from a situation where so many of the issues have been ignored, one, in my respectful submission, cannot have confidence in them, and that is what the Full Court has decided.

Now, your Honours, have the Full Court acted on a wrong principle?  In my respectful submission, they have paid regard to Devries and Abalos and all the other cases.

KIRBY J:   You say that but when one contracts that with the care with which the New South Wales Court of Appeal in Beale dealt with the matter they stated the principle of non-interference, they indicated the matter that disquieted them, namely, that the trial judge’s reference to a wholly extraneous matter relating to the affairs which the plaintiff had had with a boyfriend which had nothing to do with the damages case and then they went on to look to the objective strengths of the evidence of other witnesses.  That is orthodoxy.  In this case there is just a leap to another person’s opinion and without explaining how they get over the hurdle of the assessment of the credibility of your client.

MR HEENAN:   With respect, your Honour, all that that may indicate is that the Full Court have made a similar mistake to that of the learned trial judge but it does not lead to a conclusion that the learned trial judge’s finding is correct or should stand.

KIRBY J:   Well, I am not sure about that.  The test is subjective.  The witness gave a statement.  The judge disbelieved her.  To get over that you have to have very powerful objective - “compelling” is the word - compelling objective evidence.

MR HEENAN:   Well, your Honours, we have endeavoured to set that out in our notice of contention and if I may go back to that.  At volume 6, page 1227, after dealing with the alleged inadequacy of the reasons, we say at line 10:

upon the undisputed evidence at the trial the learned trial Judge should have found that:-

(i) the Respondent (Plaintiff) had a pre‑operative minor TMJ disorder which had clinical manifestations –

et cetera.  In our respectful submission, that is a finding which should have been made and it is as good as admitted by Dr Rosenberg in his cross‑examination.  Secondly, that:

the bi‑lateral sagittal osteotomy recommended …..was not an essential or exclusive remedy…..Other acceptable alternatives were available –

Justice Kennedy has upheld that proposition.  We have given the references in the written materials.

(iii) the Respondent (Plaintiff) had not been informed by the Appellant (Defendant) or any other treating dentists that she had a diagnosed minor TMJ disorder…..This lack of explanation denied her any opportunity to make her own enquiries or seek second opinions –

That, in my respectful submission, is not in contention.  Next:

the Respondent (Plaintiff) was not motivated by concerns to change her cosmetic appearance.  Her concern was to prevent the development of jaw problems later.

In my respectful submission, that is also borne out by the evidence, and:

the advice which the Appellant (Defendant) gave was expressly reassuring in representing that a full return to function –

The we go on to say that:

the learned trial Judge erred in making a series of findings of credibility adverse to the Respondent (Plaintiff) in that:

(i) the only details of any warnings given by the Appellant (Defendant) to the Respondent (Plaintiff) were in writing, and in evidence before the Court, and so were not in dispute ‑ ‑ ‑

GLEESON CJ:   Mr Heenan, can I ask you a question on that point relating to the form of the order that was made in the Court of Appeal?  I am looking at page 1220, subparagraph (3) of order 2.  Do you see that, beginning with the words, “In lieu of”?

MR HEENAN:   Yes.

GLEESON CJ:   Now, they have declared the breach of duty:

the Respondent was in breach of his duty of care to Appellant in failing to warn of the risks –

et cetera.  Then, they have remitted the matter for a new trial and one of the issues is causation.

MR HEENAN:   Yes.

GLEESON CJ:   When the judge in the District Court comes to retry the question of causation, what will be the starting point for that consideration?  I mean by that, what will be the warning that the trial judge will consider should have been given?

MR HEENAN:   Well, your Honour has identified a very difficult point in the case.  This order which was made some weeks or months after the decision was given was the subject of controversy between the parties resulting in a further hearing before the court.  The appellant before the Full Court had been contending that the court should make a finding on the issue of causation and send it back only for retrial on damages.  The present appellant has taken the view which prevailed, and I accept correctly, that the issue of causation involving, as it did, a question of credibility, no such finding should be made by the Full Court and required a fresh hearing by a new judge and there was a lot of argument about the terms upon which the order should be made.  The appellant was contending for a retrial on all issues.

Now, I accept that the order requiring a retrial on causation and on damages will beg a number of questions about what is the causative element because of the proposition which is in our written submissions and I made this morning that the interrelationship between the warning and the reaction the more - the content of the warning will shake, or has the potential to shake, the reaction.  So, I accept that there is a latent difficulty here and if it is regarded as a significant one we might have to accept a retrial on wider terms, but it has not been argued by the appellant in that way.

GLEESON CJ:   What occurs to me at the moment is that the Full Court appears to have, in effect, precluded the new trial judge from finding that no warning was called for but left open by its order the question of the content of the warning, a question which as you say, and I would have thought rightly say, is a question that might be intimately related to the question of the reaction that the patient would have had to that warning.

MR HEENAN:   Yes.  I have not understood my learned friend to have argued that on that ground there should be a full retrial, although I have noticed from the notice of appeal that the orders which are sought on page 1225 that:

the Action be remitted to the Full Court of the Supreme Court of Western Australia for rehearing of the Respondent’s appeal ‑ ‑ ‑

GLEESON CJ:   But you had no cause of action in contract, did you?  Your cause of action was in tort.

MR HEENAN:   No, it was in tort.

GLEESON CJ:   All right.  So, damage was of the gist of the action.

MR HEENAN:   Yes.

GLEESON CJ:   What they have done is to make half a finding on liability.

MR HEENAN:   Yes.  I acknowledge that there are problems in that, your Honour, but however real they may be they should not lead to this appeal being dismissed.

KIRBY J:   It is not unknown, is it, where you have won and are entitled to win and to hold a determination on an issue for the Court to say, “Well, you should not be put in peril of trying that issue again”.  I mean, it can do so but it can say, “Well, you have won that.  We will draw the line.  You have proved a duty of care and you have proved that there is a breach of the duty in the sense of failing to warn but there is still a very big question in our mind as to whether breach of the duty that occurred, of the content of the duty, is relevant in the sense that you would not have gone ahead with the operation”.  I take it that is what their ‑ ‑ ‑

MR HEENAN:   Your Honour, it is very easy to be wise after the event and in the light of all the submissions which have ‑ ‑ ‑

GLEESON CJ:   I am sure that Dr Rosenberg agrees.

MR HEENAN:   Yes.  In the light of the submissions which have been made by my learned friend this morning about the questions of materiality, it may be that he real conclusion of the Full Court is that the occasion is one which called for a warning but the content of the warning has not been decided.

GLEESON CJ:   It might have been a more orthodox course for the court to remit the matter for a new trial consistent with the reasons for decision of the Full Court.

MR HEENAN:   Yes, that would have been possible.

McHUGH J:   Well, indeed, is not the general rule that if there is to be a new trial it should be a new trial on all issues?

MR HEENAN:   That is the general rule, your Honour.

McHUGH J:   Yes.

MR HEENAN:   But there have been some conspicuous exceptions to that in this jurisdiction in recent years.

KIRBY J:   Such as?  Do I hear a little complaint being voiced here?

MR HEENAN:   Not a complaint of this Court, your Honour, I hasten to add.

McHUGH J:   I mean, it is common enough to allow a plaintiff to hold a verdict on liability and just send it back to assess on damages if a new trial is required because they are quite separate issues but it is pretty unusual to attempt to divide up issues within an area such as liability or damages.

MR HEENAN:   I accept that, your Honours, and this examination is but another illustration of how an adequate decision in this case required an identification of the warning which should have been given before one can get to the point of estimating ‑ ‑ ‑

KIRBY J:   It seems as though you are not defending the Full Court, you are now criticising the inadequacy of their examination.  Your notice of contention is to defend the order which they entered, although on a different ground.

MR HEENAN:   Yes, your Honour.  We have renewed grounds which were not dealt with by the Full Court but this interdependence of the warning and the reaction, in our respectful submission, goes to the heart of ascertaining the probable reaction of the plaintiff in the hypothetical situation of when a proper warning had been given; another example of what was not done in this case.

McHUGH J:   But this is part of the problem with the Full Court’s judgment and order, is it, that Justice Wallwork’s judgment refers to various warnings that might have been given, depending upon doctors, but he does not choose between any of them except to say in a general way that there should have been a warning about TMJ.

MR HEENAN:   Your Honours, I appreciate the time.  I have on several occasions said that there are passages in the evidence of Dr Punnia‑Moorthy dealing with risk and the type of warning that could be given.

McHUGH J:   Yes.

MR HEENAN:   May I simply give the appeal book references.

GLEESON CJ:   Thank you.

MR HEENAN:   Appeal book volume 2, pages 251 to 253; also, 254, 255, 261, 281 and 282, 286 and 287, 295 and 296.  The substance of that evidence is that Dr Punnia‑Moorthy who works as a consultant in a major public hospital in Sydney explains that in circumstances such as this he would recommend a warning and that the dental registrars would usually carry it out and he indicates at page 255 the particular factors that he would draw to the attention of the patient, and he does that again at page 281.  Other than that, we rest on the material in our written submissions, your Honour.

GLEESON CJ:   Thank you, Mr Heenan.

MR HEENAN:   My learned junior has pointed out that your Honour Justice Callinan inquired whether there was any further evidence in the case about the warnings which would be given by other consultants.  I answered that in part by referring to the evidence of Dr Punnia‑Moorthy.

CALLINAN J:   I have looked at those.  They are all in your written submissions, are they not?

MR HEENAN:   Yes, your Honour.  There is a passage in the evidence of Professor Goss at appeal book volume 1, page 220.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Heenan.  Yes, Ms McLure.

MS McLURE:   Your Honours, the appellant deals in his reply with the matters canvassed by Mr Heenan concerning the factual findings made by the trial judge.  I do not intend to go to the evidence, unless your Honours wish me to do so.  We rely upon the submissions in writing in the reply and the references that we set out there.  Perhaps if I can just say that we are in disagreement with the inferences drawn by Mr Heenan from the evidence concerning the significance of the pre‑operative procedure, whether it created an increased risk of TMJ and these matters are dealt with in paragraphs 3, 4 and 5 of the appellant’s reply.  If your Honours have no questions of me we are content to rely on the written submissions.

GLEESON CJ:   Thank you, Ms McLure.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.

AT 3.55 PM THE MATTER WAS ADJOURNED