Shead v Hooley S18/2001

[2001] HCATrans 661

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2001

B e t w e e n -

GEOFFREY VERNON SHEAD

Applicant

and

RUTH LESLIE HOOLEY

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 11.21 AM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC:   May it please the Court, I appear with MR J.R. CLARKE, for the applicant.  (instructed by Phillips Fox) 

MR G.B. HALL, QC:   May it please the Court, I appear with my learned friend, MS S. NORTON, SC, and with MR A. J. LIDDEN (who did not appear in Court), for the respondent.  (instructed by Hunt & Hunt) 

GLEESON CJ:   Yes, Mr Higgs. 

MR HIGGS:   Your Honours, this is a medical negligence case where there are two findings appealed from.  First, there was a finding that there was proved a causal connection between a failure to warn of a probable risk and the damage of prolonged gastroparesis, which caused an operation to be carried out; second, that the material risk that should have been warned of was permanent gastroparesis.  Can I take your Honours to page 97 of the application book – it is page 87 – where Mr Justice Davies found that the trial judge – starting from line 15: 

did not make a finding as to whether Ms Hooley would have undergone an operation later after obtaining further opinion, holding that it was not material to do so, as, by that time, the circumstances would have been different from those pertaining at the time when she elected to proceed.  Although it was not expressly stated, I think it was inherent in his Honour’s findings that if Ms Hooley had sought a second opinion, the risks would have been reduced, if only because there would have been a later gastroscopy which would or may have shown that the chronic ulcer was healing. 

In our respectful submission, the finding that the risks would have been reduced were not open on the findings of the trial judge, nor by reference to the earlier reasonings of Mr Justice Davies, when he overturned that part of the trial judge’s decision which found that it was negligent for Dr Shead not to have delayed the operation at the time. 

In that regard, if I could then take your Honours to page 26 of the application book, where the learned trial judge found that causation had been established for two reasons:  first, because no proper warning had been given of temporary gastroparesis, which this lady never suffered from; and second, because the operation should have been delayed for the reason that, had it been delayed, the major gastric ulcer from which she was suffering would have found to have healed, or been healing, by virtue of the particular of negligence that was alleged against Dr Shead at the trial, namely, that he failed to perform an endoscopy or a procedure to look at the gastric ulcer at that time, and would have found that it healed or was healing, and hence, it was appropriate to delay the operation.  In particular, we rely on that part of his Honour’s judgment at lines 30 to 40, where he ‑ ‑ ‑

GLEESON CJ:   What page? 

MR HIGGS:   On page 26 of the application book, where first – if I could start at about line 20, his Honour inferred from Dr Vickers’ evidence that: 

further medical treatments that were available and known to him –

but did not appear to be known to Dr Elliott, and his evidence, Dr Vickers’ evidence: 

raised doubts in my mind that the cause of Ms Hooley’s pain before the operation was the pre-pyloric ulcer. 

He goes on: 

I find, more probably than not, that Ms Hooley would not, had Dr Shead fulfilled his duties, have undergone the operation when she did.  It is not material to the question I must determine that she may have undergone it later after obtaining further opinion, whether at the hands of Dr Shead or of some other surgeon.  By that time the circumstances would have been different from those pertaining at the time she was obliged to make the choice whether or not to proceed with the surgery. 

Hence, we say that, in reliance upon that part of the judgment, it is wrong, with respect to his Honour Mr Justice Davies, to have found as he did that it was inherent in his Honour’s finding that had Ms Hooley sought the second opinion, the risks would have been reduced, because the further endoscopy would or may have shown that the chronic ulcer was healed. 

GLEESON CJ:   I would like to understand this a little better than I do.  He has not yet begun to deal with the failure to warn case.  He is dealing with another allegation of negligence at that stage, is that right? 

MR HIGGS:   I am sorry, your Honour.  Can I take your Honours through the findings ‑ ‑ ‑

GLEESON CJ:   No, I am trying to understand the paragraph on which you just rely, and I am pointing to the context in which it appears. 

MR HIGGS:   His Honour there was dealing with the failure to warn case, but, in this context, it is important to understand that the trial judge made a finding of causation on the basis of two acts of negligence:  one, improper warning; and two, improper procedure. 

GLEESON CJ:   Yes, and we can forget about improper procedure. 

MR HIGGS:   That is so. 

GLEESON CJ:   And in relation to improper warning, there was a concession recorded on page 81, line 52, “there was no challenge” to the finding of negligence in relation to the warning. 

MR HIGGS:   That is so, but the warning that was found to be negligent in the court below was a failure not to warn of permanent gastroparesis, but a failure to warn of temporary gastroparesis, and we say that is relevant to the question of causation. 

GLEESON CJ:   I understand that, but just coming back to the paragraph that you have directed our attention to.  As I read it, the trial judge is saying that he finds that had Dr Shead given the warning, Ms Hooley would not have undergone the operation when she did.  He does not find one way or the other whether she would have subsequently undergone an operation, but he finds that, even if she had, by the time that operation had taken place, the circumstances would have been different.  Is that what it is? 

MR HIGGS:   He does find that, but the two findings of negligence, in our submission, have to be interrelated, because the finding there, about there being no difference, in part, depends upon his finding as to the impropriety of Dr Shead proceeding with the operation when he did.  That being something that was overturned on appeal upon the basis that it did not matter whether this particular ulcer, the main ulcer that she was suffering from, described in the judgment as the pre-pyloric ulcer.  It did not matter whether that ulcer was healing or not, because when one goes to the Court of Appeal judgment – or, more accurately, the judgment of Mr Justice Davies, his Honour sets out first the evidence of Dr Ellard, at page 69 of the application book, between lines 26 and 45, where Dr Ellard’s evidence was that the other abnormalities seen on the pathological report show that: 

“there had been chronic inflammation and so there may have been some superficial ulcers on that particular day –

that is, the day of the operation –

but the report does confirm that there was a chronic process going on.  The fact that new superficial ulcers are developing when this woman was on maximal treatment is really unusual.” 

That is the basis – that particular aspect of the trial judge’s findings were overturned. 

CALLINAN J:   Mr Higgs, there is another question, though.  Had your client warned the respondent of the possibility of a temporary condition of which I think the chances were about 1 in 10 – is that right? 

MR HIGGS:   Three to 9 per cent. 

CALLINAN J:   Yes.  That would almost certainly have excited interest in the possibility, I would have thought, of a permanent condition, as well.  I do not see that very much, myself, necessarily turns upon whether the warning was in respect of a temporary or permanent condition.  Once a temporary condition was mentioned, then surely an obvious question would be, “Well, how long will it last?  Can you be sure that it is temporary?” 

MR HIGGS:   May I make this concession, your Honour.  It seems to me, with respect, against me, that it was open for the trial judge to infer from the evidence that was given by the applicant that had she been warned of the 3 to 9 per cent risk, she would have deferred the operation.  But, in our respectful submission, that is not the end of the matter.  In relation to whether or not, in a failure to warn case, there has been discharged the requisite degree of proof in order to establish causation depends upon not so much whether there has been the creation of a risk, but – you cannot equate creation of a risk or a different risk, that is, undergoing surgery at some time later on, with damage. 

Rather, at the very least, even on the three approaches that are available and are referred to in the authorities as to the appropriate approach with respect to the evidentiary onus of proof that rests with the defendant, once the normal type of evidence is given, but, at the very least, we would submit, you would need to show an increased risk as being something which the patient faced when the delayed surgery or the delayed treatment was undertaken.  His Honour Mr Justice Davies, with respect, was mindful of that, because there is this curious passage, we would say, with respect to his Honour, at page 87, that I first took your Honours to, where, between lines 25 and 35, contrary to that finding by the trial judge that I just took your Honours to, that his Honour held: 

I think it was inherent in his Honour’s finding that, if Ms Hooley had sought a second opinion, the risk would have been reduced, if only because there would have been a later gastroscopy which would or may have shown ‑ ‑ ‑

CALLINAN J:   That does not deal with the matter I have just put to you.  What do you say about that, that warning of the possibility of a temporary condition would almost certainly have excited interest in the possibility of its becoming permanent, or of the possibility of a permanent condition? 

MR HIGGS:   No, I would not concede that, your Honour, but I would concede that, on the evidence, the trial judge found, and I cannot challenge, that she would have delayed the operation.  The chance of a permanent condition was 1 in 10,000 and the trial judge found that there was no duty to warn of that particular risk. 

CALLINAN J:   But this is a reason for warning, so that the patient can be properly informed, and because the warning might lead to more informed questions by the patient as to the condition generally. 

MR HIGGS:   That is a possibility, but it depends upon the ‑ ‑ ‑

CALLINAN J:   No, that is the reason for the warning.  It is the reason for the requirement of a warning – or one reason for it, anyway. 

MR HIGGS:   Well, that is so, to an extent, but, of course, the definition of “material risk” by this Court in Rogers v Whitaker has two aspects of it, that is, in part, an objective and a subjective element.  First, material risk that, unadorned by other evidence, a patient should be presumed to place weight on.  So, the normal types of risks that are significant, and the like.  Or, second, as in Rogers v Whitaker, where there was a 1 in 14,000 chance of total blindness rather than partial blindness, a risk that should be evident to the practitioner because of that practitioner’s knowledge of the particular patient’s subjective concern of that particular risk.  The 1 in 14,000 chance of blindness does not necessarily become a material risk unless the doctor should have known that that was material to the patient. 

That is normally proved by the patient saying, as in Rogers v Whitaker, that she asked a lot of questions and was particularly insistent on being given that information, but absent that inquiry, in the normal course of events, it would not be a material risk.  Likewise, in Chappel v Hart, where the prophetic words were uttered by the plaintiff, that she did not want to end up with a voice like Neville Wran – and, of course, she did, even though it was a very, very rare prospect of that ever happening.  But that only became a material risk because of the inquiry by the patient. 

My point is that, in relation to Mr Justice Davies’ findings, having recognised that in order to meet the requisite standard of proof that, in a legal sense, rests with the plaintiff; having recognised, on any approach ‑ and I will take your Honours to the approaches in a moment ‑ that it was important to find that there was an increased risk of danger – because that is the subject matter of what the duty to warn is aimed at, to allow a person to avoid a material risk that they would otherwise not undertake, the fact is that the finding that the risk of the operation, if delayed, would have been reduced is upon the basis that a further gastroscopy “would or may” – which is a curious use of words if it is to support the conclusion that the risk would have been reduced – “that the chronic ulcer was healing”. 

My point is that when your Honours go to that other part of the judgment, with respect to the overturning of the ground of the findings of the trial judge that Dr Shead was negligent in carrying out the procedure, his Honour’s findings were that the healing of the chronic ulcer at the time was irrelevant in terms as to whether or not that operation was reasonable.  Rather, in accordance with Dr Ellard’s evidence, and also Dr Hugh, it was the fact that, even though the chronic ulcer was healing, the woman whilst on maximal treatment was still undergoing this very unusual process of having other ulcers develop, and that that was the basis for the operation being carried out, and that had she gone off and obtained a second opinion, contrary to the opinion and evidence of Dr Vickers – who was the voice in the wilderness – the only person who said that it was appropriate to delay this operation and to have a gastroscopy performed, it was her symptoms that required her to be on pethidine, which was unusual, was rare.  That was the proper basis for the operation. 

That is the evidence that his Honour Mr Justice Davies relied upon in order to overturn that part of the judgment of the trial judge, at page 69, at about line 40.  Likewise, again, at page 73, lines 45 to 50, there is a reference to Dr Hugh’s evidence, where, in summing up, he says: 

“It was this intractable clinical course which was the indication for operation, and single endoscopic findings would be relatively unimportant in the overall management decisions.” 

Finally, at page 76, at about line 20, his Honour, after reviewing that evidence and referring to the chronic pain and symptoms that were being suffered by the respondent, concluded by saying: 

I merely point out that the decisions to operate may be made having regard to the total condition of the patient –

in reliance upon the evidence that I have just referred your Honours to. 

Your Honours, there are three bases or approaches that, in cases such as this, we would submit, may be relevant in relation to the thorny question as to whether or not a plaintiff has discharged the onus of proof.  One approach is the traditional one, namely, that the onus always relies on the

plaintiff.  At the other end of the spectrum, it is that, in accordance with some of the judgments of the New South Wales Court of Appeal, or some of the judges of the New South Wales Court of Appeal in minority have held, that there is a shift in the legal onus of proof.  Chappel v Hart does not stand for that proposition.  There is the intermediate course that, at a certain point of time, there was a shift in the evidentiary onus of proof. 

Now, in our respectful submission, Chappel v Hart was a case very different to this one.  It was different because, in that case, it was unquestioned, by reference to the findings of the majority, that there had been, or there would have been, an increased risk of damage or risk of injury to the plaintiff by virtue of her undergoing the procedure when she did.  In other words, had she delayed the operation because of the opportunistic, random nature of the infection that caused her ultimate damage and from which she suffered because the operation was carried out when it occurred, that that would have been avoided had the operation been delayed.  By reference to the majority judgments, that was the basis upon which that finding of causation, in terms of the evidentiary onus having shifted, was made good.  In this particular case, on a proper analysis, in our respectful submission, there was no basis to find that there had been any increased risk of injury ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Higgs. 

MR HIGGS:   If your Honour pleases. 

GLEESON CJ:   We do not need to hear you, Mr Hall.

The decision of the Court of Appeal turned upon the application to the facts of the case of established principles.  On the facts found, the case raises no issue of principle suitable for a grant of special leave to appeal, and there are insufficient prospects of success of an appeal to warrant such a grant.

The application is refused with costs.

AT 11.43 AM THE MATTER WAS CONCLUDED