Tabet v Gett

[2009] HCATrans 209

[2009] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2009

B e t w e e n -

REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN

Applicant

and

DR MAURICE GETT

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 11.50 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.L.A. LONERGAN, for the applicant.  (instructed by Slater & Gordon)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS K.C. MORGAN, for the respondent.  (instructed by Blake Dawson)

FRENCH CJ:   Mr Jackson, it might assist us to hear from you first.

MR JACKSON:   Your Honours, as is apparent from our summary of argument, the primary contention is that there should not be a ground of special leave because the principal issue is one which has been considered at length in the reasons of the Court of Appeal and, in our submission, in a manner which should be regarded as determining the issue.  Your Honours, in particular we would submit the Court of Appeal’s reasons in the matter involved consideration of all relevant Australian and overseas decisions and the result arrived at is entirely orthodox.  Your Honours, we would also say that the appellant, of course, would prefer a different result, but what is there to say that the decision is wrong and, if so, in what respect?  Your Honours, that is the primary position we have put.

Could we go on to say then that if the Court were to take a different view and consider that the matter gave rise to an issue meriting the grant of special leave, it is important to identify, we would submit with respect, the ambit of the grant of special leave.  We would submit in that regard that it should be limited to the issue which is referred to – and may I do this, your Honours, by reference to the grants of appeal in the draft notice of appeal at page 331.  We would submit that it should be limited to the ground numbered 2 in the draft notice of appeal.

Your Honours, in relation to that and the other suggested grounds, could I go to the underlying case for a moment.  It is this, your Honours:  the applicant suffered significant brain damage which was found to have occurred because of the four reasons which are set out by the primary judge at page 143.  May I take your Honours to that for a moment.  It is page 143, paragraph 382.  It goes over to the top of the next page.  Your Honours, the judge went on to say at paragraphs 383 and 384 that of those four contributors, the first, third and fourth contributor would have occurred in any event.  That gave rise to a need to determine what part the four causes played in the totality of the damage.

In that regard, at paragraph 429 at page 159 the judge held that the second event, the 14 January seizure, contributed no more than 25 per cent, but the evidence did not establish that the seizure was more likely than not caused by the negligence of the respondent.  Rather, as the primary judge held at page 113, paragraph 306, there was only a prospect that the seizure on 14 January was caused more likely than not by the negligence of the respondent and that the result was that his assessment of that prospect, which your Honours will see at paragraph 378, page 141, was 40 per cent.  So, your Honours, that meant that the applicant was entitled to 25 per cent of the total damage.  Your Honours will see that at paragraph 379 on page 143 and then page 161, paragraph 434.  Of course, that was at the trial.  Your Honours, the Court of Appeal took a different view on the quantification of the prospect ‑ ‑ ‑

FRENCH CJ:   They got down below 15 per cent.

MR JACKSON:   Fifteen, yes, that is so, your Honour.  Your Honours will see that at page 186.

FRENCH CJ:   This was on the basis of the use of the steroids.

MR JACKSON:   Yes, your Honour, and also paragraph 245 at page 267.  Now, if the Court were to grant special leave, the core issue of importance for this Court, we would submit, would be that adverted to by the Court of Appeal at page 318 in paragraph 381.  I will not read it out, but your Honours will see that there.  That is, as we would understand – and I am sorry to have taken a moment to get back to the draft notice of appeal – and as we would assume, the issue which is sought to be raised by ground 2 in the draft notice of appeal at page 331.

GUMMOW J:   Was there any significance flowing from the Civil Liability Act?

MR JACKSON:   We think not, your Honour, no.  I say no direct significance.  Your Honours, could I just say this, that the difficulty is that the draft notice of appeal, in our submission, raises other issues which do not merit the grant of special leave to appeal.

GUMMOW J:   I would not have thought grounds 3 and 4 should concern us.

MR JACKSON:   That is just what I was about to say, your Honour.  That is the first thing.  They may be factors in granting special, but they are not issues that would arise.  But there are other matters.  If I could just go to ground 5.  Ground 5 is an attack, to put it shortly, on the Court of Appeal’s 15 per cent rather than 40 per cent holding.  It is based on the proposition, as your Honours will see in the last four lines of it on page 332, lines 56, 57, 58 and 59.  It seems to be based on the proposition that the Court of Appeal’s reduction was based on its view of the need for a balance of probabilities approach.

Your Honours, that is not correct and the Court of Appeal’s decision was purely based on a difference of view as to the facts.                 You can see that at page 266, paragraph 245.  That just appears to be an argument about the difference of view between the two courts on a factual issue.  But also, your Honours, there is no reason why the Court of Appeal should not have considered only what was the likely course of treatment.  Could we in that regard refer to our written submissions at pages 348 and 349, paragraphs 12 to 14.

FRENCH CJ:   You say it is disconnected from the loss of chance assessment.  I suppose the loss of chance of a better outcome is assessed at the point at which something that should have been done has not been done – that is, the relevant CT scan not taken earlier.

MR JACKSON:   Yes.  The point I was seeking to make is simply this.  There was evidence, the primary judge took the view it was 40 per cent.  The Court of Appeal said, “The same facts, it is 15 per cent”.

FRENCH CJ:   Depending on which treatment was followed, was it not?

MR JACKSON:   Yes, your Honour, that is so.  What I am seeking to say is that they took a difference of view.  There was a difference of view.  The difference of view was on a factual matter.  The only thing was that they said, “You look at the likely course of treatment that would have applied”.  Your Honour, what we are saying is that is not a separate issue meriting the grant of special leave and it is not an issue that should arise on the hearing. 

What we would also say, your Honours, if I could do so briefly, is in relation to ground 6.  There are two aspects of ground 6.  The first is a contention that primacy in some way has to be given to the treatment which actually was given at a later point of time.  This is suggested, your Honours, to be a matter of principle.  It is referred to in the applicant’s submissions in reply at page 355, paragraph 10.  Your Honours, we would simply say in relation to that that it just cannot be correct to say as a matter of primacy that that must be done.  We have dealt with that, your Honours, in our written submissions in paragraph 25 at page 351.

In relation to the other half of ground 6, ground 6(b), could we just say, your Honours, that if the burden shifted as a practical matter then it was satisfied in any event – could we refer your Honours to page 351 to our written submissions and paragraphs 26 and 27.  Could I pause at that point, your Honours.  I am not seeking to be nitpicking about the appeal, if leave to appeal is granted, but if it is granted on the ground that there is a substantial legal issue then we would submit the remainder of the case does not merit the grant of special leave in relation to those aspects.  They are not consequential upon it.

GUMMOW J:   It certainly looks so as to ground 7.

MR JACKSON:   Yes, your Honour.  I was about to come to that and just say this, that the primary judge rejected that claim as a separate head of damages for the reasons set out at page 76, paragraphs 213 to 217.  The Court of Appeal held there was no error in principle.  That seems plainly right, in our submission – page 322, paragraphs 390 to 395.  Your Honours, we would say special leave should not be granted in relation to that.  To put it shortly, your Honours, our first submission is that special leave should not be granted.  If the Court takes a different view then it should only be granted as to ground 2.

GUMMOW J:   If it were to be granted only as to ground 2 – and it is perhaps not for you to formulate – what would be the appropriate order in this Court?  It would not be simply reinstating the trial judge, would it?

MR JACKSON:   No.

GUMMOW J:   Because of the 15 per cent question.

MR JACKSON:   That is so, your Honour, yes.  That is an issue.  That is where the matter stands at present.

BELL J:   But is not ground 5 really bound up with the argument of principle?  The Court of Appeal approached the matter on the basis that if it were a head that were available the trial judge erred by putting out of his mind his view that the likely treatment would have been with steroids.  It just seems to me that when you come to consider if this is an available head how one approaches the issue - it might well be that matters in ground 5 are bound up with that argument of principle.

MR JACKSON:   Your Honour, that may be a possible view, but, in our submission, the position really does involve – I am sorry, may I start again.  One ends up with a situation where one really has two things.  One is that there is a question of what the standard of proof is required to be, to put it shortly.  There is also a question of what is the result of the application, assuming the applicant’s view of the standard of proof were to be accepted.  There is, however, a different question about what one is applying that to.  What one is applying that to is, in our submission, simply a situation where there was a difference of view between the two courts, but I appreciate in saying that that the reason for the difference of view was that the Court of Appeal said, “Well, you look to see what would have been the likely

treatment at the time”.  Your Honour, unless that itself involves some separate error then in our submission it is not really a separate ground.  Your Honour, those are our submissions.

FRENCH CJ:   Mr Walker, perhaps you can confine your response to the grounds upon which special leave should be granted and also the relief that you would seek if you were to succeed on ground 2 alone.

MR WALKER:   Thank you, your Honour.  If we were to succeed on ground 2 alone, it would be, of course, not the restoration of the trial judge; it would be damages on the 15 per cent of 25 per cent.  That, of course, is why, in our submission, in terms of the justice of the case for my client, ground 5, particularly when viewed against the setting of the Court of Appeal’s interference with an extremely careful weighing of what might be considered imponderables by the trial judge, is considered.

Before I move to ground 5, could I discard grounds 3, 4 and 7.  As to ground 6, in our submission there is an unfortunate formalism in the word “primacy”.  That is rather over‑egging the pudding of how one should go about that finding but, in our submission, ground 6, perhaps redrawn, is, as it were, a particular of why the error sought to be identified in ground 5 has, in part at least, come about.  That refers to the fact that in the relatively short time that elapsed between the 13th and the 16th with a hypothetical CT on the 14th, such was the damage already done that 25 per cent is the incremental loss found by the trial judge, upheld by the Court of Appeal, to be attributable to the negligence of the late ascertainment of the position that required the scan.

We then look to what would have happened hypothetically at that earlier time.  We are not talking weeks.  We are talking a very short time, although a time that had this only 25 per cent incremental effect on my client.  What actually happened is that Dr Maixner did do a drain after the CT scan which was eventually, upon a neurologist’s intervention, ordered.  That was done with Dr Johnston’s approval.  As you have read, the factual question on the hypothetical position as to what would have happened if the scan had happened at a time it would have happened without the negligence found, the Court of Appeal’s position is to treat it as an either/or – steroids or a drain.  That is not what the trial judge said and it is plainly at least the cause of a raised eyebrow when one considers what happened just a few days later.  It was not a question of steroids or a drain.

FRENCH CJ:   Does it fit into the loss of chance calculus which the Court of Appeal rejected?

MR WALKER:   Yes, because ‑ ‑ ‑

FRENCH CJ:   I wonder whether it can easily be disentangled.

MR WALKER:   We would say no because an appreciation of the nature of the chance, or perhaps one should use the word “opportunity”, represented by what it is held may have occurred – I stress “may have occurred” – following the proven negligence, the content of that lost opportunity is, we submit, the very subject matter and thus inextricable from considering the principle and policy of the law in relation to recovery where the plaintiff is in such dire straits that even the best care in the world cannot be held probably to bring a cure but will enhance your prospects of achieving a cure – that being, in our submission, the underlying and very important reason why ground 2 should be the subject of a grant of special leave.

In this case, an appreciation of the nature of the opportunity includes what I will call not so much differential diagnosis as different therapy upon the CAT scan producing knowledge of the tumour.  It is said in practical terms there were two choices – steroids or drain.  The Court of Appeal entirely incorrectly thought that the opportunity was either steroid or drain.  You reject drain because steroid is more likely than it.  That is not what the evidence said.  It is not what common sense suggests.

When one goes to the way in which the learned trial judge dealt with that matter at application book 141, paragraph 378, there is an important aspect of the matter which, in our submission, has not been properly appreciated.  Could I take your Honours to subparagraph (e) on the next page.  This is the opportunity or chance lost if the therapy had not commenced with what his Honour had held was more likely than drain – namely, steroids:

If, notwithstanding the prescription of steroids on 13 January, the decline had still occurred –

I interpolate it was Mr Johnston himself who rather was not confident about whether steroids would have made much difference, but they would have produced some benefit.  Then, said the trial judge, the elimination of the delay for the scans, the lateness of which is the gist of the negligence:

and the earlier insertion of the drain would have increased the chance of a better outcome.

In our submission, it is in a very narrow compass, particularly when one sees the way in which the matters are dealt with between pages 260 and 267 of the application book.  At no stage does the Court of Appeal’s reasoning show that they appreciated that it was never a choice between - an irrevocable choice between steroid and drain.  They were all part of the armoury and they would be wielded at an appropriate time and, as your Honours see, measured by a day, perhaps only by hours, between.  So, for example, at page 262 in paragraph 232 in the Court of Appeal, about line 50:

A finding that steroids was the more likely treatment can only be a finding that, more probably that not, it would have been the treatment administered.

This, with respect, is falsely to attribute to the judge an either/or, an irrevocable choice, which is quite contrary to the passage which their Honours then quote on the next page, 264, paragraph 238.  The key, with respect, is that on the strength of Mr Johnston’s evidence, the senior, against the more junior, albeit very confident, Dr Maixner, the trial judge had found, as it were, the first resort would be to steroid, but he certainly had not eliminated drain.  His Honour took all that into account in an unexceptionable way, which is not the subject of factual analysis, let alone disagreement, with his primary findings of fact by their Honours in the Court of Appeal when, without anything like the detail of explanation that his Honour went into at first instance, they moved from 40 per cent to 15 per cent.

It is for those reasons, in our submission, particularly when one requires the concrete content of the lost opportunity or chance to be appreciated in terms of the possibility of deploying steroid and drain – not if you choose steroid you are forever prevented from having a drain.  To the contrary the trial judge found.  That, in our submission, renders both in the administration of justice on the individual case plus also for the better appreciation by the court of the nature of the chance or opportunity which we say ought to be compensable – ground 5 – something that is a natural companion for ground 2.

GUMMOW J:   Mr Walker, a lot of attention has been devoted to the decisions of the House of Lords.  That is not the only common law jurisdiction in the world.  My impression is there is a whole lot of activity about this in the United States.

MR WALKER:   There most certainly is.  I hope your Honours have seen the Harvard Law Review that we sent up concerning the Matsuyama v Birnbaum decision in the Massachusetts Supreme Judicial Court.  It, in our submission, cuts to the very heart of the matter which, as a question of the policy of the common law, ought ‑ ‑ ‑

GUMMOW J:   What is the citation of that?

BELL J:   The Court of Appeal referred to this in their judgment, both to the case and to the Harvard Law Review article.

MR WALKER:   Yes, 890 N.E.2d 819 (Mass. 2008).  That is Matsuyama v Birnbaum, a case of a kind likely to recur, one regrets to say, namely, delayed diagnosis, caused by negligence, of a cancer which is not in the easily curable category; in other words, you do not start with a proposition that, without negligence, more likely than not you would have been cured – whatever that means – in relation to cancer.

GUMMOW J:   Has anyone looked at the situation in Canada?

MR WALKER:   Yes, there are Canadian decisions that have been looked at.  They are decisions with which we would need to grapple.  Those, in our submission, are most definitely reasons why there ought to be a consideration by this Court.

On ground 2, can I say this.  My learned friend says by way of, as it were, implicitly suggesting this should be the last word, what the Court of Appeal has said, that there were choices to be made, there has been a choice made.  But that, with respect, simply does not deal with the state of the law in Australia.  There is the small but not unimportant matter, I stress, of the Victorian Supreme Court, whose Court of Appeal has been, in very plain terms, disagreed with by the New South Wales Court of Appeal.  With respect, that is an occasion par excellence in the common law of Australia for this Court to intervene by a grant of special leave.  It is for those reasons, in our submission, that there ought to be a grant for grounds 2 and 5, understanding the relation of matters raised in 6, as caught up in 5 ‑ ‑ ‑

GUMMOW J:   You would have to draft your notice of appeal to put in 2 and 5 and have 6 somehow as explication of 5.

MR WALKER:   Quite so.

FRENCH CJ:   And also the relief under the alternative scenarios.

MR WALKER:   Yes.  The relief under the alternative scenarios is straightforward.  It certainly does not involve any boomerang back.  It is 15 per cent of 25 per cent or 40 per cent of 25 per cent if we win our main point.  So the second point will determine the size.  The first point, of course, determines whether there is anything at all.

GUMMOW J:   I also think there is a project for the restatement of liability in tort in which Fairchild and those cases need to be looked at it too.

MR WALKER:   Yes, your Honour.

GUMMOW J:   Restatement carries more weight than one particular state court in that country.

MR WALKER:   Yes.  May it please, your Honours.

FRENCH CJ:   There will be a grant of special leave on grounds 2 and 5 of the notice of appeal on the basis that the notice will be redrafted, including the grounds for relief.  Is it likely to go over a day, Mr Walker?

MR WALKER:   I think it will spill, yes, your Honour.

FRENCH CJ:   So we should allocate two or one and a half days for it.

MR WALKER:   Preferably two, yes, your Honour.

FRENCH CJ:   Thank you.

AT 12.18 PM THE MATTER WAS CONCLUDED